R v Drummond-Murray

Supreme Court of NSW|2018-12-05|Before: Button J

Introduction

On 5 December 2018, an indictment was filed in this Court before me by the Crown against Mr Matthew Drummond-Murray (the accused). For reasons that will become apparent below, he was not asked to enter a plea to any count on the indictment.
In short form, the first count alleged that, on 16 August 2017 at Surry Hills, he murdered Mr Stephen Mottram (the deceased). The second count, which was in the alternative to the first, alleged that on 6 November 2015 at Surry Hills, the accused caused grievous bodily harm to the deceased, with intent to murder him. The third count alleged that, on 7 November 2015, he assaulted a police officer acting in the execution of her duty. The fourth and final count alleged that, on 6 November 2015, the accused stole a knife.
As I shall explain in more detail below, the question of the fitness of the accused to stand trial on an indictment had been raised before that time; indeed, it had previously been determined more than a year previously by Judge Frearson SC in the District Court.
I had no doubt that, as at 5 December 2018, there continued to be a bona fide question about the fitness of the accused, in accordance with s 5 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act). Accordingly, a fitness hearing was conducted before me, and this judgment constitutes my reasons for finding that the accused is unfit to stand trial.

Procedural history

A précis of the progress of the matter through the criminal justice system is as follows.
As I have said, the physical acts underpinning the four counts in the indictment are said to have occurred over three years ago, on 6 and 7 November 2015.
The accused was arrested on the latter date, and has been in custody ever since.
He was committed for trial to the District Court (the deceased still being alive at that time) on 7 June 2016.
The question of his fitness was raised in the District Court; a hearing about that question was conducted on 3 February 2017; and on 9 February 2017 Judge Frearson determined that, on the balance of probabilities, the accused was unfit to stand trial.
On 8 May 2017, the Mental Health Review Tribunal (the Tribunal) determined that the accused was unfit to stand trial, and would remain so for twelve months.
As I have said, the deceased passed away on 16 August 2017. Thereafter, steps were taken to have an indictment containing a count of murder presented in this Court.
The accused first appeared before Fullerton J on 1 June 2018. Subsequently, a determination was made by the Chief Justice that it would be appropriate to permit additional counts three and four to be averred in an indictment in this Court.
At all times, it was understood between the parties, and made clear to the Chief Justice and Fullerton J, that the question of the fitness of the accused to stand trial in this Court would need to be resolved before any further procedural step were taken.

Aspects of evidence with regard to fitness to stand trial

I turn now to summarise very briefly the evidence placed before me, and its effect.
Professor Greenberg was qualified for the Crown many months ago. He has provided reports about the mental state of the accused dated 4 July 2016, 20 February 2018, and 23 September 2018.
In a nutshell, at all times Professor Greenberg has believed that the special verdict is available to the accused, on the basis that, at the time he attacked the deceased, he did not appreciate the moral wrongfulness of his actions. That is in turn on the basis of the chronic schizophrenia of the accused, which led him to believe (amongst other things) that voices (including the voice of Adolf Hitler) were commanding him to do things; that he had been romantically rejected by a woman who worked in a shop, and who in truth barely knew the accused; that he had fathered a child named "Fairy"; that he had been married at a wedding ceremony conducted by the late John Lennon; and that his mother was in fact the popular singer Taylor Swift.
In later reports, Professor Greenberg has noted that, regrettably, although the accused has been detained for over three years, and receiving antipsychotic medication under supervision through the entirety of that period, his mental illness remains resistant to treatment, and he continues to be substantially divorced from reality.
For a time, Professor Greenberg felt that, on balance, the accused was fit to stand trial. However, in his latest report of 23 September 2018, Professor Greenberg accepted that the accused is not so fit. That is chiefly because his mental illness would not only make it difficult for him to instruct counsel, but also because the accused would be incapable of giving a sworn account of the events of the days in question, "because of his ongoing acute active symptoms of psychosis and his marked negative symptoms of schizophrenia".
Dr Furst, qualified by the defence team, has provided four reports, dated 27 May 2016, 4 July 2016, 31 January 2017, and 1 September 2018.
Dr Furst has always believed that the accused has the affirmative defence available to him; again, that is on the basis that the accused, at the time of his alleged physical acts, was an untreated schizophrenic who was divorced from reality, and as a result incapable of judging the moral wrongfulness of his actions.
In contrast to Professor Greenberg, Dr Furst has always considered that the accused has been and is unfit to stand trial. In his most recent report, Dr Furst noted that, on interview on 24 July 2018, the accused was incapable of explaining the difference between a plea of guilty and the plea of not guilty. It is also very significant that, when discussing aspects of the well-known test in R v Presser [1958] VR 45, the accused spontaneously said that "Christina" had told him to plead guilty. He explained "she's a friend of mine in America. We're going steady". That indicated to Dr Furst that, as at a little over four months ago, and after three years of medication, not only did the accused remain frankly delusional, but also those delusions were directly informing his approach to his pending murder trial.
The final pieces of evidence placed before me at the fitness hearing were affidavits of the former and current solicitors of the accused. Each has spoken of their great difficulty in obtaining instructions from the accused that are anything other than nonsensical and incoherent.

