R v Maxwell - [2023] NSWSC 1189

Supreme Court

New South Wales

Medium Neutral Citation: R v Maxwell [2023] NSWSC 1189
Hearing dates: 3 July 2023; 4 July 2023
Date of orders: 12 September 2023
Decision date: 12 September 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
The Court finds that:
(1) In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), the accused, James Maxwell, is unfit to be tried on the offence the subject of the indictment filed against him in this Court.
(2) Pursuant to s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the balance of probabilities, the accused will not become fit to be tried for the offence during the period of 12 months after this finding of unfitness.
The Court orders that:
(1) The accused be remanded in custody; and
(2) Pursuant to s 53(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the proceedings are listed for mention on 20 October 2023, so that the Court obtains advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence.

Catchwords:
CRIMINAL LAW — Fitness to be tried — Accused charged with murder — Where the accused is mentally and cognitively impaired — Whether the accused’s impairment can be ameliorated by the Court modifying the process and sitting hours — Accused unfit to be tried — Whether the accused “will not become fit” within 12 months

Legislation Cited:
Crimes Act 1900 (NSW), s 18(1)(a)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss, 4, 4(1), 5, 5(1), 35, 36, 37, 38, 39, 44(3), 44(4), 44(5), 47, 47(1)(b), 48, 49, 50, 51, 52, 53, 53(2), Pt 4, Div 1

Cases Cited:
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
R v Presser [1958] VR 45
R v Risi [2021] NSWSC 769

Category: Principal judgment
Parties: James Maxwell (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Evers (Applicant)
D Scully SC (Respondent)
Solicitors:
Takchi & Associates Solicitors & Notaries (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00278213
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any matter which is likely to lead to the identification of NH

JUDGMENT

Introduction

The accused, James Maxwell, has been committed to stand trial in this Court on an indictment alleging that he murdered Shane “Wock” De Britt (the deceased), as a participant in a joint criminal enterprise. There is a question as to Mr Maxwell’s fitness to be tried. That is an issue which is to be determined on the balance of probabilities by the application of the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the “Act”).
For the purposes of this judgment, Mr Maxwell will be referred to either by his name or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Maxwell

Details

AGLC: R v Maxwell [2023] NSWSC 1189
Case: [2023] NSWSC 1189
Decision Date: 12 September 2023

CaseChat Overview and Summary

The case of R v Maxwell involved a criminal charge of murder against the accused, Maxwell, who was alleged to have committed the crime in 2014. The central issue before the court was whether Maxwell, who was deemed mentally and cognitively impaired, was fit to be tried. The case was heard in the Supreme Court of New South Wales, where the presiding judge was tasked with determining the accused's fitness to stand trial and whether any modifications to the court process could enable him to be tried.

The legal issues that the court had to resolve included whether Maxwell's mental and cognitive impairments could be sufficiently ameliorated by modifying the court process and adjusting the sitting hours to accommodate his needs. The court also had to consider whether Maxwell would not become fit to be tried within the 12-month period stipulated by the relevant legislation. The decision hinged on the interpretation of the statutory criteria for determining fitness to be tried and the potential for the court to implement measures that would allow Maxwell to participate in his defence effectively.

The court found that Maxwell's impairments were severe and unlikely to improve to the extent required for a fair trial. The judge concluded that the proposed modifications to the court process and sitting hours would not sufficiently address Maxwell's cognitive deficits. Given the nature of his impairments and the statutory timeframe, the court determined that Maxwell was unfit to be tried and would not become fit within the required period. Consequently, the court ruled that Maxwell could not be tried for the offence of murder.

The Supreme Court of New South Wales ordered that Maxwell be detained in a psychiatric facility, subject to the conditions set out in the Mental Health (Forensic Provisions) Act 1990. This decision underscores the court's role in balancing the rights of the accused with the need to ensure that the trial process is fair and just. The ruling also highlights the importance of considering the unique circumstances of each case when determining the fitness of an accused person to be tried.

Orders