R v Briar

[2024] NSWDC 590

District Court

New South Wales

Medium Neutral Citation:

R v Briar [2024] NSWDC 590

Hearing dates:

15 October 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

The defendant is unfit to be tried on the present indictment and will not become fit within 12 months.

Direct that the registrar of District Court Broken Hill request the advice of the Director of Public Prosecutions as to whether they will proceed with a special hearing

Catchwords:

MENTAL HEALTH — Criminal proceedings — Fitness to be tried — Person unfit to be tried — Person will not become fit within 12 months

Legislation Cited:

Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230

Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1

R v Presser [1958] VR 45

Category:

Sentence

Parties:

Kevin Douglas Briar (the defendant)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
T Russell solicitor for Aboriginal Legal Service (NSW/ACT) (for the offender)
M Scott solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/63803

JUDGMENT – Ex tempore revised

Introduction

1. Three serious criminal charges and an alternate have been brought against Kevin Briar. They are said to have occurred at Wilcannia on 24 and 25 February 2023. They are set out in the indictment, part of Exhibit 1, Tab 1.

2. Count 1, involves an allegation of a home invasion resulting in actual bodily harm being occasioned. Count 2 is an alternative to Count 1 of assault occasioning actual bodily harm. Count 3 is a choking allegation.

3. It is not in dispute that the accused, or defendant, Kevin Briar has a cognitive impairment and intellectual disability and other conditions that impact on his intellectual capacity.

4. His personal and medical history is carefully set out in a Justice Health Report of Ms Lanyard, a clinical nurse consultant. Doctor Martin whose report is also before the Court summarises Briar’s condition succinctly, at par 14.

“Mr Briar clearly has very significant psychosocial problems manifesting with significant cognitive impairment, likely multifactorial in origin, dating back to brain damage suffered in utero [foetal alcohol spectrum disorder] and a history of problematic and heavy alcohol and drug use. He has historically been dependent on alcohol and experienced withdrawal seizures. He has significant other medical issues ...”

5. The issue of Kevin Briar’s fitness to enter pleas to the counts on the indictment were raised in good faith: Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 42(3).

The Act

6. The Mental Health and Cognitive Impairment Forensic Provisions Act (‘the Act’) applies to these proceedings. I must determine whether Mr Kevin Briar is fit to stand trial: s 40.

7. The alleged offences are sufficiently serious that if found proved a court would not find it inappropriate to inflict punishment: s 42(4).

The fitness hearing

8. The procedure for a fitness hearing is set out in the Act. The question of the defendant’s unfitness to be tried for an offence is to be determined by the judge alone: s 44(1).

9. Mr Kevin Briar is represented by an Australian Legal Practitioner, Mr Russell, of the Aboriginal Legal Service.

10. Ms Scott, Solicitor for the Director of Public Prosecutions, appears for that office.

11. The inquiry that I am undertaking is not to be conducted in an adversarial manner: s 44(3).

12. The onus of proof regarding the question of a defendant’s unfitness to be tried for an offence does not rest on any particular party to the proceedings: s 38.

13. The fitness test is set out in s 36 of the Act:

“(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.”

14. The test does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence. These provisions in effect mirror the common law position, previously referred to as the ‘Presser test’: R v Presser [1958] VR 45.

15. In determining whether the defendant is unfit to be tried for an offence I must also consider:

“(a) Whether the trial process can be modified, or assistant provide to facilitate the defendant’s understanding and effective participation in the trial,

(b) The likely length and complexity of the trial, [and]

(c) Whether the defendant is represented by an Australian Legal Practitioner or can obtain representation by an Australian Legal Practitioner”: s 44.

16. These matters mirror what fell from the High Court in Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 and Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230.

17. Any determination I make must include the principles of law applied and the findings of fact on which I rely: s 44.

18. I have been assisted by the reports of Dr McSwiggan, a neuropsychologist, and Dr Martin, a forensic psychiatrist. There is no issue that both are experts are well respected in their fields, with training and experience in their relevant fields.

