R v Holt

[2009] NSWDC 147

Reported Decision: 9 DCLR (NSW) 87

District Court

CITATION:	R v Lawrence HOLT [2009] NSWDC 147
HEARING DATE(S):	17 June 2009 22 June 2009
JUDGMENT DATE:	23 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The accused is fit to be tried
CATCHWORDS:	Criminal law - Judgment - Fitness to be tried
CASES CITED:	R v Presser [1958] VR 45 R v Reis [2005] NSWSC 707 R v Robertson [1968] 1 WLR 1767 R v Mailes [2001] NSWCCA 155 R v John Frith (1790) 22 St Tr 307 R v Hatfield (1800) 27 St Tr 1281 Falconer v The Queen (1990) 171 CLR 30 R v Ayoub (1984) 10 A Crim R 313 Hawkins v The Queen (1994) 177 CLR 500 R v Drummond NSWCCA 27 May 1994
PARTIES:	The Crown Lawrence Holt
FILE NUMBER(S):	DC 09/11/0021
COUNSEL:	J Fliece - Accused
SOLICITORS:	NSWDPP Legal Aid Commission

JUDGMENT

1 In the early afternoon of 16 August 2008 the accused entered a music store in Pitt St. He began playing the drums and then a guitar. An employee, Matthew Dorahy asked him to leave. The accused did so. Later on that day Mr Dorahy left work. He hadn’t gone far when he was stabbed allegedly by the accused. CCTV footage from Sydney City Council shows a person, who the Crown says was the accused, hurriedly walking away from where Mr Dorahy was stabbed holding a walking stick in his right hand and a large stainless steel knife in his left hand. The accused was arrested a few days later. Incriminating items were found at his home. A photographic line up resulted in 4 witnesses identifying the accused but whether they identified him as the man in the music store earlier, or the man who stabbed Mr Dorahy is not made clear in the material placed before me. In any case it appears that the Crown case is quite a strong one.

2 The accused has now been charged. A question regarding his fitness to be tried has arisen and accordingly a hearing was held before me to determine whether he is fit to be tried. As required, the proceedings were conducted in a non-adversarial way. It is the position of the Crown that the accused is fit to be tried, but the proposition advanced by Mr Fliece who appears on behalf of the accused is to the contrary. There is no significance arising from the fact that it is the Crown who says the accused is fit and the accused’s lawyers say he is unfit. The positions could easily have been reversed. I am to decide whether the accused is fit to be tried on the balance of probabilities with neither party bearing the onus of proof.

3 The Crown relies on the opinion of Dr Allnutt who has examined the accused on two occasions; the most recent being on the morning of the day that he gave evidence before me. Mr Fliece relies on the opinion of Dr Nielssen who examined the accused some six months before the hearing before me. There is much that the two psychiatrists agree upon and the area where they differ involves not so much a psychiatric dispute as a legal one.

4 Dr Allnutt is of the opinion that the accused meets all the Presser tests (R v Presser [1958] VR 45).

5 In conversations with Dr Allnutt the accused correctly identified the charge which he faces, and the nature of the allegation being that he had assaulted a person with a knife. The accused told Dr Allnutt that he had not committed the offence because at the time of the alleged offence he was at home at Redfern. Accordingly the accused told Dr Allnutt that he wanted to plead not guilty because he “did not do it”.

6 The accused correctly understood the consequences of both guilty and not guilty verdicts and that a plea of not guilty would result in a hearing to determine whether he was “innocent or guilty”. If found innocent he would “get released” but if found guilty he would be placed in gaol.

7 The accused understood the role of lawyers, and of the judge, and of the jury and, after explanation, the right of challenge.

8 Importantly Dr Allnutt also asked him what he understood of the concept of not guilty by reason of mental illness. The accused told Dr Allnutt that this meant: “that you are not liable for the crime because of mental illness” and the consequences of such a finding might be that “they place you in to medical custody, a psychiatric hospital and you remain there until you are well enough to go to society”.

9 The evidence established that the accused understood the concept of not guilty by mental illness, and in fact Dr Allnutt described the accused’s understanding as “astute”.

10 Dr Allnutt explored the accused’s attitude to a defence of mental illness. I will quote the relevant passage from Dr Allnutt’s report:

“I put the question to him “if it was you who committed the offence and you were mentally ill at the time, would you consider a mental illness defence”, he stated “yeah because I was mentally ill, the doctors write reports testifying you are mentally ill and the Court then puts you in a mental hospital”; I said to him - “If the Court said you did it, the crime, would you plead not guilty by reason of mental illness”, he said “if I was mentally ill at the time I’d plead not guilty by reason of mental illness”; he added, however, that if was not mentally ill at the time he would plead guilty.”

