R v Threlfo

[2019] NSWDC 276

District Court

New South Wales

Medium Neutral Citation:	R v Threlfo [2019] NSWDC 276
Hearing dates:	7 May 2019
Date of orders:	08 May 2019
Decision date:	08 May 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Pursuant to s 13 of the Mental Health (Forensic Provisions) Act I find the accused fit to be tried and the matter is to be fixed for trial
Catchwords:	Criminal - fitness to stand trial Presser criteria - where accused unrepresented at fitness hearing
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900
Cases Cited:	R v Presser [1958] VR 45 R v Kesavarajah (1994) 181 CLR 245
Category:	Procedural and other rulings
Parties:	Regina (Crown) Jamie Aarron Threlfo (the Accused)
Representation:	Solicitors: Mr D Hoitink for the Crown   Mr Threlfo in person
File Number(s):	2017/00214872
Publication restriction:	Nil

JUDGMENT – Fitness hearing

1. Jamie Aarron Threlfo, the accused, is charged with an offence of aggravated break, enter and commit serious indictable offence, larceny, pursuant to s 112(2), Crimes Act.

Procedural History

2. The accused appeared unrepresented for trial at the Gosford District Court on 11 March 2019. He was arraigned and pleaded not guilty. The indictment was in the following terms.

“On 23 May 2017 at Tuggerah in the State of New South Wales did break and enter the dwelling house of Vikash Singh at 71 Lake Road, Tuggerah and in the said dwelling house did commit a serious indictable offence therein namely larceny in circumstances of aggravation, namely he was armed with an offensive weapon.”

3. No jury was empanelled. The accused made an application to vacate the trial date. After hearing submissions Wilson J was of the view that an issue had been raised in relation to the accused’s fitness pursuant to s 5 of the Mental (Forensic Provisions) Act.

4. His Honour noted that the accused had consented to being examined by a Crown appointed psychiatrist who would provide a report to the court. The matter was stood over for mention on Tuesday 7 May 2019 at which time further orders were to be made in relation to the future conduct of the hearing.

5. Arrangements were subsequently made for the accused to be examined by Dr Adam Martin, forensic psychologist, qualified on behalf of the Crown.

6. On 7 May 2019 the matter was listed for mention before the Gosford District Court. The accused appeared unrepresented. The Crown advised the court that a report had been obtained from Dr Martin dated 24 April 2019. The matter was the stood down for a fitness hearing to proceed.

The Relevant Law

7. Section 11 of the Mental Health (Forensic Provisions) Act provides as follows:

“Determination of question of fitness

(1) The question of a person’s unfitness to be tried for an offence is to be determined by the Judge alone.

(2) Any determination by the Judge under this section must include the principles of law applied by the judge and the finding of facts on which the judge relied.”

8. Section 12 of the Mental Health (Forensic Provisions) Act provides as follows:

“Conduct of inquiry

(1) At an inquiry, the accused person is, unless the court otherwise allows, to be represented by an Australian legal practitioner.

(2) An inquiry is not to be conducted in an adversary manner.

(3) 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 to the proceedings in respect of the offence.”

9. In this fitness inquiry, I propose to allow the accused to appear unrepresented in circumstances where he has expressed a clear intention to represent himself at trial and further, that Dr Martin is of the opinion that the accused is fit to represent himself at trial (see exhibit A, par 26).

10. Section 13 of the Mental Health (Forensic Provisions) Act provides as follows:

“Person found fit to be tried

If, following an inquiry an accused person is found fit to be tried for an offence the proceeding brought against the person in respect to the offence are to recommence or continue in accordance with the appropriate criminal procedures.”

11. The question for the court is whether the accused, because of mental defect, fails to meet certain minimum standards beneath which the trial cannot be conducted without the possibility of unfairness and injustice to the accused (the Presser criteria).

12. The “Presser criteria” are derived from the R v Presser [1958] VR 45 as affirmed in R v Kesavarajah (1994) 181 CLR 245.

