R v FVT

[2012] NSWSC 1488

Supreme Court

New South Wales

Medium Neutral Citation:

R v FVT [2012] NSWSC 1488

Hearing dates:

3 December 2012

Decision date:

03 December 2012

Before:

Bellew J

Decision:

1.The accused is referred to the Mental Health Review Tribunal pursuant to the provisions of s14 of The Mental Health (Forensic Provisions) Act 1990;

2.The accused is ordered to be remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal;

3.The Registrar is directed to provide to the Mental Health Review Tribunal a copy of Exhibit A, together with a copy of the reasons for the decision.

Catchwords:

CRIMINAL LAW - fitness to stand trial

Legislation Cited:

Mental Health (Forensic Procedures) Act 1990

Cases Cited:

Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser [1958] VR 45

Category:

Sentence

Parties:

Regina - Crown

FVT - Defendant

Representation:

J Crespo - Crown

M C Ramage QC - Defendant
Director of Public Prosecutions NSW - Crown

Jeffreys Lawyers - Defendant

File Number(s):

2010/230612

Publication restriction:

Nil

Judgment - ex tempore

1. Before the court is an inquiry pursuant to the provisions of the Mental Health (Forensic Procedures) Act 1990 ("the Act") as to the fitness of the accused, to stand trial on a count of the murder of his former partner.

1. Tendered before the court today were two volumes of material prepared by the Director of Public Prosecutions, with the consent of the accused's legal representatives, together with a supplementary report of Dr Olav Nielssen dated 29 November, 2012. That material was marked Exhibit A.

1. I should note that but for the most recent report of Dr Nielssen which was tendered this morning, the entirety of what is now Exhibit A was provided to me in advance of today's hearing. I have therefore had the opportunity of reading such material and, in particular, reading the medical evidence which is contained within it.

1. That medical evidence firstly comprises two reports of Dr Nielssen, the first dated 31 July, 2012 and the most recent of 29 November, 2012, and a report of Dr Susan Pulman, neuro-psychologist, dated 29 August, 2011. The reports of Dr Pulman and Dr Nielssen were obtained by the accused's legal representatives.

1. The Crown qualified Dr Sharon Reutens, a clinical psychiatrist, who provided a report of 25 September, 2012, as well as Professor David Greenberg, a forensic psychiatrist, who prepared reports of 4 October, 2012, and 31 October, 2012. In addition, contained within the material is a report of a CT scan conducted of the accused's brain on 9 November, 2011.

1. The parties have approached the matter on the basis that there be no cross-examination of any of the medical practitioners who have provided reports. In the course of submissions this morning both the Crown, and Queen's Counsel for the accused, submitted to me that I should make orders (inter alia), referring the accused to the Mental Health Review Tribunal pursuant to section 14 of the Act.

1. I should record my appreciation for the manner in which both parties have approached the issue. Their approach has, amongst other things, saved a great deal of time.

1. Contained within Exhibit A is a Crown case statement. I do not propose, for present purposes, to recount the entirety of that statement. It forms part of the evidence which is before me and, I have had regard to it by way of background.

1. As Mr Ramage QC on behalf of the accused has pointed out, none of this material has been tested in any way and in any event the issue which I must determine concerns the fitness of the accused to stand trial. For present purposes it need only be recorded that the Crown case is that on or about July 2010, the accused murdered his then defacto partner in the circumstances which are more fully set out in the Crown case statement.

1. Pursuant to s. 10 (2) of the Act, I must not conduct an inquiry into the question of the accused's fitness to be tried for an offence unless it appears that the question has been raised in good faith. In light of the history of the matter, which is more fully set out in the Crown's submissions, it appears that such determination may have been made by Latham J of this court when the matter was before her Honour prior to today. But should there be any doubt about that, I record the fact that I am satisfied that the question of the fitness of the accused to be tried has been raised in good faith and I base that determination upon the medical evidence which has been placed before me.

1. Pursuant to s. 6 of the Act, the issue of the accused's fitness is to be determined on the balance of probabilities. Having regard to the provisions of s. 12 (3) there's no onus vesting upon either particular party.

1. In terms of the principles to be taken into account when considering the issue of an accused's fitness, the seminal authority remains the decision of R v Presser (1958) VR 45. At paragraph 48 Smith J said, relevantly:

"(An accused) needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence, but he must, I think, have sufficient capacity to be able to detail what defence he will rely on and to make his defence and his version of the facts known to the Court and to his counsel, if any."

1. That passage has been subsequently approved on a number of occasions, including in Kesavarajah v The Queen (1994) 181 CLR 230 where, as the Crown has pointed out in its written submissions, an additional refinement was added, namely that in determining the factors referred to in Presser the Court should also have regard to the length of the trial, given that the accused's fitness may vary from time to time throughout the trial.

1. I have made reference to the medical evidence which is before me, to which I should refer in more detail.

1. In his first report of 31 July 2012, which followed two separate consultations with the accused on 12 July and 19 July 2012 respectively, Dr Nielssen recounted (amongst other things) the history provided to him, and the results of his mental state examination of the accused. He concluded by expressing the view that in terms of psychiatric diagnoses the accused was suffering from mild dementia, and an alcohol abuse disorder, as well as an adjustment order with depressed mood (which he said was in partial remission).

