R v White, Kaelym Haamiora

[2020] NSWDC 418

District Court

New South Wales

Medium Neutral Citation:

R v White, Kaelym Haamiora [2020] NSWDC 418

Hearing dates:

1 July 2020

Date of orders:

1 July 2020

Decision date:

01 July 2020

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

(1)   I find that the accused, Kaelym Haamiora White, is unfit to be tried for the offence of aggravated robbery.

(2) Pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the accused to the Mental Health Review Tribunal.

(3)   I direct that that a copy of the reports of Dr Dayalan and Professor Greenberg in Exhibit A be provided to the Tribunal.

(4) In accordance with s 14(b) of the Mental Health (Forensic Provisions) Act 1990, the matter is adjourned for mention to Friday, 6 November 2020 at 9.30am before the list judge.

(5)   By consent, fresh bail granted to the accused on the existing conditions with the following changes:

(a)   To reside at [address deleted for publication].

(b)   To report to police at Blacktown Police Station instead of Penrith Police Station.

(c)   An acceptable person without security to agree to forfeit the sum of $100 instead of $500 in the event of the accused failing to appear.

(d)   Remove the self-surety condition.

(6)   In the event that bail is not entered, issue s 77 order for the accused to appear via AVL on the next occasion.

Catchwords:

MENTAL HEALTH — Criminal proceedings — Fitness to be tried

CRIME — Bail — Variation application

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990, s 14

Cases Cited:

Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41

R v Presser [1958] VR 45; [1958] ALR 248

Category:

Procedural and other rulings

Parties:

Regina
Kaelym Haamiora White (Accused)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/92412

Publication restriction:

None

Judgment

1. Kaelym Haamiora White is charged with one count of aggravated robbery before this Court. A question was raised at committal about Mr White’s fitness to plead and he appeared via audio visual link whilst in custody on this determination of his fitness to be tried.

2. The Mental Health (Forensic Provisions) Act 1990 provides in ss 6 to 15 that unfitness to be tried is to be determined on the balance of probabilities by judge alone, that the accused is ordinarily to be legally represented, that the proceedings are to be conducted not in an adversarial manner, and that there is no onus resting on either party. If Mr White is unfit to be tried, the Court must refer him to the Mental Health Tribunal.

3. Whether a person is fit to be tried depends on whether the person, because of a mental defect, fails to meet certain minimum standards to enable a trial to be conducted without unfairness or injustice. Those standards were set out in the case of R v Presser [1958] VR 45; [1958] ALR 248 by Smith J and affirmed by the High Court in Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41. Those standards involve the accused, in order to be fit to be tried, having an ability to:

1. understand the nature of his charge;

2. plead to the charge and to exercise a right to challenge potential jurors;

3. understand the nature of the proceedings, namely that it is an inquiry to determine if the accused committed an offence;

4. follow the course of the proceedings;

5. understand the substantial effect of the evidence given in the proceedings; and

6. be able to make a defence to answer the charge.

4. The evidence in connection with Mr White’s fitness to be tried includes the Crown statement of facts, the substance of which is as follows.

5. On Sunday, 24 March 2019, just after 7pm, the accused entered the ANZ bank ATM area located in Haymarket. Within that area was the alleged victim, who stood facing the ATM holding approximately $700 in his possession comprising a black coloured leather wallet valued at $20 and containing $445, and $225 in various denominations.

6. The accused approached the victim, grabbed hold of the $225 in cash and the black leather wallet. The victim turned to face the accused, whereupon the accused struck the victim using a closed fist three to four times on the left-hand side of the victim’s head, causing the victim to fall backwards onto the ground and the money in his hands to fall to the ground. This was recorded on CCTV footage.

7. The accused picked up the cash and the wallet and ran south along George Street towards Hay Street. He was chased by the victim and several other witnesses. The accused removed some of the money from the wallet before throwing the wallet onto the ground. The victim observed this and stopped pursuing the accused. The victim collected his black wallet and returned to the ATM to complete his transaction.

8. The accused was stopped by witnesses a short time later. The police were contacted and arrived at the scene. The accused was searched by police who located $470 on his person and the accused was placed under arrest. He declined to be interviewed and was charged with having goods in his personal custody suspected of being stolen.

9. On 25 March 2019 the victim reported the incident and made a statement on 27 March 2019 in relation to the incident. The accused has now been charged with aggravated robbery using corporal violence, the subject of the matter before the Court.

