Kesavarajah v The Queen [1994] 181 CLR 230R v Munday [2021] NSWDC 374R v Risi [2021] NSWSC 769
Judgment (1 paragraphs)
[1]
Judgment
Yesterday, the Court embarked upon a fitness hearing in connection with Mr Grey (a pseudonym). That hearing commenced here in Campbelltown,- although the relevant Court file was (and remains) in the Downing Centre.
Mr Grey has been charged with numerous alleged offences against four of his nieces and nephews, commencing in January 1994 and allegedly continuing up to the end of 2012.
Mr Grey was committed for trial in relation to those allegations on 6 June 2021 and, at the time of committal, the question of his fitness was noted by the committing magistrate.
Ultimately, the list judge in the Downing Centre, his Honour Judge O'Brien AM, on 27 August 2021, ordered that a fitness inquiry be conducted in the District Court on 17 November 2021 and that inquiry was subsequently transferred to me here in Campbelltown.
In the inquiry, the Crown was represented by Ms Sloane, Crown Prosecutor, and Mr Grey was represented by Mr Neild, public defender.
There being some doubt as to whether or not Judge O'Brien made an order in accordance with s 40 of the Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW) on 27 August 2021, I made an order determining that an inquiry should be conducted before the hearing of the proceedings, and I proceeded to hear that inquiry yesterday.
In that inquiry, the Crown filed in Court a different indictment to that which had been before the Court on previous occasions. The indictment filed yesterday was indictment 7.6. However, in general terms, the allegations against Mr Grey in the various iterations of the indictment have been more or less consistent. Nonetheless, upon the filing of indictment 7.6 in the Court, each of the 69 counts (some of them in the alternative) were read to Mr Grey but he was not required to enter any plea in relation to any of the counts.
In the inquiry which then proceeded, an amended Crown case statement was tendered.
The following expert reports were also tendered. Two reports were tendered by Dr Richard Furst who was retained by the accused. Those reports were dated 9 February and 18 August 2021. Two reports were tendered from Professor Greenberg who had been retained by the Crown. Those reports were dated 9 June 2021 and 29 September 2021. Additionally, a report from Ms Nicole Skea, a psychologist, dated 20 March 2021 was also tendered. That report had been obtained by the solicitors for the accused.
Proceedings for an inquiry as to fitness are not to be adversarial. It is, in that context, unfortunate that Doctor Furst chose to use somewhat inflammatory language in his second report - but more so as he is a very experienced practitioner in this jurisdiction.
It had been the intention of the parties that, in addition to the written evidence of those experts, each of Dr Furst and Professor Greenberg would give supplementary oral evidence.
Dr Furst commenced his oral evidence yesterday afternoon but as has been frequently the case over the past four months or so (as the Court, as well as the general community, has been struggling with the consequences of the COVID‑19 Pandemic) the evidence of Dr Furst was punctuated by frequent technical difficulties.
It is also unfortunate that the somewhat combative nature of Dr Furst's second report seemed to be flavouring his oral evidence.
But that evidence was never completed. Because of the technical difficulties I have referred to, the hearing was adjourned and a date in the new year was fixed for the continuation of the oral evidence of the two experts.
However, once the experts had been released, the parties came to the sensible view that little could be really added to the nature of the inquiry from further oral evidence.
The new year hearing date was therefore vacated, and the parties agreed that the enquiry could be completed on the written evidence and so much of the oral evidence of Dr Furst as had been given.
The parties have prepared detailed and helpful written submissions.
At the outset, it is probably appropriate to note that both of the experts prepared their reports by focusing their attention on the common law criteria for fitness captured by R v Presser [1958] VR 45 and Kesavarajah v The Queen [1994] 181 CLR 230.
The relevant criteria are no longer those enunciated in those two cases but rather the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act (as to which see generally R v Munday [2021] NSWDC 374, per Haesler SC DCJ).
Fortunately, the focus of the experts has not caused any reduction in the weight of the evidence. This is because the fitness test set out in s 36 of the Act in effect mirrors the common law position in Presser. Moreover, the consideration to be taken into account in s 44 mirrors the common law considerations in Kesavarajah.
However, it would be desirable in the future if experts, when retained by parties, could be directed to the statutory provisions and for the common law references to fall away.
Each of Dr Furst and Professor Greenberg have concluded that, at the present time, the accused is unfit for trial by applying the two common law cases and that means by, fortunate coincidence, the relevant statutory provisions.