1. Significantly, from the point of view of the issue that I am required to decide, Dr Nielssen said:

"I believe (the accused) is unfit for trial. He was aware of the main charge, indicated how he intended to respond to that charge, and demonstrated a reasonable understanding of the procedure followed in an adversarial trial. However, he was assessed to have significant impairment in his attention, concentration, and short-term memory that would be likely to prevent him from following aspects of the trial, properly considering and remembering legal advice, and from being able to provide coherent instructions. His condition is permanent, and likely to follow a deteriorating course over time, and he is unlikely to become fit for trial in the next 12 months."

1. This particular passage from Dr Nielssen's report reflects a consideration of some, albeit not all, of the criteria set out in the Presser to which I referred earlier.

1. The second report obtained on behalf of the accused was that of Dr Susan Pulman, clinical and forensic neuropsychologist. There were a total of three separate consultations which led to the report of Dr Pulman. The accused was initially interviewed by Dr Pulman, and was then seen by Ms Amanda White, a forensic psychologist, on two subsequent occasions. These later examinations were for the purposes of completing what was described by Dr Pulman as "test administration".

1. Dr Pulman concluded, amongst other things, that the results of the neuropsychological assessment revealed several inconsistencies and variable performances on the part of the accused. She concluded:

"The results of current neuropsychological assessment are, on their own, difficult to interpret, however, the findings from tests of effort and motivation are consistent with suboptimal effort, and suggest that the accused was not performing to the best of his abilities. The results are, therefore, of questionable validity."

1. I have already made note of the fact that tendered to the Court this morning, and which now forms part of Exhibit A, is a supplementary report of Dr Nielssen. That report followed a further examination of the accused by Dr Nielssen on 22 November 2012. I need only note the terms of the second last paragraph of that report as follows:

"I confirm the opinion that the accused is permanently unfit for trial on the basis that his intellectual impairment is irreversible, and would prevent him from following aspects of the trial, properly considering and remembering legal advice, and from being able to provide coherent instructions."

1. Once again that part of Dr Nielssen's report makes it clear that in expressing his opinion he had specific reference to some of the criteria set out in Presser.

1. The Crown qualified Dr Sharon Reutens, consultant psychologist, to examine the accused and provide a report. Dr Reutens interviewed the accused on 30 August 2012, and provided a report of 25 September 2012. Dr Reutens concluded that the accused suffered from dementia due to long-term hazardous alcohol use, along with cerebrovascular disease, and possibly Alzheimer's disease. Dr Reutens did not, it seems, expressly address the Presser criteria, nor did she express a definitive view as to the fitness of the accused for trial.

1. However, on 1 September and 16 September the accused was examined by Professor David Greenberg at the request of the Crown. Professor Greenberg provided a report of 4 October 2012. He came to the view that the accused suffered from, amongst other things, an alcohol dependence disorder, a cannabis abuse disorder, a chronic adjustment disorder with depressed mood, and an early dementia disorder.

1. Having made various references to these diagnoses, Professor Greenberg specifically recorded the fact that he had assessed the accused with regard to the criteria set out in Presser. He concluded, amongst other things, as follows:

"I am of the opinion that he can likely give his version of the facts. Despite his uncooperative behaviour, guardedness and possible malingering of loss of memory, I have concerns with The accused's ability to instruct his legal counsel because of his chronic depressive symptoms and likely cognitive deficits. I am of the opinion that the accused would have difficulty giving evidence if required to do so, and understanding the substantial effect of the evidence because of his likely irritability, memory and cognitive impairment, and level of depression. I, therefore, am of the view that on balance he is likely unfit to plead and stand trial, but this determination is best left to the trier of fact."

1. Following the receipt of this report the Crown wrote to Professor Greenberg and asked for his opinion as to whether or not a modification of ordinary court procedures and practices might ameliorate some of the difficulties of which he had spoken. In particular the Crown, in its letter of instruction of 9 October 2012, raised the question of whether or not a modification of court procedures might result in a finding that the accused was fit to stand trial. The Crown asked that any steps thought to be necessary and appropriate to address this issue be set out by Professor Greenberg in a supplementary report.

1. In his supplementary report of 31 October 2012 Professor Greenberg came to the view that modifying court procedures, or court practices, would not ameliorate the accused's difficulties.

1. In addition to those reports to which I have referred, there is also a report of the results of a CT scan of the accused's brain which was carried out on 9 November 2011. It was reported by Dr Milner, a staff specialist at St Vincent's Hospital, that the scan showed moderate chronic small vessel changes with multiple lacuna infarcts predominantly in the basal ganglia, as well involving the right thalamus and pons. He reported that there was no evidence of recent ischaemia, but reported that the CT scan had established "mild generalised cerebral atrophy".

1. The results of that CT scan form part of the evidence before me. It has been referred to in some of the reports to which I have made reference, but it is not necessary for me to take that matter any further.

1. The report of Dr Nielssen is, as I have pointed out, expressed in unequivocal terms. The report of Professor Greenberg is perhaps less definitive in its conclusion, but as I have previously noted, the question I must determine, namely whether the accused is fit to be tried, is to be determined on the balance of probabilities.

1. Having regard to the opinions of Dr Nielssen and Professor Greenberg in particular, and bearing in mind that the matter has proceeded on the basis that their opinions are unchallenged, I am satisfied on the balance of probabilities the accused is unfit to stand trial. In those circumstances I make the following orders:

(1)   I refer the accused to the Mental Health Review Tribunal pursuant to the provisions of s14 of The Mental Health (Forensic Provisions) Act 1990;

(2)   I order that the accused be remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal;

(3)   I direct that the Registrar provide, to the Mental Health Review Tribunal, a copy of Exhibit A which is before me today, together with a copy these reasons.

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Decision last updated: 25 July 2014