13. To be fit to be tried the accused needs:

“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 to challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense. Though he need not of course understand all the formalities. He needs to be able to understand the substantial effect of any evidence that may be given against him and he need to be able to make his defence or answer to the charge.

Where he has counsel he needs to be able to do this by letting his counsel know what his version of facts is and if necessary telling the court what it is. He need not have the mental capacity to make an able defence but he must I think have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of facts known to the court and to his counsel if any.”

The Evidence

14. The following material was tendered during the fitness hearing:

Exhibit A, a report of Dr Martin, forensic psychiatrist dated 24/04/19.

Exhibit B, a letter of instruction from the Office of the Director of Public Prosecutions to Dr Martin dated 05/04/19.

Exhibit C, a copy of the indictment.

Exhibit D, the Crown case statement.

The Crown Case Statement

15. The Crown case stated briefly is that on 23 May 2017 the accused went to the victim’s house in Tuggerah and got out of the vehicle holding a 60 centimetre rusted machete. After some short conversation with the victim it is alleged the accused kicked the front door twice at the premises forcing it open and entered the premises. Other persons also entered the premises.

16. The accused left the premises carrying a mobile phone. Three front windows of the house were broken and the victim’s car has a smashed wind screen.

17. Police subsequently conducted a search warrant at the accused’s house. During the search police located a wooden handled machete with a rusted blade.

18. The accused was arrested on 14 July 2017. He participated in a record of interview with police. He told police the following:

1. That he attended the victim’s residence for the purpose of purchasing methamphetamine.

2. It was a drug supply transaction, however when the accused returned to the car he realised that he’d been given crystal methamphetamine instead of normal methamphetamine.

3. As a result the accused approached the victim and asked for his money back and the victim refused.

4. The accused approached the front door, kicking it in and entering a lounge room. He picked up a bag full of silver coins, a mobile phone, a machete and a baseball bat behind the front door.

5. The accused admits that as he was leaving he smashed the front window of the house with the machete.

6. The accused returned to the vehicle and once he arrived home he threw the machete inside his house.

7. The accused discarded the mobile phone.

The Evidence in the Fitness Hearing

19. The medical evidence relied upon during the fitness hearing was Exhibit A the report of Dr Adam Martin dated 24 April 2019.

20. Dr Martin had conducted an interview with the accused on 9 April 2019 for approximately one hour. The accused provided the following information to Dr Martin in relation to his current circumstances.

“Mr Threlfo told me that he’s 35 years old. He said that he is currently unemployed, last working 3 years ago as a bricklayer and has been a bricklayer by trade since his early twenties having qualified through TAFE.

He said that he lives on the Central Coast with his two daughters aged 14 and 9 years respectively. He said that he was with a defacto partner for 15 years duration but this relationship broke up about 3 months ago and that she is now living in South Australia. He denied there being family and carer services involved with his children.”

21. The accused outlined a long history of drug and alcohol use commencing from the age of 11 years. He reported that he still occasionally uses cannabis and that he had not used cocaine for several years subject to one recent episode of use. He described himself as generally abstinent.

22. The accused denied any history of significant or serious medical problems. The accused denied being on any prescribed medication or being engaged in any psychological treatment. The accused denied any previous mental health problems or interventions. He also denied any history or psychiatric admissions or ever having been prescribed psychiatric medications. He said that he had never engaged in psychological counselling.

Mental State Examination including Fitness Assessment

23. Upon assessment Dr Martin was of the opinion that there was no psycho motor disturbance. Dr Martin further noted as follows.

“In speech he was talkative although was not pressured and was able to be interrupted, he was spontaneous and articulate, he was coherent. He described his mood as “good” and “happy” and his effect (observable emotional expression) was consistent. He was quite intense but he was not overly preoccupied or perplexed, he was not hostile or suspicious, he was not grandiose, there was no blunting of affect and he was able to smile appropriately at times. He was not overtly euphoric or elevated, he was no anxious.”

