R v Denison (a pseudonym)

[2020] NSWDC 267

District Court

New South Wales

Medium Neutral Citation:	R v Denison (a pseudonym) [2020] NSWDC 267
Hearing dates:	3 and 4 February 2020; 27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	The accused is fit for trial, notwithstanding the unanimous opinion of 3 psychiatrists.
Catchwords:	EVIDENCE — Expert opinions of three psychiatrists - Court not bound to accept.
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW): ss 5, 6, 9, 10, 11, 12, 13, 13A
Cases Cited:	R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230; Taylor v R (1978) 22 ALR 599
Category:	Procedural and other rulings
Parties:	Regina (Crown) Denison (a pseudonym) (Accused)
Representation:	Mr Kotsis (Crown Prosecutor) Ms Phelps (Counsel for the Accused)
File Number(s):	2017/322040; 2019/140260
Publication restriction:	Non publication order made of the name of the accused, the complainant and any other information which might identify either of them directly or indirectly

1. On 3 February 2020, Mr Denison (a pseudonym) appeared before the Court and was arraigned upon an indictment which contained seven counts.  Five of those counts alleged that, on the dates particularised, Mr Denison assaulted his (now former) wife and thereby occasioned to her actual bodily harm.  Two of the counts alleged that, on the dates particularised, he had sexual intercourse with his (now former) wife without her consent, knowing that she was not consenting.

2. Mr Denison was arraigned on that occasion for the purpose of a fitness hearing being conducted.  Consequently, in that context, Mr Denison was not required to enter a plea to any of the seven counts on the indictment. 

3. In anticipation of the fitness hearing which then followed, expert reports had been obtained from three psychiatrists: Dr Alexey Sidorov, Dr Abhishek Nagesh and Dr Jeremy O’Dea.  The first two reports were obtained by the solicitors for the accused; the third report was obtained by the Crown. 

4. In one significant respect, the three reports are consistent.  That is, each of the expert witnesses has concluded that, at the time of the relevant examination, Mr Denison presented with a morbid delusional disorder, jealousy based - or words to similar effect ("the primary diagnosis").  

5. Dr Sidorov and Dr Nagesh expressed the further opinion that, by having regard to the well established criteria in R v Presser [1958] VR 45 and Kesavarajah v The Queen (1994) 181 CLR 230, Mr Denison was unfit to be tried.

6. Dr O’Dea, whilst agreeing in substance with the primary diagnosis, did not agree with the subsequent conclusion to which I have referred.  Dr O’Dea was of the opinion that, notwithstanding the primary diagnosis and by having regard to the two authorities to which I have just referred, Mr Denison was fit to be tried.

7. The current application is subject to the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW). The principles attending upon an inquiry of this kind are uncontroversial and have been set out helpfully by the Crown in…