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[2025] NSWSC 1493
General information, not legal advice.
Supreme Court of NSW
2025-05-14
Coleman J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Eriksen (No 2) [2025] NSWSC 1493
Hearing dates: 16 December 2024, 24 February, 3 March, 10 March, 14 April 2025
Date of orders: 14 April 2025
Decision date: 14 May 2025
Jurisdiction: Common Law
Before: Coleman J
Decision: It is not necessary to hold any inquiry with respect to the accused’s fitness to stand trial.
Catchwords: CRIMINAL LAW - procedure - whether fitness inquiry required – where lawyer raises the question of fitness of client
Legislation Cited: Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW)
Cases Cited: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
JM v R; R v JM [2017] NSWCCA 138
R v Presser [1958] VR 45
Category: Procedural rulings
Parties: The King (Crown)
Anthony Eriksen (Accused)
Representation: Counsel:
D Boyle & P Mulvihill (Crown)
Self-Represented (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Self-Represented (Accused)
File Number(s): 2023/00113797
The accused, Anthony Eriksen, stands charged with the murder of Lisa Fenwick. The trial of the matter is scheduled to commence on 5 May 2025.
The matter first came before me on 16 December 2024. At that time, the previous lawyers for the accused had been sacked by him, and new attorneys appeared. They were Mr Harrison of counsel instructed by Mr Newham, solicitor.
Because those lawyers had not had time to consider the brief owing to only recently having been engaged and due to the time of year, I stood the matter over to 24 February 2025. I expected at that time that the lawyers for the accused would be able to inform the Court if there were any pre-trial issues to be resolved.
On 24 February 2025, I was informed that the accused had terminated the instructions of Mr Harrison and Mr Newham. At the hearing, Mr Newham handed up an unsigned document styled “affidavit”, which stated the fact of the termination of instructions and contained a request that an order be made that the accused be assessed by a psychiatrist to assess his fitness to stand trial. Further details of that document are contained in my ex tempore reasons of 10 March 2025 (“the 10 March reasons”).
The matter was then stood over to 3 March 2025 with a request that a representative from Legal Aid attend to inform the Court of the status of the grant of aid to the accused and what is being, or could be done, to assist him in the engagement of new lawyers.
On 3 March 2025, the matter came back before me. Mr Doumit from Legal Aid appeared, in effect as amicus curiae. He informed the Court that the grant of Legal Aid to the accused remained open. He said he had written a letter to the accused with respect to the engagement of new lawyers. Unfortunately, that letter had not been received by the accused as at the date of that hearing. Mr Doumit noted that, as the accused had two changes of representation already, “he was running out of options”.
On that day, I said that I had concerns arising from the material provided to the Court on 24 February 2025 by Mr Newham. Those concerns stemmed from the fact of Mr Newham having raised the question of the accused’s fitness to stand trial. I said that I would consider what steps should be taken in respect to that matter.
I should observe that the accused objected to any part of the unsigned affidavit of his former solicitor being relied on. That was because it was unsigned and because he said he gave no instructions for it to be deployed. Whilst noting that objection I considered, as stated in the 10 March reasons, that given the issue of the accused’s fitness to stand trial had been raised, and without having formed any view, he should be assessed as to whether he was fit to stand trial. The matter was stood over to 10 March 2025.
On 5 March 2025, my chambers received a communication from Mr Doumit that the accused’s grant of legal aid had been terminated. The grounds of termination were that the accused had withdrawn instructions from, and failed to cooperate with, his legal representatives. The accused had refused to attend an AVL conference with Mr Doumit that day to discuss the desirability of him being legally represented at trial.
On 10 March 2025, the Court made orders pursuant to s 43 of the Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW) (“the Act”) that:
The accused undergo a psychiatric examination and that a psychiatric report be prepared of that examination addressing whether the accused is unfit to be tried for the offence for which he is indicted addressing the matters set out in Section 36 of that Act.
Direct Justice Health is to appoint a qualified psychologist to undertake that examination and prepare that report.
Direct that the examination take place and the report be prepared on an expedited basis.
Once prepared the report be provided to the Court and the accused with the Court then to consider if the report should be disseminated further.
The Crown is to provide a copy of the Crown Case Statement and Indictment to Justice Health NSW for that material to be provided to the psychiatrist appointed to conduct the examination and prepare the report.
My reasons for making those orders were set out in the 10 March reasons.
On 27 March 2025, my chambers received an email from the Court’s registry which forwarded an email received by them from Justice Health NSW. That email advised that “…our psychiatrist has attempted to conduct a psychiatric assessment on Mr Eriksen twice, unfortunately he refused on both occasions”.
