R v McGregor

[2019] NSWDC 878

District Court

New South Wales

Medium Neutral Citation:	R v McGregor [2019] NSWDC 878
Hearing dates:	2 September 2019
Date of orders:	02 September 2019
Decision date:	02 September 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is not fit to stand trial.
Catchwords:	Fitness to be tried, Assault w intent to cause GBH
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	R v Presser (1958) VR 45 Ngatayi v R (1980) 147 CLR 1 Kesavarajah v R (1994) 181 CLR 230
Category:	Procedural and other rulings
Parties:	Christopher Allan Mcgregor (Offender) Regina (Crown)
Representation:	Counsel: Mr Wong
File Number(s):	2018/00190139

Judgment

1. HIS HONOUR: Christopher Allan McGregor faces an indictment which reads: “On 12 June 2018 at Parramatta in the State of New South Wales did cause grievous bodily harm to Carol Townsend with intent to cause grievous bodily harm.”

2. The facts in short compass are as follows. The complainant is shown on CCTV footage obtained from the bus station to touch her lower back before she approached the accused and said words to the effect, “Don't ever push me again.” The accused interacted with the complainant, attempting to talk to her and speak to her in sign language. The accused is deaf and uses a combination of Auslan and signed English to communicate. The accused then stopped walking away, took six steps towards the complainant, drew his arm back with a raised elbow and punched the complainant with a closed fist to her head, striking the complainant on the left side of her face. The complainant toppled backwards and fell to the ground, striking her hip on the pavement and losing a shoe as she did so. A number of passers-by who witnessed the assault ran to assist the complainant, one of whom telephoned emergency services. Immediately after punching the complainant, the accused returned to his suitcase and walked away towards the train station. As he walked away, the accused looked over his shoulder at the complainant, who remained lying on the ground surrounded by persons who had stopped to come to her aid.

3. The assault is captured on CCTV footage from the bus station, which was obtained by the police in the course of their investigation.

4. Ambulance officers attended the scene and conveyed the complainant to Westmead Hospital. Medical examination and imaging revealed the complainant sustained:

(a) multiple fractures to her face, namely, an acute left orbital floor fracture, fracture to maxillary sinus walls and left zygomatic arch fracture;

(b) fractures hip, namely, a right comminuted pertrochanteric fracture of the neck of the femur.

5. It is fundamental to our system of law and justice that a person charged with a criminal offence be able to understand and, if necessary, meet and defend that charge. If a person is not fit enough to do so, they cannot have a trial according to law. To overcome the problem of ensuring justice is done both for the accused and any complainant, the Mental Health (Forensic Provisions) Act 1990 sets out procedures for first determining if a person is fit to be tried and then, if unfit, progressing the matter with the help of the Mental Health Review Tribunal by either waiting until they are fit or, if it is not likely they will become fit, by providing for a special hearing to be held.

6. At a special hearing evidence can be presented and tested and a judge can find the accused either not guilty of an offence charged; or not guilty on the ground of mental illness; or that, on the limited evidence available, the accused person committed the offence charged; or that, on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.

7. The issue of the accused’s fitness to enter a plea to the indictment has been raised on a bona fide basis by both the prosecution and the defence. Accordingly, this Court must, as soon as practicable, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence (s 10 Mental Health (Forensic Provisions) Act 1990). The question of a person’s unfitness to be tried for an offence is to be determined by the judge alone. Any determination by the judge under this section must include the principle of law applied by the judge and the findings of fact on which the judge relied (s 11 Mental Health (Forensic Provisions) Act 1990). This inquiry will not be conducted in an adversarial manner. The onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party.

8. The accused suffers with the diagnosis of schizophrenia and a likely substance use disorder.

CRITICAL ISSUES

9. The critical issue relating to an accused’s fitness to be tried were set out in R v Presser (1958) VR 45 at 48. They were adopted by the High Court in Ngatayi v R (1980) 147 CLR 1 and Kesavarajah v R (1994) 181 CLR 230. In order to receive a fair trial, the accused needs:

(1) To be able to understand what it is that he is charged with,

(2) to be able to plead guilty or not guilty to the charge,

(3) to exercise his right to challenge members of the jury panel,

(4) to understand generally the nature of the proceedings, namely, that it is an inquiry or trial as to whether he did what he is charged with,

(5) to be able to follow the course of the proceedings so as to understand what is going on in a general sense, though he need not, of course, understand the purpose of all the various court formalities,

(6) to be able to understand the substantial effect of the evidence to be given against him,

(7) to be able to make his defence or answer the charge,

(8) to be able to do this through his counsel and solicitor by giving any necessary instructions and letting his lawyers know what his version of the facts is and, if necessary, to be able to tell the Court what his version of the facts is (although he need not be conversant with court procedure or have the mental capacity to make an able defence),

(9) to have sufficient capacity to be able to decide what defence he will rely on and to make his defence and his version of facts known to the Court and to his lawyers.

THE EXPERT EVIDENCE

10. Dr Andrew Ellis, a forensic psychiatrist, provided a report dated 1 December 2018. Dr Ellis found that it was likely a court could find Mr McGregor unfit to be tried. The reason he gave for this was outlined in his report at pp 8 and 9.

(a) Mr McGregor knew the name of his charge but did not appreciate the seriousness of the charge,

(b) while he had capacity to learn legal terms, this was limited and fluctuates,

(c) his ongoing hallucinations and delusional beliefs will likely distract him from maintaining a consistent thought process,

(d) he finds it difficult to maintain focus on the flow of events in an interview and it is likely that the complexity of a court setting means it will be even more difficult for him to sustain attention on what is occurring,

(e) even with skilled interpreter services, it will be difficult for Mr McGregor to follow the course of events in court,

(f) Mr McGregor does not understand or have insight into his symptoms of mental illness and is not able to see how this might apply to the defence of mental illness and, as such, he is not aware of the pleas available to him.

11. Dr Jonathon Adams, a forensic psychiatrist, provided a report dated 19 July 2019. Dr Adams was of the view that Mr McGregor would most likely currently be found unfit to stand trial by the Court. In his opinion at pp 8 and 9, he found Mr McGregor unfit for the following reasons:

(a) He manifested a rudimentary understanding of his current charge and the incident for which the charge referred,

(b) he did not appear to have a satisfactory understanding of the criminal trial process or the roles of those involved,

(c) his level of thought disorder together with his ongoing auditory hallucinations would impact upon his capacity to provide his version of events and provide instructions to his legal representative,

(d) his persisting symptoms of schizophrenia would impact upon his capacity to follow legal proceedings in a general sense,

(e) his impaired concentration and impaired comprehension would also impact upon the abovementioned domains,

(f) his communication difficulties would play a role in his capacity to follow legal proceedings, however, these aspects could be overcome in the absence of his symptoms of schizophrenia,

(g) in his current mental state, Mr McGregor would not have the capacity to follow a potentially lengthy criminal trial.

12. I find, on the balance of probabilities, that Mr Christopher McGregor is not fit to stand trial. As a consequence, these proceedings cannot be continued and I must refer this matter to the Mental Health Review Tribunal for determination pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990, and I make that order.

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Decision last updated: 29 April 2020