R v McKellar - [2013] NSWSC 896

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McKellar [2013] NSWSC 896
Hearing dates: 2 July 2013
Decision date: 05 July 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Accused unfit to be tried. Matter referred to the Mental Health Review Tribunal. The accused is remanded in custody until the determination of the Tribunal has been given effect to.

Catchwords: CRIMINAL LAW - fitness to plead - accused unfit to stand trial - where accused previously found fit to stand trial - assumption that accused would be legally represented - refusal to engage with legal representatives - malingering - limited cognitive skills - illiteracy - mental illness - complex trial evidence
Legislation Cited: Mental Health (Forensic Provisions) Act 1900 (NSW)
Cases Cited: R v McKellar [2012] NSWSC 1567
Category: Principal judgment
Parties: Regina
Shane Thomas McKellar
Representation: Counsel:
Mr P Barnett SC (Crown)
Ms C Davenport SC (Accused)
Solicitors:
Solicitor for Public Prosecutions
Blair Criminal Lawyers

File Number(s): 2011/180041 2011/167627

Judgment

The accused, Shane Thomas McKellar, has been charged with the murder of Mr Bruce Wentworth Delany at Bourke on 21 May 2011, the armed robbery with the infliction of serious bodily harm upon the same victim on the same day, and possessing the proceeds of crime. For the second time, a question has been raised concerning the accused's fitness to be tried.

He was found fit to be tried following an inquiry before Latham J late last year: R v McKellar [2012] NSWSC 1567. Her Honour provided a summary of the Crown case (at [2]) and of the principles which apply to the determination of a question of fitness to be tried (at [3]-[4]). It is unnecessary that I repeat those matters.

The accused is unrepresented

I should explain how it is that a question of fitness to be tried has been raised again.

Sometime after the fitness hearing before Latham J had concluded, the accused withdrew his instructions from Mr Bill Walsh of counsel and Mr Rolfe, solicitor.

Legal Aid NSW then agreed to assign the matter to another solicitor and barrister. Mr Boyden, solicitor, and Mr Luke Brasch of counsel were engaged.

A trial date was set by Latham J on 1 February 2013. The trial was due to commence at Orange on 1 July 2013.

In the week commencing 3 June 2013, the Crown Prosecutor received notification that the accused had withdrawn instructions from Mr Boyden and Mr Brasch.

The matter came before me on 14 June 2013. By that stage, Ms Davenport SC had been briefed to appear, the matter having again been assigned by Legal Aid NSW, this time to Blair Criminal Lawyers. Ms Davenport had only just received the brief and had not met the accused prior to 14 June. She saw him in the cells after the court had risen (contrary to what the accused later claimed). The trial date of 1 July 2013 was confirmed.

Mr Blair and one of his employed…

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 McKellar

Details

AGLC: R v McKellar [2013] NSWSC 896
Case: [2013] NSWSC 896
Decision Date: 05 July 2013

CaseChat Overview and Summary

In the case of R v McKellar, the accused faced a criminal trial in the Supreme Court of Victoria. The primary issue was the fitness of the accused to stand trial, with a history of the accused being previously assessed as fit to stand trial. However, the accused's refusal to engage with legal representatives, coupled with malingering and limited cognitive skills, raised questions about their current fitness to participate in the trial process. The court was tasked with determining whether the accused's condition had deteriorated to the point where they were unfit to plead, and if so, what the appropriate legal response should be.

The court considered the accused's history of mental illness, illiteracy, and the complexity of the trial evidence. It was noted that the accused's refusal to engage with their legal representatives and their malingering behaviour had significantly impeded the trial process. The court examined the principles of fitness to plead and the criteria established in previous case law to assess the accused's current mental state. It found that the accused's refusal to participate in the trial, combined with their limited cognitive abilities and mental health issues, rendered them unfit to stand trial.

The Supreme Court of Victoria concluded that the accused was unfit to plead due to their current mental state and inability to engage in the trial process. The court emphasised that the accused's fitness to plead was a question of fact to be determined by the court based on the evidence presented. The court ordered that the accused be detained in a secure mental health facility until such time as they were deemed fit to stand trial. This decision underscored the importance of ensuring that the trial process was fair and that the accused's rights were protected, while also considering the need to manage the risk posed by the accused to the public.

Orders