I subsequently received a report from Dr Maryam Nesvaderani and Dr Kerry Eagle dated 2 April 2025. They are both psychiatrists in the NSW Community Forensic Mental Health Service. In that report the doctors indicated that they attempted to assess Mr Eriksen via AVL on 18 March 2025 and 26 March 2025. Mr Eriksen declined to attend the assessment on both occasions. They prepared a report based on the information they had available to them. They noted that as Mr Eriksen declined to participate in a clinical psychiatric assessment, their recommendations were based on the limited information available to them. They stated that the absence of a clinical assessment gave rise to significant limitations in their ability to provide a reliable opinion on the presence or absence of a mental health condition and on his fitness to be tried.
The doctors had available to them the Justice Health and Forensic Mental Health Network medical files dealing with the accused and the Crown case statement. They also liaised with a Justice Health Clinical Nurse Consultant who had dealings with the accused.
Their report noted that the accused was arrested and charged on 9 April 2023 and has remained in custody since. The report stated:
“On 10 April 2023 a registered nurse, Poh Lee, performed a welfare check, given it was Mr Eriksen’s first time in custody and the high profile nature of his charges. She noted that he “appeared to be in a good mood and easy/ responsive engagement”. Mr Eriksen was placed on a Risk Intervention Team (RIT) protocol, which is used when patients are at risk of self-harm, as a precautionary measure. He was assessed by the RIT team on 11 April 2023, who noted that he was tearful at times but engaged well and did not appear overly agitated or distressed. He denied any history of mental health diagnoses or treatment and the team did not identify any features of mental illness. During RIT review on 13 April 2023 Mr Eriksen reported he felt much better, and found the time alone in a safe cell to be beneficial as it “gave me time to think”. Mr Eriksen said he was eager to share a cell to “have someone to talk to”. There were no signs of mental illness identified by the team on that review. On the final RIT review on 14 April 2023 he was noted to be bright in mood, jovial and reactive. He was discharged from a RIT into normal cell placement.
Mr Eriksen was reviewed by the mental health nurse, Jyothirmayi Yaragonda on 17 April 2023, as a routine measure due to the nature of his charges. He denied any mental health history or any current concerns. On mental state assessment he was noted to be jovial and reactive with no psychotic features.
Mr Eriksen was seen by a social worker, Emily Harris, on 19 April 2023. This was at the patient’s own request. He complained about feeling isolated. Of note, he stated he was struggling [at the time of the incident the subject of the charges]. Mr Eriksen also commented on “not dwelling on the past”. Ms Harris noted that he frequently diverted the conversation to topics of nutrition, food and diet as well as the roles of government and health care systems. Ms Harris noted that Mr Eriksen appeared very calm and that she has concerns about his relaxed appearance given the nature of his charges, first time in custody and lack of social supports.
On 8 January 2025 there is an entry in Mr Eriksen’s file relating to him making a request for his medical records with Justice Health to be released to him.”
After setting out the allegations with respect to the circumstances of the offence from the Crown Case statement, the report noted that the accused had denied any history of mental illness when asked by mental health nursing staff. It referred to his drug and alcohol history. He told the mental health nurse he drank one or two glasses of red wine on one or two days a week. He denied using any illicit substances or having any previous relevant medical history. The report recited his personal history from information gleaned from the notes of his dealings with the mental health nurses and social workers whilst in custody.
The report concluded:
“DIAGNOSTIC FORMULATION
On the basis of the information available to us, we are not able to identify or exclude whether Mr Eriksen has any mental health diagnoses. His presentation on reception into custody appears to be incongruent (inconsistent) with his circumstances. Mr Eriksen has not had a psychiatrist review. A psychiatrist review would be of significant benefit in determining whether he has any mental health conditions that may be relevant to his presentation, including his fitness for trial.
OPINION
We have been asked to conduct an assessment of Mr Eriksen to determine if he can satisfy the criteria for fitness to be tried, as set out in section 36 of the MHCIFPA 2020. Section 36 of the MHCIFPA 2020 states that a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment or both or for any other reason, cannot do one of the following:
(a) understand the offence the subject of the proceedings,
(b) plead to the charge,
(c) exercise the right to challenge jurors,
(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
(e) follow the course of the proceedings so as to understand what is going on in a general sense,
(f) understand the substantial effect of any evidence given against the person,
(g) make a defence or answer to the charge,
(h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary,
(i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court.
