Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Ryan Paten Le (Honeysett)
Styles Law Solicitors (Carberry)
File Number(s): 2020/265333; 2020/335222
[2]
Judgment
In the week before the commencement of a pre-trial hearing relating to the joint trial of Jye Honeysett and Simon Carberry for murder, an issue arose as to whether Mr Honeysett is fit to stand trial. The Court conducted an inquiry under s 42 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). The inquiry was conducted in a non-adversarial manner by a Judge sitting alone, neither party assumed an onus of proof and Mr Honeysett was represented by a solicitor and Senior Counsel. [1]
On 9 February 2023, I found that Mr Honeysett was fit to be tried and, pursuant to s 46 of the Act, the criminal proceedings recommenced. These are my reasons for making that finding.
The pre-trial hearing was to involve two major issues, and other less substantial ones, and was listed in Sydney for seven days, over two weeks. The first issue was whether an electronically recorded interview between investigating police and Mr Honeysett ("the ERISP") was admissible. A matter relevant to the objection was the extent of Mr Honeysett's cognitive impairment. In preparation for the voir dire in relation to that issue, a psychologist (Dr Travis Wearne) was engaged to provide a psychological assessment and cognitive testing. Ms Le, the solicitor who instructs Senior Counsel for Mr Honeysett, was seeking to obtain data from Dr Wearne when another psychologist within the same practice volunteered that they had concerns as to whether Mr Honeysett was fit to stand trial.
I interpolate that Ms Le was retained to appear very late - in November last year on a referral from the Legal Aid Commission - when the in-house Legal Aid lawyer with carriage of the matter went on "indefinite leave" and no longer had access to the file. Once Dr Wearne's colleague shared their opinion with Ms Le, her only responsible professional choice was to seek a formal opinion. Accordingly, Dr Wearne was then engaged to provide an opinion on the issue. On 17 January 2023, he reported (in writing) that he believed Mr Honeysett was not fit to be tried. Ms Le promptly advised both the Prosecutor and the Court that the issue of fitness was a live one. The pre-trial hearing was delayed because the Act requires the issue of fitness to be determined urgently. [2] I raise those background matters to explain why the issue has arisen so late, [3] and to dispel any hint or suggestion that this judgment contains any criticism whatsoever of Mr Honeysett's current lawyers.
By the time Dr Wearne provided his report on the fitness issue, the prosecution had engaged Dr Susan Pulman, another forensic psychologist, to give evidence on the issues raised on the application to exclude the ERISP. However, Mr Honeysett did not consent to being interviewed by Dr Pulman. Her report, and the opinions stated therein, was based on a review of the papers, the results of testing performed by others and the report and opinions provided by Dr Wearne. Once the fitness issue arose, Dr Pulman conducted a short interview with Mr Honeysett in which she canvassed the issues relevant to whether he was fit to stand trial. She then provided a report which arrived on the first day of the fitness inquiry. I should add that this occurred over the Christmas and summer vacation period.
A joint bundle was tendered as Ex A. This included the reports of the two experts, the briefing notes to the doctors, relevant email correspondence, the ERISP (both the recording itself and the transcript) and other relevant material. The recording of the ERISP was played and each of the psychologists gave evidence and were questioned by counsel for the prosecution and the defence, and by me.
Based on the material tendered, there is no doubt that Mr Honeysett has some form of cognitive impairment. It was described variously as a "cognitive impairment" (as per s 5 of the Act), a "Mild Intellectual Developmental Disability" (as per the DSM-5), and as falling within the "borderline" range of intellectual functioning. Dr Wearne believes it falls within the diagnostic criteria for an intellectual disability while Dr Pulman felt it was in the "borderline range". It seemed, based on the evidence, that this was a question of degree. Both experts thought Mr Honeysett performed at the very low end (bottom 8%) of the overall population for intellectual functioning. Dr Wearne believed it was in the bottom 4% while Dr Pulman thought it more likely to be in the bottom 4th to 8th percentile.
Two issues raised by Dr Pulman were that, first, there were some wide variations in his performance depending on the nature of the test and, secondly, Mr Honeysett's education was compromised by poor attendance and that his lack of formal education may be pulling his scores down. Dr Pulman said that because of wide discrepancies in his results - what she described as a "scatter" - it was not appropriate to "average out" the scores to come up with a meaningful result as to his IQ and cognitive functioning. To take an example, while most of the testing generally produced results in the very low percentile range (1%-4%), Mr Honeysett achieved a communication score in the average range (37th percentile). Dr Pulman also raised the fact that some recognised tests were not administered, the testing was done remotely and that the better approach was to administer the tests in person. Even allowing for these "criticisms", if that is what they were, Dr Pulman agreed with Dr Wearne that Mr Honeysett is cognitively impaired.