Determination about fitness

In February 2017, Judge Frearson spoke of the matter being finely balanced. In determining that, on balance, the accused was then unfit, his Honour placed emphasis on the question of the accused being able to follow proceedings without being overly fatigued. And as I have said, at that stage, the two forensic psychiatrists were not in complete agreement.
But I think that things have developed since then: as at the date of the hearing before me, the schizophrenia suffered by the accused has not abated, and indeed shows itself to be treatment resistant; the accused remains frankly delusional, and those delusions are informing his approach to fundamental decisions to be made in any trial; the psychiatrists and the parties are now ad idem; and two solicitors have found it impossible to obtain proper instructions from their client.
As I remarked to defence counsel during the fitness hearing, I do think that an experienced and sensitive defence team can often explain, in very simple terms, aspects of a criminal trial to a client who is mentally ill or cognitively impaired, in such a way that he or she can sufficiently understand those aspects.
And I also think that some procedural aspects of a criminal trial are not well understood even by persons who are perfectly fit to be subjected to such a process; the rights of challenge for cause and peremptory challenge of prospective jurors spring readily to mind.
In other words, I think that one should not too quickly determine that a person is indeed unfit; apart from anything else, such a finding is very often logistically disadvantageous to an accused person, in terms of the allegation against him or her making its way through the criminal justice system.
But this is not a case, in my opinion, in which the defence team is able to assist the accused to take part properly in the proceedings. I say that because his unabated mental illness makes it impossible for him to do so. In particular, although I believe that the accused can be helped to possess a rudimentary understanding of the role of the judge, the jury, and the two legal teams, his mental illness makes it impossible for him to provide instructions; to understand the proceedings; to give any sort of sensible evidence; and to make the fundamental decisions that are ultimately vouchsafed to him and not his legal team.
In other words, although I believe that some of the components of the Presser test can be fulfilled by the accused, many of them cannot be. And considering the test as a whole, I am affirmatively satisfied that this man cannot play his proper part as a litigant in a murder trial.
It follows that, whilst appreciating that no onus is placed upon either party with regard to the question of fitness, I am satisfied on balance of probabilities that the accused is unfit to stand trial: ss 12(3) and 14 of the Act.

Orders

In addition to the above determination, I shall make some ancillary orders intended to advance the matter to its next stages.
I make the following orders: 1. I find the accused, Mr Matthew Drummond-Murray, unfit to be tried for the offences on the indictment with which he is charged. 2. Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), I refer Mr Drummond-Murray to the Mental Health Review Tribunal. 3. I adjourn the proceedings before this Court and remand Mr Drummond-Murray in custody until the determination of the Tribunal has been given effect. 4. The matter is listed for mention only in the next arraignments list of this Court at 10 am on 8 February 2019. 5. I direct the Registrar of the Court to forward to the Registrar of the Mental Health Review Tribunal: 1. The exhibits tendered before me; 2. A transcript of the hearing of 5 December 2018; and 3. A copy of this judgment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018

Mental Health (Forensic Provisions) Act 1990(NSW)

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