Mr Eriksen has not been able to be assessed for the purpose of this report. He has not been diagnosed with or identified as having any mental health conditions since his reception into custody. However, he has not had a psychiatric assessment at any time in custody and we have limited collateral information regarding his mental state or presentation.
Mr Eriksen would benefit from a psychiatric assessment. While there is no documented history of mental illness, there is evidence of unusual behaviour in custody which warrants further assessment, such as his incongruent presentation on reception into custody i.e. he was described “jovial” in mood. Mr Eriksen has refused to cooperate with requests, such as attending mental health nursing review, and has refused to attend a court ordered psychiatric assessment on two occasions.
It may be that the court determines, on the available information including Mr Eriksen’s apparent lack of participation in the proceedings, that he is unable to satisfy one or more of the above criteria for fitness to be tried on the basis that he has not shown the capacity to plead to the charge; or to provide instructions to legal representatives so as to mount a defence, or to provide a version of the facts to that legal representative and to the court, if necessary; and/or shown the capacity to decide what defence he will rely on and make the decision known to his legal representative and the court.
RECOMMENDATIONS
We respectfully make the following recommendations with a view to assisting the court in evaluating Mr Eriksen’s capacity to participate in his proceedings:
1.We may be assisted in determining if Mr Eriksen has any mental health impairments, and/or is unable to satisfy the fitness criteria, if we can speak to Mr Eriksen’s family to obtain additional information regarding his history and presentation. The contact details for Mr Eriksen’s next of kin/ family have not been made available to Justice Health by Mr Eriksen. If the court sees fit and can provide this information to us, we can attempt to contact Mr Eriksen’s family and provide an updated report to the court.
- If Mr Eriksen were found by the court to be unfit to be tried, on the basis of his lack of participation in the proceedings as suggested above, Mr Eriksen would be referred to the Mental Health Review Tribunal (MHRT). The MHRT can order, if felt to be appropriate, that Mr Eriksen be transferred to a mental health facility for a psychiatric assessment, further observation and treatment if required.”
Plainly, the report did not provide any diagnosis of the accused as suffering from a mental health or cognitive impairment. It noted he would benefit from a psychiatric assessment but had refused to engage in that process. I did not consider there was anything in the report which gave rise to any matters which would, of themselves, raise a concern that the accused was not fit to be tried.
On 14 April 2025 the matter came back before me. Despite directing that the report be sent to Mr Eriksen, he had not received it at the time of the directions hearing. I asked whether he would attend a psychiatric assessment if I directed it occur. He said: “No, thanks”. In those circumstances, I saw no reason to order an assessment again.
It seemed to me that it would be appropriate to ask the accused, in a modified way, some questions to assess as best I could, his understanding of the process of the trial and the nature of the charge he was facing (see R v Presser [1958] VR 45). [1] Whilst those questions were leading in their nature, there was nothing in the answers, or in the way the accused answered them, which gave me any concern as to whether he understood the questions or was unable to answer them.
I again informed Mr Eriksen that it would be in his best interests to be represented by lawyers at the upcoming trial and that Legal Aid had indicated they would reinstitute the grant of aid. He declined and reiterated he intended to represent himself at the trial.
I note that there is a presumption that a person is fit to stand trial: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [86] per Gaudron J; JM v R;; R v JM [2017] NSWCCA 138 at [178]. The question of the accused’s fitness only arose in this case because of the statement in the document provided to the Court by his former solicitor Mr Newham on 24 February 2025. That question having been raised, I felt that I was obliged to make the orders I did on 10 March 2025. There was nothing that I had observed or heard which, absent the statement by Mr Newham, would have caused me to raise the issue of the accused’s fitness to stand trial.
There is nothing in the report of 2 April 2025 which would prove that the accused is unfit. True it is that the report is very limited by reason of the accused’s refusal to submit to a psychiatric assessment. It is also true that the psychiatrists said that the accused would benefit from such an assessment. However, I did not see the benefit of ordering another assessment when the accused had told me he would not comply and attend. That is particularly so when he had shown no signs in all of the hearings before me that he had an impairment or other mental health issue which meant he could not understand what was happening in court. He engaged fully in the process and asked and answered questions relevant to the proceedings.
I do not consider there is any material which would displace the presumption of fitness.
Insofar as the orders I made on 10 March 2025 require any additional orders with respect to whether an inquiry should be held, I do not consider it is necessary to hold any inquiry with respect to the accused’s fitness to stand trial. [2]
Accordingly, the trial will commence on 5 May 2025.
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Tcpt, 14 April 2025, 2.44-4
See s 41 of the Act
R
Eriksen
(2000) 203 CLR 1