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[2012] NSWSC 1268
Supreme Court of NSW
2012-10-19
Button J
Original judgment source is linked above.
Introduction 1This judgment constitutes my reasons for a determination that the accused, who is charged with murder, is fit to stand trial.
Chronology 2This recitation is founded on the evidence tendered before me today, including some matters that were agreed by counsel at the Bar table. 3On 26 May 2011, the body of the deceased was located at a home in Doonside. The accused was arrested on the same day, and charged with murder on the following day, 27 May 2011. 4On 26 November 2011, Dr Susan Pulman, a clinical neuropsychologist whose expertise I readily accept, saw the accused in custody at the request of his solicitor. She had been asked to address a number of issues, including the fitness of the accused to stand trial. She provided a report of 15 December 2011. To summarise her report very succinctly, she described the accused as having suffered a very adverse background; having engaged in very longstanding abuse of illicit drugs and alcohol; and possessing a level of intellectual functioning that fell within "the extremely low range with his result falling at 0.4 of a percentile", including significant difficulties with attention and concentration, information processing, new learning and recent memory, and reading abilities. 5With regard to the test in R v Presser [1958] VR 45 (to which I shall return in a moment), Dr Pulman considered that the accused was able to understand the charge; understood the meaning of guilty and not guilty; had a rudimentary understanding of the right to challenge; understood the adversarial nature of criminal proceedings; demonstrated basic understanding of the various roles of persons in court; and understood in very simple terms what evidence is. 6However, Dr Pulman expressed "considerable concerns" about the ability of the accused to follow the course of proceedings, based on his level of intellectual functioning. She also considered that his heightened anxiety was likely to further impede that ability. She did not at that stage express a firm opinion as to whether or not the accused was fit to stand trial. 7In a brief supplementary report that must be of 5 April 2012, Dr Pulman reported having seen the accused again on 28 February 2012 for the purpose of further psychological assessment. In that report, she expressed the opinion that, on the balance of probabilities, the accused was unfit to stand trial. However, she went on to say "should his anxiety ameliorate considerably within the next 12 months there remains the possibility that his cognitive function will improve and accordingly he may become fit to stand trial." 8The issue of the fitness of the accused to stand trial was raised formally in this Court, at the latest, on the arraignment of the accused on 1 June 2012. The issue was raised by counsel for the accused. That occurred after she had engaged in a number of conferences with the accused that gave rise to concern on her part and the part of her instructing solicitor as to whether or not the accused was fit to stand trial. 9On 2 August 2012, Dr Stephen Allnutt, forensic psychiatrist, provided a report with regard to the fitness of the accused to stand trial at the request of the Crown. He had evaluated the accused in his offices on 29 May 2012. Again, I accept the expertise and experience of Dr Allnutt without reservation. 10Summarising that report, again with great succinctness, Dr Allnutt accepted the level of intellectual functioning discerned by Dr Pulman. He also recorded that the accused had told him that he would sometimes hear "the voice of Satan" both inside and outside his head, but Dr Allnutt was more inclined to regard such phenomena as arising from the underlying personality structure and anxiety disorder of the accused, rather than concluding that they were auditory hallucinations. 11Dr Allnutt recorded that the accused was suffering from a significant problem with anxiety, for which he had been prescribed medication. 12In short, Dr Allnutt found that "his [f]unctioning in my view is significantly impaired secondary to his multiple social and psychological problems." 13Dr Allnutt considered the requirements of the test in R v Presser, and generally found that the accused fulfilled those requirements. In short, Dr Allnutt was of the opinion that, although the accused had the cognitive ability to engage in the trial process, including providing instructions to his solicitor, it was in truth the underlying anxiety disorder that raised the issue of unfitness to stand trial. 14Dr Allnutt was of the opinion that the fitness issue was "marginal" based on the assessment at that time, but that it was likely that with support and exposure to the trial process the accused would, on balance, be fit to stand trial. 15Finally, Dr Allnutt suggested that any trial court might wish to take frequent breaks during a trial, and also ensure that the accused would have regular support available to him during the trial. 16On 11 October 2012, Dr Pulman provided a further report to the solicitor for the accused. By that time she has seen the accused again, on 12 September 2012, and had also read the report of Dr Allnutt. 17In short, Dr Pulman considered that the presentation of the accused had markedly improved since the two occasions when she had seen him some months before. Despite the continuing presence of an anxiety disorder and his continuing cognitive issues, Dr Pulman noted that the engagement of the accused in the interview process was increased, and that his responses demonstrated a capacity to comprehend questions, and to reason appropriately when he wished to do so. 18Dr Pulman also engaged in further questioning of the accused with regard to the test in R v Presser, up until the point when the accused indicated that he had had enough. 19Dr Pulman concluded her final report by expressing her opinion that on the balance of probabilities the accused is fit to stand trial. She expressed the opinion that his fitness is "based on the constant availability of a support person during the trial and the provision of frequent breaks to enable Mr James sufficient time to process court proceedings".
