R v Bober - [2008] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BOBER
[2008] SASC 162
Judgment of The Honourable Justice Gray
19 June 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - OTHER MATTERS
Application by defendant for a finding to be recorded, pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA), that she is mentally unfit to stand trial - defendant charged with attempted murder - Director of Public Prosecutions consented to the Court recording a finding that Ms Bober was mentally unfit to stand trial before holding the trial of the objective elements of the offence - psychiatric opinions stated that defendant was not fit to stand trial.
Held: investigation into defendant's fitness to stand trial dispensed with - finding recorded that defendant mentally unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269L, s 269MA, s 269MB and s 269WA, referred to.
R v Ridings (2006) 96 SASR 202, considered.

R v BOBER
[2008] SASC 162
Criminal
GRAY J

This is an application by the defendant, Sandra Kaye Bober, for a finding to be recorded, pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA), that she is mentally unfit to stand trial.
The defendant was charged with one count of attempted murder. The particulars of the charge were that on 15 March 2007 she attempted to murder Edward Bober, her husband.
Initially a question arose as to whether it was appropriate to examine the mental fitness of the defendant before or after holding a trial of the objective elements of the offence. However, the Court was advised that the Director of Public Prosecutions consented to the Court recording the finding that Ms Bober was mentally unfit to stand trial before holding the trial of the objective elements of the offence. On 30 April 2008 I dispensed with the investigation into Ms Bober’s fitness to stand trial.[1] I then ordered that the defendant was unfit to stand trial. I now publish my reasons for my order.[2]
[1] Pursuant to section 269MA(5)(a) of the Criminal Law Consolidation Act 1935 (SA).
[2] Pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA).
The defendant was committed for trial on 13 August 2007. A report was ordered by a judge of this Court, pursuant to section 269WA of the Criminal Law Consolidation Act, regarding the defendant’s fitness to instruct her lawyers. Andrew Czechowicz, a psychiatrist, provided a report on 29 August 2007.
Section 269H of the Criminal Law Consolidation Act provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Dr Czechowicz reported that the defendant had been transferred from the Adelaide Women’s Prison to James Nash House on 19 April 2007 as it was thought that she was in danger of doing harm to herself as she was very depressed and was not eating. He described her state on admission to James Nash House as “distressed, psychotic and unable to eat”. He outlined the many physical symptoms from which she was suffering. He observed that her presentation at James Nash House was consistent with a person suffering from major depression with psychotic features and generalised anxiety. He concluded that together with that diagnosis, she suffered from a post-traumatic stress disorder. He considered that she was not fit to stand trial. She had limited capacity to instruct counsel. Dr Czechowicz considered that it was highly likely that she would continue in this state for a sustained period.
On 7 September 2007, the Court directed that Dr Czechowicz and another psychiatrist, Craig Raeside, provide further reports as to whether the defendant was likely to become fit to stand trial within a 12 month period.
Dr Raeside provided a report dated 18 October 2007. He considered that there had been considerable improvement in the defendant’s overall mental state over recent months. However, Dr Raeside did not consider that the improvement was likely to be permanent or long standing. He anticipated that the defendant would rapidly decline upon discharge from James Nash House. Dr Raeside considered that the defendant was “probably fit to plead at present” but that “she would have great difficulty engaging with her lawyers discussing the actual charges and issues in relation to her defence”. He concluded that:
[W]hilst seeing her in a structured setting at James Nash House leads one to think that she is fit to plead, I think this is only theoretical and in practice or “in vivo” I think her state will deteriorate quickly and prove quite a problem in relation to court proceedings.
Dr Czechowicz further reported on 24 October 2007. He too had observed considerable improvement and felt reasonably confident that improvement would continue over the next six months. However, he could not be certain whether the defendant would be fit to stand trial in 12 months’ time. He suggested that the issue be revisited during 2008.
Dr Czechowicz provided a further report on 18 February 2008. At this time he concluded that the defendant was unfit to stand trial. Forcing the defendant into the trial process would, in his opinion, be likely to make her condition worse and would subject her to an unacceptable level of stress. Dr Czechowicz noted that in the previous six months the defendant had come no closer to reaching a state of being fit to stand trial.
Dr Raeside further reported on 28 February 2008 that the defendant remained unchanged from the time of his previous assessment. He considered that notwithstanding appropriate treatment and care within James Nash House, the defendant had not made any significant improvement. In Dr Raeside’s opinion, she remained unfit to stand trial and was likely to remain that way for at least another 12 months.
The question of a defendant’s mental fitness to stand trial can be determined at the discretion of the trial Judge before or after other issues, including the trial of the objective elements of the offence. Section 269L of the Criminal Law Consolidation Act provides:
If the court orders an investigation into a defendant's mental fitness to stand trial, the question of the defendant's mental fitness to stand trial may, at the discretion of the trial judge, be separately tried before any other issue that is to be tried or after a trial of the objective elements of the alleged offence.
Given the concession that the defendant was mentally unfit to stand trial, the prosecution and defence agreed that the Court should dispense with an investigation into the defendant’s mental fitness to stand trial. Section 269MA(5) of the Criminal Law Consolidation Act permits this course:
The court may, if the prosecution and the defence agree—
(a)dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and
(b) record a finding that the defendant is mentally unfit to stand trial.
On 30 April 2008, having regard to the concession of the Director and to the opinions of Drs Czechowicz and Raeside, I ordered that the investigation into the defendant’s fitness to stand trial be dispensed with, and I recorded my finding, pursuant to section 269MA(5)(b), that the defendant is mentally unfit to stand trial.
I indicated that I would, at a convenient time, proceed pursuant to section 269MB(1) of the Criminal Law Consolidation Act, to hear evidence and representations by the prosecution and the defence relevant to the question of whether a finding should be recorded that the objective elements of the offence are established.[3]
[3] R v Ridings (2006) 96 SASR 202.