24. In relation to the issue of fitness, Dr Martin specifically stated as follows:

“In relation to the fitness issues, I found the following, while I did not have much corroborative legal information, he appeared aware of the nature of the charges against him. He had a thorough understanding of what it means to plead and stated his intention to plead not guilty. He stated that he has always previously pleaded guilty to offences saying that previously he had committed offences, however in this case he said that he was innocent of the charges and he intended to plead this case.

He had an awareness that a plea of guilty can potentially lead to a 25% reduction in sentence. He has an awareness of the general purpose of court by referring to ‘justice’ and understanding that court is a fact finding enquiry in relation to criminal allegations. He referred to both criminal and civil proceedings. He had an awareness of the nature of that trial but said that he has never previously been involved in the trial. He had an awareness that his proceedings were occurring in the District Court rather than the Local Court and knew that there would be a judge as opposed to a magistrate. He had an awareness of what it means to give an oath and was aware of the crime of perjury. He had an awareness of the roles of officers of the court and understood that a trial is adversarial. He referred to the judge as acting as a mediator and giving directions and ‘keeping running smooth’, he said the judge would give directions to a jury. He said the jury was a group of ‘eleven people’ and he understood that the jury consists of community members who decide on a person’s guilt or innocence. He was aware of the right to challenge a potentially biased juror in a situation of ‘conflict of interest’.

He appeared to understand the substantial effect of evidence and was able to talk in detail about potential evidence referring to DNA fingerprints and witnesses. In relation to giving a version of events, he said he had been alleged to have ‘stood over a certain club member’ and to attempt access to his house. He said that he had not been there. He said that others have alleged that he stated that he was going to behead people but challenged this saying that this was untrue and questioning while people had remained present for 40 minutes. He said that one of the detectives involved in this case had been at school with him and he questioned this as being a conflict of interest.

He said that the police had raided his house while he was there, questioning the timing because he said that they would have known that his children were still there and had not gone to school at the time and they were necessarily subjected to trauma. He said that there was a three minute interval in the recording of the police camera. He challenged the evidence of weaponry allegedly found in his house, saying there was no DNA on this and inferring the weaponry had been placed there. He essentially said that he had been subject to the planting of evidence and referred to obtaining records or information through the Government Information Public Access Scheme.

He said that there were unnecessary delays and obstacles in him obtaining government information which might be relevant to his defence. He stated that he thought the others wanted him to be found unfit so that he case could be ‘swept under the carpet’. I asked him why he elected not to use a lawyer and his response was that he wanted to take responsibility for his own defence. He said that in the worst case of being convicted that he would then use a lawyer to appeal. He said that he had a friend who was a QC but said that he thought that it was unfair to have his friend represent him”.

25. Ultimately, Dr Martin was of the opinion that the accused satisfied the Presser criteria. In relation to whether the accused was fit to represent himself at trial, Dr Martin further stated as follows:

“In relation to whether Mr Threlfo is fit to represent himself at trial he gave rational responses to his decision to self-represent and his reasons to self-represent did not appear to be informed by psychotic phenomena. Essentially, he said that he wanted to take responsibility for his own defence and that he did not want his case ‘manipulated’. He inferred that there was some form of corruption in his prosecution but I was unable to elicit frankly psychotic reasoning even while, in my personal opinion his decision to self-represent is probably not prudent.

On balance from a psychiatric perspective, I thought the Court would probably find him fit to represent himself at trial”.

26. In circumstances where Dr Martin was of the opinion that the accused was fit to stand trial, having considered the available evidence, I am also satisfied on balance of probabilities that the accused is fit to be tried.

27. Accordingly, my formal orders are as follows:

28. Pursuant to s 13 of the Mental Health (Forensic Provisions) Act I find the accused fit to be tried and the matter is to be fixed for trial.

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Decision last updated: 22 July 2019