11 Dr Allnutt’s conclusion therefore was that the accused was fit to stand trial. He acknowledged that the accused was mentally ill at the time Mr Dorahy was stabbed and that the accused was now denying that he had been experiencing mental illness symptoms at the time of the alleged offence. Dr Allnutt therefore acknowledged that it is possible that he may lack insight into the question as to whether he had the defence of mental illness available to him and therefore might have difficulty in instructing his lawyers concerning that defence but, said Dr Allnutt, that does not mean that he is unfit to be tried. Dr Allnutt says:

“… he does understand at least in an objective sense, what the term not guilty by reason of mental illness is and its consequences are, and chooses not to apply this to his own case; given his understanding of the legal process that he demonstrates, along with his denial of committing the offence it seems reasonable that he would choose to plead not guilty … he has capacity to decide what defence he will rely on – he was able to articulate his defence, put simply, he was not there at the time the alleged offence occurred, that it was not “him” on the CCTV and that the charges have been brought in error.”

12 Dr Nielssen agreed with much of what Dr Allnutt said. The essential point of difference however is that it is Dr Nielssen’s view that the accused is unfit to be tried because he is unable to instruct his lawyers about the availability of a defence of mental illness because his mental illness itself prevents him from understanding that he was mentally ill at the time of the alleged offence.

13 Dr Nielssen expressed himself in this manner in his evidence when asked for the reason that he thought the accused was unfit to be tried:

Well the sole basis was that his mental illness prevented him from raising the obvious defence to the charge which is that he was mentally ill at the time of the offence.

14 Dr Nielssen agrees that the accused meets all the Presser tests bar one, that is the ability to properly instruct his lawyers. It is Dr Nielssen’s opinion that because the accused does not have a complete understanding of the fact that he was mentally ill at the time of committing the offence he is not able to properly instruct his lawyers as to whether he should enter a plea of not guilty on the grounds of mental illness to the charge he faces. Dr Nielssen believes that, because of the strength of the Crown case, the mental illness defence is the obvious one, and the failure of the accused to accept that he was mentally ill prevents his response to the charge that he faces from being a rational one.

15 It should now be clear why the point of difference between the two psychiatrists is not really a psychiatric one but a legal one. Both psychiatrists agree as to the underlying circumstances that relate to the accused’s case. What they disagree with is whether those circumstances result in the accused being fit to stand trial.

16 Somewhat surprisingly perhaps, there is little guidance in the authorities as to whether an accused who is unable, because of mental illness, to appreciate that he or she was mentally ill at the time of an alleged offence is by that reason unfit to stand trial.

17 In R v Reis [2005] NSWSC 707 the accused was found not guilty on the grounds of mental illness after having earlier been found unfit to be tried. The determination of unfitness was made by a jury after a short hearing in which there was no dispute as to the appropriate finding. The trial judge’s summing up was made available to me. In it, Barr J told the jury:

"That brings me round to where we started. One of the essential things before a person can get a fair trial in New South Wales is that that person must be able to, by herself or through her solicitor or barrister, to set up every available defence. Here a very important one is that the very illness itself has created but which the very illness prevents her from getting. That is the substance of Dr Westmore's evidence and Dr Nielssen's evidence also".

First, the defence of mental illness is available and, second, for the same reason, Mrs Reis would be unable to present her defence based on mental illness and, therefore, for the same reason she is unfit. Both psychiatrists agree that she is unfit to be tried; there is no evidence to the contrary. The question for you, therefore, you might think is very easily answered, but it is not for me to tell you what your answer must be. You must consider it and you must give your answer having considered the evidence.

18 Mr Fliece relies on what Barr J said to the jury and says that the situation which faces me is similar. It is proper to note that because there was no contradictor, the trial Judge was not asked to consider the appropriateness and accuracy of the opinions expressed by the two psychiatrists in that case (one of whom is relied on by the accused in the present hearing) as to the relationship between the accused’s mental illness and the Presser tests. Nor was his Honour asked to determine any matter in dispute or deliver a judgment in which consideration was given to the appropriateness and accuracy of his Honour’s directions.

19 In R v Robertson [1968] 1 WLR 1767 the Court of Appeal examined the case of an accused where, the evidence suggested, he had a complete understanding of the legal proceedings in which he was involved but, though mental illness, suffered from delusions which may have effected his ability to “properly” conduct his defence. In other words, his delusions may have led him to act otherwise than in his best interests. The Court of Appeal held that the fitness trial of the accused was unsatisfactory because the jury may well have thought that the mere fact that the accused was not capable of doing things which were in his best interests was sufficient to enable them to find unfitness.