These findings accord with testing carried out when Mr Honeysett was at school. In 2011 his intellectual functioning was assessed to be in the "extremely low range", and he was diagnosed with a "moderate intellectual disability".
The dispute between the psychologists as to the extent of Mr Honeysett's impairment was real but not, on this issue of fitness at least, of great significance. In the end, the opinions were not very far apart.
The real issue between the opinions concerned the impact of the cognitive impairment on Mr Honeysett's capacity to meet the standards or criterion in s 36 of the Act. The section provides:
(1) For the purposes of proceedings to which this Part applies, 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 another reason, cannot do one or more 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.
(2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.
Dr Wearne expressed the opinion that "on balance, I do not consider Mr Honeysett fit to be tried". Dr Pulman came to the contrary view. On this issue, I generally preferred the evidence of Dr Wearne. This was mainly because I found that Dr Pulman's assessment was somewhat peremptory with some issues and criteria not being explored. I will not criticise Dr Pulman because her report was prepared under great time pressure and the Court should be, and is, grateful to her for her contribution. The reality is if she had not managed to address the issue over the summer break, the whole of the trial proceedings would have been jeopardised. Even so, her examination was conducted over what seemed to be about 25 minutes and it was hard to tell whether she had given full attention to some of the answers Mr Honeysett gave to Dr Wearne on critical issues concerning fitness. Having said those things, as the evidence unfolded, it was clear that the experts shared some concerns and agreed on the kinds of modifications to the trial process, and support mechanisms, that could potentially alleviate any difficulties Mr Honeysett would have in the course of the trial. I will address very briefly the opinions and evidence on these issues, with focus on the criteria where Dr Wearne believed Mr Honeysett was compromised.
Both experts agreed that Mr Honeysett was able to understand the subject matter of the proceedings: s 36(1)(a). His answers given to both psychologists support this conclusion.
Dr Wearne expressed some concerns as to Mr Honeysett's ability to plead to the charge: s 36(1)(b). Some of his reported answers to Dr Wearne showed his understanding of the difference between pleading guilty and not guilty was rudimentary, pragmatic and somewhat eccentric and fatalistic. For example, he told Dr Wearne that pleading guilty "means you get sentenced quicker … I get sentenced and I get released … find out when I'm going home". He said pleading not guilty meant:
"Say that you didn't do it … sit in gaol until they find you guilty."
However, at least with respect to the fundamental issue - whether "he did it" - Mr Honeysett understands the difference and will be capable of entering a plea. Given the complexity of one of the bases of liability relied on by the prosecution as expressed in the Prosecution Case Statement - "as a party to a joint criminal enterprise to rob the deceased whereby his murder was constructive" - his lawyers have a challenging task in explaining the relevant concepts to him. [4] Neither expert appears to have addressed the distinctions between murder and manslaughter. Mr Honeysett's understanding of murder - "someone died … take someone's life" [5] and "causing the death of a person" [6] - betrayed no knowledge of the differences between the two forms of homicide.
Even so, I was satisfied that Mr Honeysett is capable of pleading to the charge, although I agree with Dr Wearne that his ability to do so will involve "the support of his solicitor".
Mr Honeysett's understanding of the jury system was limited and the idea of challenging jurors had to be explained to him by the psychologists. This is not unusual and, with the assistance of his legal team, he is capable of exercising his right to challenge: s 36(1)(c).
Mr Honeysett's responses to the psychologists demonstrated an understanding of the nature of the proceedings and that it was "an inquiry into whether [he] committed the offence with which [he and Mr Carberry are] charged": 36(1)(d).
I accept that Mr Honeysett's capacity to "follow the course of the proceedings so as to understand what is going on in a general sense" is somewhat compromised: s 36(1)(e). He is readily distracted and his attention span is short, matters referred to by Dr Wearne and evidenced by his conduct during the inquiry. However, he will be able to follow the proceedings particularly if the Court takes more breaks than usual and he has access to his solicitor during those breaks.
I accept the joint opinion of the experts that Mr Honeysett will be able to "understand the substantial effect of the evidence" to be given against him: s 36(1)(f). Again, some aspects of the evidence may need to be explained to him by his solicitor but he is in capable hands.