Aspects of hearing 20It is appropriate for me to recount very briefly the attributes of the hearing that I have conducted. 21I have conducted this enquiry because it appears to me that the question of the unfitness of the accused to be tried was raised in good faith: s 10(2) of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). 22In light of the offence with which the accused has been charged, I am certainly not of the opinion that there is any basis for determining not to conduct an enquiry and dismissing the charge and ordering the release of the accused: see s 10(4) of the Act. 23In accordance with s 11 of the Act, the question of unfitness to be tried has been determined by me sitting alone without a jury. 24Pursuant to s 11(2) of the Act, it is incumbent upon me to express my findings of fact, and enunciate the principles of law that I have applied to those facts. In light of the state of the evidence to which I have referred, I shall comply with those requirements, but in a suitably abbreviated form. 25In accordance with s 12(2), the fitness hearing was not conducted in an adversary manner. Nor, in accordance with s 12(3), did I approach the question on the basis that either party bore an onus of proof with regard to the question of the fitness of the accused.
Findings of fact 26I am satisfied in light of the expert evidence that the issue of the fitness of the accused has been raised in good faith. I say that whether one is focusing on the position of the accused or the position of his lawyers. 27Furthermore, I accept that each of the experts has accurately and diligently recorded his or her findings, including the details of interviews that they conducted with the accused. I also accept their undoubted expertise with regard to the question, and that they have asked themselves the correct question in expressing their opinions. Finally, I accept the correctness of their unanimous opinion.
Applicable legal principles 28The leading case in NSW has for many years been R v Presser. In a well-known passage, Smith J of the Supreme Court of Victoria said "And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him." 29In the next paragraph, his Honour set out the precise requirements of the test: "He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 30Although the question of fitness to stand trial has been considered by the High Court of Australia and the Court of Criminal Appeal of this State on a number of occasions since then, the principles enunciated in R v Presser continue to be applicable. So much was explicitly agreed by both counsel before me today. It is appropriate for me to refer briefly to two of those decisions. 31In Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 the plurality of the High Court emphasised that consideration of the estimated length of the trial is an important part of a fitness hearing. Emphasis was also placed upon the need for an accused to be fit at this time to stand trial throughout the whole of the trial, including at its conclusion. 32In R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251, the Court of Criminal Appeal emphasised that unfitness is not restricted to being founded only upon a mental illness or disorder, but includes intellectual disability and other matters. Emphasis was also placed on the "brake" provided by the requirement of "good faith" in s 10(2), Spigelman CJ focussing on the good faith of the accused. Wood CJ at CL stated at [227]: "while its content is undefined, I would find it difficult for a court to make a finding that a question had been raised other than in good faith, where the material available suggested that there was a real and substantial, or a genuine concern as to an accused's fitness to stand trial, and where counsel, who it may be assumed had much greater contact with the accused than anyone else, had drawn that matter to attention."
Decision 33As I have said, I am satisfied that the issue of the fitness of the accused has been raised in good faith. 34In light of the fact that two experts of great experience have carefully considered the test to be applied, and are unanimous in their opinion that the accused complies with that test, I accept that the accused does pass the test enunciated in R v Presser. There does not seem to me to be any basis upon which I should reject those opinions. In particular, there is no evidence from the solicitor for the accused, from either in the witness box or in the form of an affidavit, to the effect that he is unable to receive proper instructions from the accused, or that there is any other impediment to the accused engaging properly in the trial, or indeed to the effect that the solicitor has any lingering concerns about that process. 35Nor is there any other evidence that has been placed before me that would lead me to reject the opinion of the psychologist and the psychiatrist. 36Applying the test in R v Presser to all of the evidence placed before me in the fitness hearing, including of course the matters that I have received from the Bar table by agreement, I find that the accused is fit to stand trial. That would include a long trial, featuring a variety of detailed evidence, as one might expect on a count of murder. 37That decision is predicated on the provision of frequent breaks and a support person to the accused, as necessary, and as discussed in the reports of the two experts. 38In light of my finding, according to s 13 of the Act, the proceedings against the accused are to continue "in accordance with the appropriate criminal procedures". With the agreement of the parties, I propose to make an order to give effect to that statutory requirement. In light of the fact that I understand that there is an application for variation of bail conditions, I shall deal with that question separately. 39In short, my formal decision at the end of the enquiry into the fitness of the accused to stand trial is that I find that he is fit to stand trial.
Order 40The accused having been found fit to stand trial, I order that the proceedings be adjourned to the Arraignments List in the Supreme Court at 10am on Friday 2 November 2012.
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: 12 July 2013
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