R v Billy Krey - [2019] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation: R v Billy Krey [2019] NSWSC 762
Hearing dates: 20 – 22 May 2019
Decision date: 21 June 2019
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   The accused is unfit to be tried.
(2) In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the matter to the Mental Health Review Tribunal.
(3) In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or he is released to bail or in accordance with the law.
(4)   I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days:
(a)   A copy of my findings and judgment.
(b)   A copy of the orders which I have made.
(c)   A copy of the transcript of the proceedings.
(d)   A copy of the exhibits in the proceedings.

Catchwords: CRIMINAL LAW – fitness to stand trial – Presser test – accused charged with murder – intellectual disability – verbal land memory functions impaired – conflict between experts as to fitness – whether accused able to follow trial - whether able to give instructions – where prosecutor accepts open to find accused unfit – foetal alcohol syndrome – abuse and neglect – impact on neurological development – where accused has language skills of 7 year old – inconsistency in test results – whether accused fit to stand trial – he isn’t
Legislation Cited: Mental Health (Forensic Provisions) Act 1990) (NSW), ss 5 - 16 and 33
Cases Cited: Kesavarajah v The Queen [1994] 181 CLR 230
R v Bugmy [2009] NSWSC 1215
R v Bugmy [2010] NSWSC 1473
R v Presser [1958] VR 45
R v Qaumi & Ors (No 56) [2016] NSWSC 1130
R v Tarantello [2010] NSWSC 469
Robinson v R [2008] NSWCCA 64
Category: Principal judgment
Parties: Regina
Billy Krey
Representation:
Counsel:
L Lungo (Regina)
G Scragg (Billy Krey)
Solicitors:
Office of the Director of Public Prosecutions (Regina)
Legal Aid New South Wales (Billy Krey)

File Number(s): 2017/215883

Judgment

Billy Krey is intellectually disabled. He is charged with murder. There is a question as to whether he is fit to be tried. He isn’t.
In deference to his mental (or, more correctly, his language skills) age, I will refer to the accused as Billy. I mean no disrespect in doing so. I am also going to use language as simple as I can in the hope that his lawyers can explain this judgment to their client.
Billy was exposed to extreme family violence when he was a little boy. When he was five years old, experts said he had a complex variety of conditions including a global developmental delay, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiance Disorder, a language delay and he exhibited disruptive and aggressive behaviour. A paediatrician said he had “huge issues”. At nine, the same paediatrician…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Billy Krey

Details

AGLC: R v Billy Krey [2019] NSWSC 762
Case: [2019] NSWSC 762
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of R v Billy Krey involved an individual accused of murder, who was facing a trial in an Australian court. The central issue was whether the accused, who suffered from intellectual disability, foetal alcohol syndrome and a history of abuse and neglect, was fit to stand trial. The court had to determine whether the accused could understand the nature of the proceedings, follow the trial, give instructions to his legal counsel, and comprehend the evidence and potential consequences. The prosecution conceded that the accused might be unfit to stand trial, but the defence argued for a comprehensive assessment.

The court had to decide the appropriate legal test to determine fitness to stand trial. The case hinged on the interpretation and application of the Presser test, which assesses whether the accused has the capacity to understand the proceedings, follow the trial, instruct counsel, and comprehend evidence and consequences. The court considered the conflicting expert evidence, particularly the inconsistency in the accused’s test results and the impact of his disabilities on his cognitive functions. The court also examined the accused’s language skills, which were at the level of a seven-year-old, and the effect of his disabilities on his neurological development.

After considering the evidence and arguments, the court concluded that the accused was not fit to stand trial. The inconsistencies in the expert opinions and the significant impairments in the accused’s cognitive abilities led the court to determine that he could not follow the trial or give instructions to his counsel. The court accepted that the accused's disabilities, compounded by his history of abuse and neglect, significantly affected his ability to understand and engage in the trial process. Therefore, the court ruled that the accused was unfit to stand trial.

The court ordered that the charges against the accused be stayed, and he be detained in a secure mental health facility until further order. This decision recognised the need for appropriate care and treatment for the accused, given his significant disabilities and the risk he posed to himself and others if not properly managed.

Orders