R v Delaney [2020] NSWDC 609

District Court New South Wales

Medium Neutral Citation: R v Delaney [2020] NSWDC 609 Hearing dates: 9 October 2020 Decision date: 09 October 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: David Delaney is fit to be tried. Catchwords: CRIME — Wound with intent – fitness to be tried MENTAL HEALTH — Criminal proceedings — Person fit to be tried Legislation Cited: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230 Presser [1958] (1958) VR 45 Ngatany v The Queen (1980) 147 CLR 1 Category: Procedural and other rulings Parties: David Delaney (the accused) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defender (for the accused) Mr R Taylor, Solicitor Advocate (for Director of Public Prosecutions)

Solicitors: Legal Aid NSW (for the accused) File Number(s): 2019/00380537

Judgment 1. On 30 November 2019 when at his son's unit at Daisy St Fairy Meadow, John Delaney received multiple stab wounds. He said the person responsible was his son, David Delaney, then aged 42. David Delaney also received a stab wound that day. 2. Soon after, while he was at St George Hospital, David Delaney was arrested and charged with a s 33 Crimes Act 1900 offence of wounding with intent to cause grievous bodily harm. He was refused bail and has been in custody at St George Hospital or Long Bay Hospital since his arrest. 3. The matter was committed to this court for trial. An Indictment was found and the matter listed for arraignment before me in June 2020. 4. On 5 April 2020, Dr Richard Furst, a Forensic Psychiatrist, provided an expert report indicating that in his opinion David Delaney was not fit to be tried. That report was soundly based on Mr Delaney's long standing psychiatric condition – treatment resistant schizophrenia and his presentation at the time he was seen by Dr Furst. Dr Furst also reviewed Mr Delaney's medical history and clinical notes going back to 2009. 5. Dr Furst concluded that at that time he lacked the capacity to make logical choices in relation to his plea options and also lacked the capacity to instruct and work with his lawyers, in advancing a defence of mental illness. Dr Furst was of the opinion that that "defence" was and is available to him: Presser [1958] (1958) VR 45; Kesavarajah v The Queen (1994) 181 CLR 230. Dr Furst suggested that optimal treatment might improve his chances of becoming fit for trial. 6. The issue of Mr Delaney's fitness to enter a plea to the indictment was raised on a bona fide basis. Section 10 Mental Health (Forensic Provisions) Act 1990 was engaged. I listed the matter for a fitness hearing but was told that, in the opinion of Dr Furst and Dr Eagle, he had since become fit. Today, I determined that a fitness hearing should be held. 7. The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone. Any determination by the Judge must include the principles of law applied by the Judge and the findings of fact on which the Judge relies: s11 Mental Health (Forensic Provisions) Act. 8. In these proceedings I have been assisted by the initial report of Dr Furst and a supplementary report of 27 July 2020 and a report from Dr Kerry Eagle of 26 June 2020. 9. There is no issue that all of the experts noted are well respected with training and experience in their relevant fields. 10. I have been assisted by Mr Taylor, who appears for the Director of Public Prosecutions, and Mr Fraser, Public Defender, for Mr Delaney. There is, so far as counsel are concerned, no significant issues. They take the view, which is shared by the two forensic psychiatrists, that at present Mr Delaney is fit to be tried. 11. The critical issues here involve the application of the tests which were first set out in Presser at 48 and adopted by the High Court in Ngatany v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen to the evidence. 12. Dr Furst having recently seen and reviewed Mr Delaney, notes an improvement in mood over recent months. He is now on therapeutic doses of Clozapine and "going a lot better." In Dr Furst's opinion he now understands his plea options, the role of his lawyers and the court. He has an understanding of the evidence, how it is to be presented and his options including a defence based on his mental illness. He was able to follow questions and although his affect was blunted, he was cooperative. Dr Furst is now of the opinion having had regard to the Presser criteria that Mr Delaney is fit to plead. 13. Dr Eagle, a Forensic Psychiatrist, held an AVL consultation with Mr Delaney on 25 June 2020. The restrictions presented by such a consultations did not limit her capacity to assess him. In her report she reaches the same conclusion as Dr Furst; finding that despite his demonstrated persistent bizarre delusions his mental condition had been improved by his medication regime and he now has insight into his condition. He was able to; demonstrate an understating of what it meant to be guilty and not guilty, display a basic understanding of the court and trial process and advise his lawyers of his version of events. 14. The matter having properly been put before me I must make my own determination as to whether Mr Delaney is fit for trial. 15. The tests in Presser and Kesavarajah are directed to the minimum requirements for a fair trial. So long as the accused can; understand and follow the proceedings in each of its facets, give appropriate instructions and present a proper defence to the charge, he or she is to be regarded as fit to be tried. 16. Given the material before me, I find that David Delaney is fit to be tried or the offence of causing grievous bodily harm with intent to cause grievous bodily harm. Accordingly, the proceedings brought against him for that offence are to continue in accordance with the appropriate criminal procedures. The Indictment can be presented and Mr Delaney can enter his plea to it.