20 Robertson was referred to in R v Mailes [2001] NSWCCA 155 where, as he traced the history of the law of unfitness to plead in the United Kingdom, Wood CJ at CL noted that fitness was concerned with comprehension of proceedings and the ability to communicate with legal advisors rather than the ability to conduct a defence wisely or even rationally. The present case is similar to Robertson in that the accused correctly understands the legal process but dissimilar in that it is not merely the inability to conduct a wise defence which is said to make him unfit to be tried.

21 Neither Reis nor Roberston were of much assistance to me.

22 It is as well to remember that the concept underlying the various tests regarding fitness to be tried is one of fairness. Howard and Westmore, the authors of Crime and Mental Health Law in NSW (Butterworths 2005) say that: “The notion of fairness to the accused is the touchstone of the law in this area” and that “common humanity” requires that “no man should be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing”, see R v John Frith (1790) 22 St Tr 307 (a case involving a man who threw a stone at a coach containing King George III - coincidentally another attack on George III by a man suffering from delusions was part of the development of the verdict of not guilty on the grounds of insanity see R v Hatfield (1800) 27 St Tr 1281)

23 The Presser tests are therefore tests which determine whether it is fair to put an accused on his or her trial. Where there is a dispute as to how the Presser tests should be applied in a particular case it can therefore be helpful to recognise that the tests don’t exist for their own sake, but do have the idea of fairness to the accused lying behind them.

24 This brings me to one of the most important considerations regarding the present matter. Dr Nielssen, as I said earlier, is of the opinion that the accused is not fit to be tried because he cannot instruct his lawyers as to whether he should raise the plea of not guilty on the grounds of mental illness. Assuming for the moment that that is the case, and assuming even further that it is to the benefit of the accused to plead not guilty on the grounds of mental illness, would it be fair to put the accused to his trial in those circumstances? In this respect it must be remembered that the availability of a verdict of not guilty on the grounds of mental illness does not depend on that outcome being raised by the accused. Even if the accused does not wish to be found not guilty on the grounds of mental illness, a trial judge is obliged to leave that verdict to a jury in an appropriate case.

25 In Falconer v The Queen (1990) 171 CLR 30 (at 63) Dean and Dawson JJ said:

“we can see no reason why, if there is evidence which would support a verdict on the grounds of insanity, the prosecution should not be able to rely upon it in asking for a qualified acquittal as an alternative to conviction”

26 Also, in R v Ayoub (1984) 10 A Crim R 313, Street CJ, with whom Slattery J agreed said that:

“it is of course clear that if the state of the evidence justifies it a trial judge will put to the jury the defence of mental illness of his own motion… moreover irrespective of whether or not the accused raises or disclaims such a defence, a trial judge if he sees it as fairly open may well have a positive duty to put the defence himself.

27 See also Hawkins v The Queen (1994) 177 CLR 500 at 517.

28 So, in those circumstances it is difficult to see how the accused’s inability to instruct his lawyers on the issue of whether he was not guilty on the grounds of mental illness would result in a trial which was unfair to the accused because, whether or not the accused provided appropriate instructions, if the evidence justified it, that verdict would be available at trial.

29 Mr Fliece responded to this matter by suggesting that if the accused’s lawyers raised the mental illness defence over his objection, then they may have their instructions withdrawn. There are a number of things to say about that submission. Firstly neither psychiatrist was prepared to attempt to predict whether the accused would withdraw his instructions if his lawyers themselves raised the possibility of a verdict of not guilty on the grounds of mental illness. Secondly the accused has been present in court during evidence and argument concerning his fitness to be tried and there has been no suggestion that he has objected to his lawyers advancing a proposition that he was mentally ill at the time of the alleged offence. And thirdly, even if he did terminate his lawyers’ instructions, the prosecution would be bound to at least raise the issue of the not guilty by reason of mental illness verdict which the trial judge would, depending on the evidence, be obliged to leave to the jury.

30 So, in assessing the consequences of the accused’s inability to accept that he was mentally ill at the time of the offence, it is important to note that this inability does not preclude a verdict of not guilty by reason of mental illness.

31 Another matter of importance to note is this: Dr Nielssen describes the mental illness defence as being “obvious” and the assumption seems to have been made that the accused is acting irrationally in denying that he stabbed Mr Dorahy in the face of strong evidence against him.

32 Yet that assumption may not be accurate. Dr Nielssen has not, for example, seen the closed circuit television footage on which the Crown proposes to rely. But even if the Crown case is strong, does the fact that the accused denies committing the offence, and claims to have been elsewhere at the time it was committed, suggest that he is unable to properly instruct his lawyers? He would not be the first person to enter a plea of not guilty in the face of a strong Crown case. Nor would he be the first person to refuse to plead that he was not guilty on the grounds of mental illness because he would prefer a verdict of “not guilty”. The accused may well have the view that he would like to take his chances hoping perhaps that for whatever reason the case against him collapses.

