R v Denison (a pseudonym) [2020] NSWDC 267

District Court New South Wales

Medium Neutral Citation: R v Denison (a pseudonym) [2020] NSWDC 267 Hearing dates: 3 and 4 February 2020; 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: The accused is fit for trial, notwithstanding the unanimous opinion of 3 psychiatrists. Catchwords: EVIDENCE — Expert opinions of three psychiatrists - Court not bound to accept. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW): ss 5, 6, 9, 10, 11, 12, 13, 13A Cases Cited: R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230; Taylor v R (1978) 22 ALR 599 Category: Procedural and other rulings Parties: Regina (Crown)

Denison (a pseudonym) (Accused) Representation: Mr Kotsis (Crown Prosecutor)

Ms Phelps (Counsel for the Accused) File Number(s): 2017/322040; 2019/140260 Publication restriction: Non publication order made of the name of the accused, the complainant and any other information which might identify either of them directly or indirectly

1. On 3 February 2020, Mr Denison (a pseudonym) appeared before the Court and was arraigned upon an indictment which contained seven counts. Five of those counts alleged that, on the dates particularised, Mr Denison assaulted his (now former) wife and thereby occasioned to her actual bodily harm. Two of the counts alleged that, on the dates particularised, he had sexual intercourse with his (now former) wife without her consent, knowing that she was not consenting. 2. Mr Denison was arraigned on that occasion for the purpose of a fitness hearing being conducted. Consequently, in that context, Mr Denison was not required to enter a plea to any of the seven counts on the indictment. 3. In anticipation of the fitness hearing which then followed, expert reports had been obtained from three psychiatrists: Dr Alexey Sidorov, Dr Abhishek Nagesh and Dr Jeremy O'Dea. The first two reports were obtained by the solicitors for the accused; the third report was obtained by the Crown. 4. In one significant respect, the three reports are consistent. That is, each of the expert witnesses has concluded that, at the time of the relevant examination, Mr Denison presented with a morbid delusional disorder, jealousy based - or words to similar effect ("the primary diagnosis"). 5. Dr Sidorov and Dr Nagesh expressed the further opinion that, by having regard to the well established criteria in R v Presser [1958] VR 45 and Kesavarajah v The Queen (1994) 181 CLR 230, Mr Denison was unfit to be tried. 6. Dr O'Dea, whilst agreeing in substance with the primary diagnosis, did not agree with the subsequent conclusion to which I have referred. Dr O'Dea was of the opinion that, notwithstanding the primary diagnosis and by having regard to the two authorities to which I have just referred, Mr Denison was fit to be tried. 7. The current application is subject to the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW). The principles attending upon an inquiry of this kind are uncontroversial and have been set out helpfully by the Crown in its preliminary submissions dated 3 February 2020. For my purposes today, it is not necessary to rehearse them for this ex tempore judgment. 8. The Court is placed in an unusual position insofar as those experts' reports are concerned. That perhaps is a consequence of these types of proceedings not being adversarial. 9. Each of the expert witnesses concluded that the belief by Mr Denison that his wife was having an affair was indicative of the existence of the primary diagnosis. 10. In this regard, it is instructive to turn to some of the oral evidence of Dr O'Dea, which was not inconsistent with the evidence of the other two experts. It is incapsulated at T37:13: "Q. Am I right in summarising the position as follows that you look at the conclusion that he has drawn", - ["He" being a reference to the accused] - "in this case the conclusion being she's" - [that is to say, the complainant] - "having an affair and then you look at the facts that he has used to draw that conclusion and if you're of the view that those facts shouldn't lead to that conclusion, then you come to this diagnosis... is that a simplified way? A. That's a reasonable way of saying it, yes we don't actually look at the conclusion so much as the evidence that the person uses to come to that conclusion and the inferences that they draw from that evidence. And of course morbid jealousy is one of those particular conditions which is not very common I might add - whereas jealousy is very common but morbid jealous to the point of paranoia is not very common but it is one of those ones that this particular argument and debate has gone on for centuries in psychiatry. Well look you know, maybe they are having an affair, but it's the evidence that the person uses as I've said and the inferences drawn from the evidence and the intensity they'd hold and the resistance to evidence to the contrary to modify their beliefs that are among the hallmarks of morbid jealousy." 1. That passage, as I have understood the evidence of the three witnesses, encapsulates the heart of their diagnostic approach. 