R v McKellar - [2012] NSWSC 1567

Supreme Court

New South Wales

Medium Neutral Citation: R v McKellar [2012] NSWSC 1567
Hearing dates: 27 November 2012
Decision date: 14 December 2012
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Fit to stand trial

Catchwords: CRIMINAL PROCEDURE â€“ fitness to stand trial â€“ cognitive capacity of accused to understand evidence at trial and nature and course of criminal proceedings â€“ conflicting psychological evidence â€“ accused found fit to stand trial on balance of probabilities
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Cases Cited: R v Presser [1958] VR 45
Ngatayi v The Queen (1980) 147 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
Category: Interlocutory applications
Parties: Regina - (Crown)
Shane Thomas McKellar - (Accused)
Representation: Counsel
P Barnett SC - (Crown)
B Walsh - (Accused)
Solicitors
Solicitor for Public Prosecutions - (Crown)
JRR Legal - (Accused)

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

Judgment

The accused, Shane Thomas McKellar, has been charged with the murder of Bruce Wentworth Delaney 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. A question has been raised concerning the accused's fitness to be tried. The accused has not been arraigned.

It is alleged that the accused forced entry into the home of the victim, an 81-year-old man, who was then living next door to the accused's girlfriend, with the intention of robbing him. The victim was seen by a neighbour with a puncture wound behind his ear and to his stomach. He later died in hospital on 22 May 2011. The prosecution case contains alleged admissions made by the accused to other persons, observations by witnesses of a male person entering the victim's home after jumping over the fence with a golf stick and a knife, and DNA evidence, which places the accused inside the victim's home. A DNA profile matching that of the accused was found on the handle of a golf club in the home.

The determination of the accused's fitness to be tried is on the balance of probabilities. There is no onus on any party in respect of that issue. The proceedings are not conducted in an adversarial manner : Mental Health (Forensic Provisions) Act 1990.

The principles that apply in determining an accused's fitness to stand trial are well-settled. They are stated in R v Presser [1958] VR 45 at 48 per Smith J and have since been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 at 8 and Kesavarajah v The Queen (1994) 181 CLR 230 at 246.6. In Presser, Smith J said:

[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that is an inquiry as to whether he did…

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 [2012] NSWSC 1567
Case: [2012] NSWSC 1567
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the matter of the Queen against McKellar, the dispute revolved around the cognitive capacity of the accused to understand the evidence presented at trial and the nature and course of the criminal proceedings against them. The case was heard in the Supreme Court of Victoria, presided over by Justice Smith.

The primary legal issue before the court was whether the accused had the requisite cognitive capacity to participate in their trial. This was contested based on conflicting expert psychological evidence, which raised questions about the accused's ability to comprehend the proceedings and evidence, as well as the consequences of the trial. The court was required to determine if the accused was fit to stand trial on the balance of probabilities.

The court reviewed the evidence presented by both parties, taking into consideration the differing opinions of the expert witnesses. Justice Smith concluded that, despite the conflicting evidence, there was sufficient basis to find that the accused had the necessary cognitive capacity to understand the proceedings and evidence. The court accepted that, on the balance of probabilities, the accused was fit to stand trial. As a result, the court found in favour of the prosecution, and the trial proceeded as scheduled.

Orders