R v Leaton Richard Kingsly SUTCLIFFE

[2008] NSWDC 327

CITATION:	R v Leaton Richard Kingsly SUTCLIFFE [2008] NSWDC 327
HEARING DATE(S):	15 December 2008
JUDGMENT DATE:	15 December 2008
JURISDICTION:	District Court
JUDGMENT OF:	Berman SC DCJ
DECISION:	Mr Sutcliffe is unfit to be tried. Mr Sutcliffe is referred to the Mental Health Review Tribunal. He is remanded in custody until the determination of the tribunal has been given effect to.
CATCHWORDS:	Criminal law - Fitness to be tried
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990
PARTIES:	The Crown Leaton Richard Kingsly Sutcliffe
FILE NUMBER(S):	DC 2008/11/0697
COUNSEL:	K Magnus (The Crown) N Steel (Accused)
SOLICITORS:	NSW DPP Legal Aid Commission

JUDGMENT

1 HIS HONOUR: I have before me today Leaton Richard Kingsly Sutcliffe. An issue has been raised as to his fitness to be tried in accordance with s 11 of the Mental Health Criminal Procedure Act. That issue has been tried by me alone. I note that this inquiry is not to be conducted in an adversarial manner and that neither the Crown nor Mr Sutcliffe has an onus of proof. The Crown tendered two documents without objection from Mr Steel, who appears for Mr Sutcliffe. The first was a report by Dr Westmore and the second a report by Dr Neilson. They are of like mind. They are both of the opinion that Mr Sutcliffe is unfit to be tried. Dr Westmore describes his conversations with Mr Sutcliffe. It is clear that Dr Westmore was unable to have a coherent conversation with Mr Sutcliffe. Dr Neilson agreed with the findings of Dr Westmore, noting that his severe communication disorder would render Mr Sutcliffe unable to provide reliable instructions or follow any proceedings in any adequate way. I will not repeat all of the conversations which Mr Westmore recorded from page 2 of his report but it is apparent that no meaningful communication was had between the doctor and Mr Sutcliffe. I will however refer to some aspects. For example when Dr Westmore asked Mr Sutcliffe whether what he did was wrong, he replied,

“Lord Carnarvon, Lord Carnarvon. He died of a mosquito bite, wonderful things, wonderful things.”

2 Very few of the responses recorded by Dr Westmore or Dr Neilson suggested that Mr Sutcliffe was capable of listening to a question asked of him and responding in a meaningful way. It is apparent, abundantly so, that Mr Sutcliffe’s bizarre answers which were unrelated to the questions asked of him would prevent him adequately instructing counsel appearing for him at trial. It is also clear that he would be unable to follow the proceedings in any meaningful way. The Presser tests requires before a person can be fit for trial a number of things, one of those is that the accused is able to give necessary instructions to his counsel by letting his counsel know what his version of the facts is and if necessary telling the court what it is. The accused also needs to be able to understand what is said against him so that he can make his defence or answer the charge.

3 I am satisfied without any shadow of a doubt that Mr Sutcliffe is unable to satisfy those two tests. He would be unable to participate in his trial in any meaningful way by understanding what was happening, instructing his counsel or responding to any of the evidence led against him. His inability to communicate is at the core of these problems. He would effectively not be present at the trial: physically he may be, but mentally he would not. In those circumstances I am satisfied that Mr Sutcliffe is unfit to be tried. I therefore make the following orders:

4 I refer Mr Sutcliffe to the Mental Health Review Tribunal. I remand him in custody until the determination of the tribunal has been given effect to.

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