19. I have also been assisted by written submissions from both counsel. There is, so far as counsel are concerned, no significant issue. Both take the view, which is shared by the two forensic psychiatrists, that Mr Kevin Briar is unfit to be tried. And that given the nature of his cognitive impairments, he will not become fit within 12 months.

20. Dr McSwiggan, Exhibit A, Tab 3, concluded having regard to the criteria in s 36 and 44(5) of the Act that Mr Kevin Briar is not only unfit but there is “no way” the situation would improve.

21. Dr McSwiggan notes at par 66 of her report:

“He was unable to explain the terms guilty or not guilty without using the words (“guilty of the charges, that’s it, I don’t know”) despite probing. He was not able to adequately describe the role of any persons in the court including a judge, prosecutor, jury or his lawyer. He was not aware of the evidence until it was described to him. He could not provide his own account or examples of other types of evidence or the substantial impact of the evidence in his matter.”

22. She notes at par 68 of her report:

“In response to questioning Mr Briar failed to demonstrate he had knowledge [of] trials or the[ir] purpose. After providing education on a plea of not guilty and a trial being an enquiry where he would defend some or all of the charges, Mr Briar then said he would “defend it” (appearing to parrot my words). His defence was illogical timewise, he failed to account for the substantial impact of the evidence, that was inconsistent (direct contrast) with a different version offered moments earlier.”

23. Dr Martin reached similar conclusions at par 15:

“Regarding the salient medico-legal issues of fitness, given the extremely impaired communication and the available information demonstrating significant cognitive impairment, in my view, it is highly likely that the court will find him unfit to plead and stand trial. In my view, this is not a situation amenable to treatment or time, and he will remain significantly cognitively impaired. In my view, no supports or allowances made by the court will overcome the barriers to fitness.”

24. He then summarises conclusions similar to those made by Dr McSwiggan.

Determination

25. I am obliged to make my own determination as to whether Mr Kevin Briar is fit for trial.

26. I note the tests are directed to the minimum requirements for a fair trial, so long as the accused can understand and follow proceedings in each of its facets, can give appropriate instructions and present a proffered defence to the charge, he is to be regarded as fit to be tried.

27. The test in s 36 of the Act is directed to the minimum requirements for a fair trial so long as an accused can understand and follow the proceedings to the same requirements. There is no issue that all of the experts who prepared reports are well respected with training experience in their relevant fields.

28. Having considered all the material before me I find as a fact, that Kevin Briar is not at present, able to make a defence or answer to the charge. He is not able to do this through his counsel by giving necessary instructions or by letting his lawyer know what his version of the facts is.

29. Should it become necessary, he does not have the capacity to tell the Court what his version of events are. I find that he does not have sufficient capacity to decide what his defence will be, to make a defence, or to properly enter a plea of guilty to the charge.

30. In those circumstances, I find that Mr Kevin Briar is not fit to stand trial. The expert evidence and the submissions of counsel are also as one on the issue of whether Mr Kevin Briar will become fit within 12 months: s 47.

31. Given the evidence before me that no other finding is possible. Here, given the nature of his cognitive impairment and intellectual disability I can comfortably conclude that Mr Kevin Briar’s position will not change.

32. Accordingly, for Mr Kevin Briar, there must be a special hearing in accordance with the Act and Division 3 of the Act, the special hearing provisions. Section 53 of the Act requires an advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken against the defendant in respect of these offences charged in the indictment. Accordingly, I must adjourn the proceedings.

33. I’ll adjourn the matter to the Broken Hill call-over on 6 November 2024. It is agreed Mr Briar’s bail is to continue.

Formal orders

1. I find Mr Kevin Briar is unfit to be tried on the present indictment.

2. I find that he will not become fit within 12 months.

3. I direct that the registrar of District Court Broken Hill request the advice of the Director of Public Prosecutions as to whether they will proceed with a special hearing.

34. I list the matter for call-over on 6 November 2025.

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Decision last updated: 13 December 2024