33 Perhaps more importantly it should not be assumed that it is appropriate to take the strength of the Crown case into account when determining whether a person is fit to be tried on the basis that they wish to maintain their innocence. I share the reservations expressed by Dr Allnutt that it is appropriate for a psychiatrist, or even me as a judge conducting a fitness hearing, to say that a strong Crown case is a matter to be taken into account in determining whether an accused who wishes to raise an alibi, for example, can properly instruct his lawyers. Yet it seems that Dr Nielssen did take the strength of the Crown case into account in forming his opinion.

34 People plead not guilty in the face of strong Crown cases for various reasons, not only because they have limited insight into whether they were mentally ill or not at the time an offence was committed. Accused people may refuse to plead guilty out of belligerence, an unwillingness to face up to what he or she has done, or a hope that the Crown case against them will collapse. Why should I assume that the reason the accused denies his guilt in the face of a strong Crown case is because of his limited insight into whether he was mentally ill at the time the offence was committed? In any case, if it were a relevant matter then I would have expected more evidence to have been presented to me, perhaps the statements of the alleged victim, the CCTV footage, the statements of those who identify the accused as well as those who failed to identify the accused from photographs. The question of this accused’s fitness cannot really be determined according to how strong the case against him is, especially when evidence relevant to this issue was not put before me.

35 Even if the strength of the Crown case is a relevant factor, from conversations with Dr Allnutt, it is clear that the accused understands that a plea of guilty on the grounds of mental illness guarantees his incarceration, perhaps for “a few years”, whereas a plea of not guilty gives him a chance of being set free. Why should it be assumed that what the accused told the psychiatrists, that is that he did not stab Mr Dorahy, is necessarily the result of his mental illness? On the limited evidence presented to me it cannot be said that the accused is necessarily wrong – whether he is or not will need to be determined at either a special hearing or a criminal trial, but I do not consider it appropriate for me to make that determination at this stage.

36 The accused is able to tell his lawyers, and psychiatrists, about his version of events. Indeed as I have said earlier, the accused has claimed that at the time that the victim was stabbed he, the accused, was at home. Even if that version of events is rejected, and even if in truth the accused did in fact stab the victim, it does not follow from the fact that the accused was mentally ill at the time that he has available to him a defence of mental illness. A mentally ill person who commits an offence, is not, in every case, not guilty on the grounds of mental illness. As Dr Allnutt explained a person may commit an offence quite unrelated to their mental illness.

37 Despite the severity of the accused’s symptoms and his bizarre behaviour (assuming for the moment that the accused did in fact do what the Crown alleges) it does not follow that he would automatically be found not guilty on the grounds of mental illness. No psychiatrist that I am aware of, has examined the accused in order to determine whether, in that psychiatrist’s opinion, the accused has a defence of mental illness. It is not therefore a case where there is but one true verdict which the accused’s mental illness rules out.

38 Mr Fliece says that all that needs be shown is that the accused could perhaps be found not guilty on the grounds of mental illness, that is that it is an issue which the accused could validly raise, and that his mental illness prevents him raising it.

39 I do not agree. In my view the undisputed fact that the accused comprehends all relevant aspects of the legal processes involved in a criminal trial means that he is fit to be tried. In particular, the accused understands the availability of a defence of not guilty on the grounds of mental illness, and understands the consequences of such a verdict, and it has not been shown that his present unwillingness to embrace that defence results from his mental illness.

40 It is well accepted that a person who has no memory of relevant events is still fit to be tried for a crime arising from those events, see R v Drummond NSWCCA 27 May 1994, and it could not be the case that a person who refused to accept that he or she did the relevant acts because he or she had no memory of them would for that reason be unfit to be tried. In many respects this case is similar, something suggested by Dr Allnutt in his evidence.

41 As I have noted earlier, it is of assistance in applying the Presser tests in this case to remember that it is the idea of fairness to the accused which lies behind them. As well as being satisfied of the various matters not in dispute, I am satisfied on the balance of probabilities that he is able to make his defence and answer the charge. I am satisfied on the balance of probabilities that he is able to instruct his lawyers and to give them his version of the facts. It is not unfair to put the accused to trial.

42 I reach these conclusions for the reasons given above, which I summarise as follows:

• The accused has an astute understanding of the availability of the plea of not guilty on the grounds of mental illness and the consequences of such a finding.

• The defence of mental illness is available whether or not the accused raises it.

• I am unable to find (and it is certainly not “obvious”) that it is the accused’s mental illness which is causing the accused to offer the version of events which he puts forward.

• Even I was able to find that it is the accused’s mental illness which is causing the accused to offer the version of events which he puts forward, the case is not relevantly different from that where a person refuses to accept that he or she did the relevant acts because he or she had no memory of them.

43 For those reasons I find that the accused is fit to be tried.

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