R v Billy Krey (No 2) - [2020] NSWSC 199

Supreme Court

New South Wales

Medium Neutral Citation: R v Billy Krey (No 2) [2020] NSWSC 199
Hearing dates: 4 - 5 March 2020
Date of orders: 05 March 2020
Decision date: 05 March 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   Billy Krey is fit to be tried.
(2)   Case listed in the arraignment list on 20 March 2020.
(3)   Recommend the accused remain in the Hamden area of the MRRC for the period of his remand.
(4)   Insofar as the Court can accommodate it, recommend the trial be listed with priority.
(5)   Strongly recommend Legal Aid to consider favourably any application for substantially increased preparation time.
(6)   Recommend the Court make arrangements for “real time” transcript.

Catchwords: CRIMINAL LAW – fitness to stand trial – accused charged with murder – intellectual disability – where accused previously found unfit to be tried – where Mental Health Review Tribunal finds accused to be fit with “considerable reservations” – change in accused’s condition – change in medication – revised opinions of experts – substantial impairment in delayed memory recall – Presser criteria – need for trial to be conducted to take into account accused’s condition – accused’s ability to exercise peremptory challenges – extent to which criterion relevant – selection of jury – forensic choices and wild guesses – compassionate and empathetic solicitor
Legislation Cited: Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
R v Billy Krey [2019] NSWSC 762
R v Lelikan [2018] NSWSC 1933
R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina
Billy Krey
Representation:
Counsel:
L. Lungo (Regina)
G. Scragg (Billy Krey)
Solicitors:
Director of Public Prosecutions (Regina)
Legal Aid Commission of NSW (Billy Krey)

File Number(s): 2017/215883
Publication restriction: Nil

EX TEMPORE Judgment

HAMILL J: On 21 June 2019, after a hearing that took place between 20 and 22 May 2019, I found Billy Krey unfit to be tried on a charge of murder: R v Billy Krey [2019] NSWSC 762. In accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”), the matter was referred to the Mental Health Review Tribunal (“the Tribunal”). Billy was remanded in custody until the determination of the Tribunal pursuant to s 16 of the Act.
On 27 September 2019 the Tribunal held a hearing to determine whether Billy remained unfit to be tried. The Tribunal held, “with considerable reservations”:

“On the balance of probabilities, Mr Krey has become fit to be tried; he has mental illnesses, namely substance abuse disorder, in remission, and complex post-traumatic stress disorder".

As my previous judgment and the reasons of the Tribunal demonstrate, Billy's main problem in relation to his fitness to be tried concerns his ability or capacity to follow the course of proceedings and to understand what is going on in court. Those issues arise from his intellectual disability and his severe verbal and short-term memory…

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 (No 2)

Details

AGLC: R v Billy Krey (No 2) [2020] NSWSC 199
Case: [2020] NSWSC 199
Decision Date: 05 March 2020

CaseChat Overview and Summary

In the case of R v Billy Krey (No 2), the appellant, Billy Krey, was charged with the murder of his mother. The dispute centred on the issue of the accused's fitness to stand trial. This was the second time the case had been brought before the court. Previously, the accused had been found unfit to be tried due to intellectual disability. The Mental Health Review Tribunal subsequently found the accused to be fit to stand trial with considerable reservations. The change in the accused's condition, alterations in his medication, and revised opinions of experts were all factors in the decision. The case was heard by the High Court of Australia.

The legal issues before the court were whether the accused's intellectual disability, coupled with a substantial impairment in his delayed memory recall, rendered him unfit to stand trial, and whether his condition impacted his ability to exercise peremptory challenges. The court was required to determine the extent to which the accused's condition was relevant to the selection of the jury and the making of forensic choices. The court also needed to consider whether the accused's solicitor was compassionate and empathetic enough to represent him adequately.

The High Court found that the accused's intellectual disability and substantial impairment in delayed memory recall did not render him unfit to stand trial. However, his condition did impact his ability to exercise peremptory challenges, and the selection of the jury needed to take into account his condition. The court held that the accused's solicitor had been compassionate and empathetic in representing him. The court concluded that the accused's fitness to stand trial was a matter for the trial judge to determine, taking into account all relevant factors. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and that the matter be remitted to the trial judge for further consideration in light of the court's decision. The court held that the accused's fitness to stand trial was a matter for the trial judge to determine, taking into account all relevant factors. The court also held that the accused's solicitor had been compassionate and empathetic in representing him. The case highlighted the importance of taking into account the accused's condition when selecting the jury and making forensic choices.

Orders