Dr Weare expressed the opinion that Mr Honeysett will not be able to "make a defence or answer to the charge" or "instruct [his lawyers] so as to mount a defence and provide [his] version of the facts to [his lawyer] and to the court if necessary": s 36(1)(g)-(h). The concerns arise from Mr Honeysett's expressed inability to remember the occasion on which the offence was allegedly committed or any of the important and surrounding circumstances. "He was unable to describe when the events took place or outline any of the details described in the Crown case statement". [7] He could provide only vague details of the victim. This led Dr Wearne to question his capacity to give evidence or to challenge the testimony provided by prosecution witnesses.
Dr Pulman expressed some scepticism of Mr Honeysett's lack of memory, noting the account he provided in the recorded interview was detailed and clear, albeit provided reluctantly. Neither psychologist could posit any positive psychological or neurological reason for the absence of memory, or how Mr Honeysett's memory may have diminished to such an extent since the ERISP in September 2020. One possibility that was canvassed was that this was some kind of trauma response, but neither expert appeared to be qualified to provide any opinion on this issue. Both referred to their experience of sexual assault victims and the impact of post-traumatic stress disorder ("PTSD") on memory. However, while Mr Honeysett was clearly distressed when recalling certain details of the event in his interview with the police, there has been no diagnosis of PTSD or vicarious trauma.
There are several possibilities. One is that he does have a memory but is being avoidant or dishonest. Tests for "effort" in the assessments did not suggest this, but not all available tests were administered. Another is that his memory has genuinely disappeared for reasons that are not known to the experts. Neither expert thought his cognitive impairment would cause such memory loss and his drug use and insomnia did not appear to prevent him from laying down memories in the first place.
By reference to academic writings, Dr Pulman noted legal authorities that establish a lack of memory of the events surrounding an offence does not equate to a person being unfit to stand trial. [8] Dr Wearne acknowledged this and Ms Mathur SC accepted that there a number of more recent authorities to similar effect. [9]
Ultimately, while his lack of memory of events (if accepted as being genuine) is of concern, I am satisfied that Mr Honeysett does meet the criterion in both sub-paragraph (g) and (h) of s 36(1).
I accept Dr Wearne's opinion that Mr Honeysett, "with the support of his solicitor", is able to decide "what defence [he] will rely on" and make that known to his lawyers and to the Court: s 36(1)(i).
Dr Wearne's concerns as to Mr Honeysett's fitness to be tried, arising from his cognitive impairment, distractibility and difficulties in regulating his behaviour are well founded. In stating that opinion, like Dr Wearne and in accordance with s 44(5)(b) of the Act, I gave serious consideration to the length and complexity of the trial. It is expected the trial will last 4 weeks, and possibly more. Some of the legal issues are complex, although the factual matrix and the nature of the evidence to be adduced, are relatively straightforward.
However, Mr Honeysett's difficulties are not insurmountable. As Dr Wearne acknowledged:
"So having an intellectual disability does not equate to being unfit. I would say of the more than 200 fitness assessments I have done, a lot of these would be people who have intellectual disabilities, and most of them would be found fit to go to trial. It does not necessarily equate that having an intellectual disability, that you are unfit, and I am not saying that, here. That just because he has an intellectual disability does not mean he is unfit to go to trial." [10]
Dr Wearne provided evidence as to the kinds of modifications and supports that could be put in place to assist Mr Honeysett. [11] He agreed that being present in the courtroom will be easier for him than appearing by way of video link (as he did on the inquiry). He said:
"Having the video link does, particularly if someone is more prone to distractibility, they're likely to be more engaged by other things in the room. If they're in the room before the Court it's likely that his engagement and attention would be better than via a video link, and it then also does provide the opportunity for him to have that support person." [12]
Dr Wearne recommended that the Court take breaks every 45 minutes to an hour, a procedure which was adopted in the course of the fitness inquiry. The Court can, and will, accommodate that. It will be less convenient, but also possible, for the Court to take days off during the trial. Dr Wearne said it is not just the sitting hours but the build-up of fatigue over days that may cause Mr Honeysett difficulties:
"In terms of day‑to‑day, the length of a trial, that's going to vary from person to person. Some people might find engaging quite cognitively fatiguing, so I would recommend having periods or days off every now and then so that his cognition could recuperate and his fatigue could recuperate." [13]
Finally, the possibility of a support person was canvassed. I am told that Mr Honeysett's mother will be in Court for the commencement of the pre-trial hearing next week in Wagga Wagga. I take there is no objection in her sitting with or near Mr Honeysett during that pre-trial hearing. However, a less emotionally attached support person may be more appropriate. When asked about whether he had in mind a "family member" as a support person, Dr Wearne said:
"A. Sometimes it's a social worker, sometimes it could be an advocate as well, so sometimes there are advocates that help support people through court processes, that are familiar with engaging and providing that support to someone with an intellectual disability as well.