10. There are two psychiatric reports in evidence, [1] one of Dr Dayalan and another of Professor David Greenberg, both psychiatrists. Both refer to previous schizophrenic and schizoaffective disorder diagnoses of Mr White in their reports, and each considers the Presser criteria, to which I have earlier referred.

    1. Exhibit A.

11. For different reasons, both of these psychiatric experts conclude that Mr White is unfit to be tried. Professor Greenberg determines this because of “concerns of Mr White’s capacity to appreciate the substantial effect of evidence given in court” whereas Dr Dayalan based it on a wider range of unsatisfied items in the Presser criteria, namely the accused’s poor understanding of the consequences of his plea, his superficial understanding of court proceedings, his inconsistent responses, his inability to follow the court proceedings and understand the substantial impact of the evidence presented against him, that he was an unreliable historian and that he manifested a thought disorder and would not have the ability to instruct counsel, present his version of the facts or decide on his defence.

12. Both the Crown and Mr White’s legal representative, Ms Sutherland, were agreed as to Mr White’s unfitness to plead.

13. In recent days, Mr White has manifested an understanding and desire to obtain bail. However, there is no evidence to the contrary of that established by the psychiatric reports and I accept the conclusions in them.

14. For the purpose of this determination, there seems to be little utility in making a determination in respect of the divergence between Dr Dayalan and Professor Greenberg as to whether any particular criterion in Presser is satisfied since all of them are necessary to be satisfied in order for Mr White to be fit to stand trial. At least as to the incapacity of Mr White to appreciate the substantial effect of the evidence given against him, the two psychiatric experts agree. And they agree that as a consequence, Mr White is unfit to be tried.

15. Accordingly, I find that the accused is unfit to be tried for the offence.

16. Mr White applies for bail. He was previously granted bail on conditions but was unable to enter into bail because the conditions were unsatisfied. In particular, first, the proposed address at which Mr White would reside and was a condition of the granting of bail is no longer the correct or appropriate address, and secondly, because there was no acceptable person willing to be surety for Mr White and forfeit $500, without security, if he failed to appear. There were other bail conditions in respect of reporting, curfew, a drug and alcohol restriction, self-curfew enforcement and a self-surety condition.

17. Ms Sutherland seeks to vary the bail conditions. Both the Crown and Ms Sutherland jointly seek, or Ms Sutherland seeks and the Crown agrees, for the bail conditions being varied in the following ways.

18. First, that the residence condition of Mr White be amended to remove the former address and insert the new address, and that consequently the reporting condition be amended to remove the reference to Penrith Police Station and replace it with a reference to Blacktown Police Station. Otherwise the reporting condition requiring daily reporting between the hours of 8am and 8pm remains, as does the curfew condition that Mr White is not to leave home between 9pm and 7am, the drug and alcohol restriction that he is not to drink alcohol or take drugs unless those drugs are prescribed by a doctor, and the curfew enforcement condition: that once per week police may attend to enforce the curfew and the accused must present to the front door within five minutes of the police attending.

19. Secondly, the two conditions relating to surety are to be varied. The former condition that the accused agree to forfeit $200 without security upon his failure to appear in accordance with the bail acknowledgment is to be removed as a condition, and the condition that an acceptable person agree to forfeit $500 without security upon Mr White’s failure to appear in court as required is reduced so that the amount subject to forfeiture is the sum of $100.

20. In view of the agreement of the parties, and the circumstance that the conditions are not substantially amended but are a necessary consequence of the change of address and place of reporting, and also to enable Mr White to meet the surety requirements, I accept the suggested amendments. I am persuaded that they are appropriate and I make orders to amend the bail conditions in the manner indicated.

21. Accordingly, the orders of the Court are:

1. I find that the accused, Kaelym Haamiora White, is unfit to be tried for the offence of aggravated robbery.

2. Pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the accused to the Mental Health Review Tribunal.

3. I direct that that a copy of the reports of Dr Dayalan and Professor Greenberg in Exhibit A be provided to the Tribunal.

4. In accordance with s 14(b) of the Mental Health (Forensic Provisions) Act 1990, the matter is adjourned for mention to Friday, 6 November 2020 at 9.30am before the list judge.

5. By consent, fresh bail granted to the accused on the existing conditions with the following changes:

1. To reside at [address deleted for publication].

2. To report to police at Blacktown Police Station instead of Penrith Police Station.

3. An acceptable person without security to agree to forfeit the sum of $100 instead of $500 in the event of the accused failing to appear.

4. Remove the self-surety condition.

6. In the event that bail is not entered, issue s 77 order for the accused to appear via AVL on the next occasion.

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Endnote

Decision last updated: 05 August 2020