2. Let me then turn to the "evidence" that the accused used to come to the ("delusional") conclusion that his wife might be having an affair. There were 12 matters to which Mr Denison had regard in drawing an inference that his wife was, or might be, having an affair with the local real estate agent. They are helpfully captured in the written submissions of his counsel: 1. That the real estate agent gave a good valuation for the home of the accused's father; 2. That the real estate agent had been at a club when the accused and his wife went to that club on the occasion of the Mrs Denison's birthday; 3. That, to the observation of the accused, the real estate agent looked "strangely" at his wife; 4. That on an occasion when Mr Denison came home, he found his wife bent over the toilet without her pants on and the window open. 5. Mr Denison had examined certain bank records after the sale of his father's house that there were unexplained financial transactions revealed from that examination. [I pause to observe that Mr Denison is the only person involved in this application who has ever looked at those records. Certainly, neither the Crown, nor Mr Denison's current legal advisers have taken the step of looking to see whether there was any factual basis for his conclusion in that regard.]. 6. That at the occasion when his wife was in the toilet without her pants on, he was of the view that her assumed lover may have been in the house; and when he (Mr Denison) went and checked the back fence, he found that there were shoe marks on the fence - and that he saw shadows in the backyard. 7. From time to time, before the real estate agent's arrival at the house, he, Mr Denison, had an odd sensation. 8. On an occasion, he saw a man whom he thought he recognised as the real estate agent in a motor vehicle outside the window. 9. On an occasion when his wife had had to go to hospital with a serious illness, he, Mr Denison, visited his wife and found her in bed plucking her eyebrows and telling him that he did not need to be there. 10. There were occasions when she would walk into the house seemingly out of breath. 11. There was an occasion when he thought he saw the real estate agent sitting in a car outside the house. 12. He had conducted some crude examination of his wife's body for the purpose of determining whether she had on some occasions recently engaged in sexual intercourse. 1. According to the three experts, the drawing of the inference by Mr Denison from those 12 matters that his wife might have been having an affair was so bizarre as to constitute a delusional jealousy diagnosis. 2. In Taylor v R (1978) A Crim R 599, the Full Federal Court (Connor, Franki, and Smithers JJ) was of the opinion that a tribunal of fact can reject unanimous medical opinion placed before it. (There are many other authorities to similar effect). 3. Their Honours cautioned, however, that the rejection should not be capricious. But it is beyond argument, on the authorities, that a tribunal of fact does have the capacity to reject unanimous medical opinion. 4. At p 608 of Taylor, there is a passage of particular utility from the judgment of Smithers J which I shall set out in full: "It is clear, therefore, that in a case such as the present the jury should understand that the medical opinions are central to the case for the accused, that they may be sufficient of themselves to prove as a fact what the state of mind of the accused was at the critical time, and that, where they are accepted as honest and competent and are unchallenged, then unless the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed, the jury should not reject or ignore those opinions.." 1. I wish to emphasise two aspects of that passage: "unless the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established" and "or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken". 2. For each of those reasons, I am not persuaded, and I do not accept, the unanimous opinion of the three psychiatrists that, at the relevant time (that is, at the time of their examination) the accused was suffering from the primary diagnosis. 3. Those 12 matters (with the possible exception of the 7th), when taken together, could rationally lead to an inference that his wife might be having an affair. In other words, looking at the evidence that he used to come to that conclusion, the conclusion seems to be a rational one. Therefore, I reject the conclusion of the three psychiatrists that the accused suffered from the primary diagnosis. 4. I therefore find that the accused is fit for trial. 5. Should I have come to another conclusion, for the reasons advanced by Dr O'Dea, I would (in the alternative) have found that he was fit for trial even if he were suffering from the primary diagnosis. 6. Some practical consequences follow from this. 7. As I said at the commencement of these reasons, Mr Denison was arraigned on an indictment which contained seven counts, each of which was referable to his (former) wife. In addition to those proceedings, there is a discrete set of proceedings in which the complainant is the accused's son, William (a pseudonym). Those proceedings involving that complainant are remitted to the Local Court for the case conferencing procedures to be pursued. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2020