Q. And would it be your proposal, or suggestion that they sit with him or?
A. Yeah, or close to him, yes. Yes." [14]
This may be more difficult to organise, especially on such short notice and in a regional centre. Immediately before the pre-trial hearing commenced, I made the following comments for the purpose of encouraging funding being organised:
"And before we start I think I'll just put this on the record. This morning I made a finding after a three-day hearing that Mr Honeysett is fit to be tried. That finding was to some extent conditional on a number of procedures being put in place which were recommended by either or both of the two experts who gave evidence in the fitness inquiry. Some of those can be organised by the court, namely the taking of breaks during the day, and possibly, if necessary, taking a day off here and there throughout the course of the trial.
However, another recommendation by one of the experts, Dr Wearne at least, and I think it was supported also by Dr Pulman, but in any event I agreed with it, is that because of his difficulties Mr Honeysett should have a support person in court. Whilst his solicitor is capable of fulfilling that role to a degree, I think it's too much of a burden to expect her to do that given her other important role in the trial and her need to maintain professional distance. How exactly that's going to be organised we do not know at this stage, I don't think the court itself can organise it. I would direct the parties to liaise with each other to try to facilitate that, and if it be necessary for funds to be expended on that process I would strongly recommend that the Legal Aid Commission extend the grant of Legal Aid in order for that to be facilitated. And this will be taken out by the end of the night and you'll have that to be able to take whatever steps you need to take." [15]
Later in the day, Ms Mathur suggested that it may be the Court which would provide a support person. She cited the provision of interpreters as analogous. However, my inquiries since the Court adjourned confirmed my instinct that the Court is not in a position to arrange, or fund, a support person. I have been advised that the arrangements concerning the provision of interpreters are quite specific and different. My Associate remains in contact with the parties. I confirm my recommendation that the Legal Aid Commission consider urgently extending the grant to include funding for a support person. I also note the role of the Director of Public Prosecutions ("the Director"), who initiates the proceedings on behalf of the State and the community and has a substantial interest in the trial proceeding. The Director often arranges support workers for survivors and secondary victims of crime, and for witnesses.
At this stage I have found that Mr Honeysett is fit to be tried. However, that finding was, to some degree, based on an understanding that he would have a support person in accordance with Dr Wearne's evidence. It cannot be predicted what may occur should that understanding be misplaced. I make these observations with great deference and do not mean to intrude into the Director's role or the role of those responsible for administering legal aid grants.
[3]
Endnotes
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 44(1)-(4).
Mental Health and Cognitive Impairment Forensic Provisions Act, ss 42(2), 43.
The Act provides in s 37(1) that the issue should be raised before arraignment but can be raised at any time during the proceedings. It is unnecessary to determine whether the reference to "arraignment" relates to the arraignment before the list Judge or that which occurs at the commencement of the trial.
Cf Rigney v The Queen [2022] HCATrans 112.
His words to Dr Wearne.
His explanation to Dr Pulman.
Report, Dr Wearne, 17 January 2023 at p 4.
R v Drummond (Court of Criminal Appeal (NSW), 27 May 1994, unrep) at 9-10; The Queen v Gregory Clive Griffith (Supreme Court (SA), 27 August 2008, unrep) at [30]; G Blake, K Ogloff and N Antolak-Saper, "Interpreting R v Presser: A Clinician's Guide to Contemporary Australian Fitness to Stand Trial Case Law" [2022] Psychiatry, Psychology and Law 1.
See, for example, R v Mark Joseph Smith [2008] NSWDC 23 at [8]; R v Weazel [2013] NSWSC 856 at [6].
Tcpt, 9 February 2023, p 56.
See Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 44(5)(a).
Tcpt, 9 February 2023, p 61.
Tcpt, 9 February 2023, p 59.
Tcpt, 9 February 2023, p 61.
Tcpt, 9 February 2023, p 68.
[4]
Amendments
08 March 2023 - Trial concluded - publication restricted lifted.
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: 08 March 2023