But there are differences of significance in their approach. Without rehearsing them in detail, the reports each of them have concluded that the accused has a cognitive impairment. They disagree as to the extent of the impairment. Dr Furst regards it as more substantial than Professor Greenberg. Notwithstanding that disagreement as to degree, they each conclude, on that basis alone, the accused is unfit.
Dr Furst also concludes that, in addition to having the cognitive impairment that he has identified, Mr Grey also has a mental health impairment, namely the disease of schizophrenia. And he is quite firm in his diagnosis of that disease. This is another point of difference between Dr Furst and Professor Greenberg. Professor Greenberg does not state that Mr Grey does not have schizophrenia. Professor Greenberg says he possibly has it, but he is not prepared to go further, one way or the other.
There is a third area of difference between Professor Greenberg and Dr Furst, and this area of difference flows from the other areas of difference I have identified. And it is a point of significance in this inquiry. Dr Furst is of the view that both the cognitive impairment and the mental health impairment are such that in his opinion Mr Grey definitely will not become fit for trial in the next 12 months. Professor Greenberg on the other hand, by having regard to his diagnosis as to the extent of the cognitive impairment and his hesitation in making a firm finding of mental health impairment, concludes that, if certain steps are taken (which he identifies), Mr Grey may become fit for trial in the next 12 months.
This is a significant point of difference between the parties because there are meaningful consequences depending on which conclusion the Court arrives at.
If the Court determines that the position is as Dr Furst contends for, then the outcome must be that the matter must proceed to a special hearing - so much as mandated by s 48.
If the Court determines that the accused may become fit in the next 12 months then he is referred to the Mental Health Review Tribunal - so much is mandated by s 49.
As Beech‑Jones and Hamill JJ have noted in the respective decisions of R v Risi [2021] NSWSC 769 and R v Lailna [2021] NSWSC 1205, s 47(1) of the Act provides the Court with only a binary choice. To quote Beech‑Jones J (referring to that section in para 55 of his Honour's judgment in Risi):
"That provision" that is s 47(1) "posits a binary choice for the Court as to whether a person "may become fit to be tried for the offence" or "will not become fit to be tried for the offence." The subsection does not contemplate the possibility that the Court may be in a state of uncertainty about whether one or another is the correct position. The contrast between the wording of the two sections suggests that a finding in terms of s 47(1)(b), the effect of which will be to exclude the Mental Health Review Tribunal from assessment of the accused, is one that should only be made if there is a real certainty as to the accused's lack of fitness during the relevant 12‑month period."
His Honour went on to say at para 57 (having reviewed the evidence given before him in that case):
"The material does hold out a realistic possibility, even though it is not a likelihood, that, via appropriate treatment in a hospital setting, the accused could become fit over the ensuing 12 months. Accordingly, I am (just) not satisfied that the accused will not become fit to be tried for the offences in the relevant period."
That latter passage by his Honour is particularly apposite on the material presently before the Court.
Like his Honour, I am satisfied that the material, particularly the evidence of Professor Greenberg, holds out a realistic possibility, even though it is not a likelihood, that with appropriate treatment in a hospital setting, this accused could become fit over the ensuing 12 months. And like his Honour accordingly I am (just) not satisfied that the accused will not become fit to be tried for the offences in the relevant period.
I find that, in accordance with the Mental Health Cognitive Impairment Forensic Provisions Act 2020, the accused Mr Grey is unfit to be tried on the offences the subject of indictment 7.6 filed against him in this Court.
Pursuant to s 47(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act on the balance of probabilities I find that in the 12-month period from today he may become fit to be tried for those offences. I therefore order that the accused be remanded in custody.
I order that, pursuant to s 49(1) the Mental Health Cognitive Impairment Forensic Provisions Act, Mr Grey be referred to the Mental Health Review Tribunal.
I direct that a copy of these remarks and exhibit A be sent to that tribunal by the registrar.
If in the 12 months the accused becomes fit, or if the Director orders a special hearing, then the matter will be transferred back to the Downing Centre for hearing in that registry, but for the time being the file will remain in Campbelltown.
EXTRACT CONCLUDED
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: 21 January 2022
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Grey
Legislation Cited (1)
Mental Health and Cognitive Impairment Forensic Provision Act 2020(NSW)