District Court New South Wales Medium Neutral Citation: R v Munday [2021] NSWDC 374 Hearing dates: 3 August 2021 Decision date: 03 August 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Mr Munday is unfit to be tried. For orders see [35] Catchwords: CRIME — Intentionally cause fire and be reckless as to its spread – fitness to be tried MENTAL HEALTH — Criminal proceedings - fitness to be tried – procedure MENTAL HEALTH — Criminal proceedings - fitness to be tried – person unfit to be tried - person will not be fit to be tried in 12 months Legislation Cited: Crimes Act 1900 Evidence Act 1995 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 R v Presser [1958] VR 45 Category: Principal judgment Parties: Warren Fletcher Munday (the defendant) Director of Public Prosecutions Representation: Counsel: Ms S Hall (for the defendant) Mr G Porter, Crown Prosecutor Solicitors: Morrisons Law (for the defendant) File Number(s): 2020/00247037 Judgment Introduction 1. Warren Munday has lived in Hilltop Avenue Lake Heights his entire life. He is now 54. When he was younger his home backed on to a small farm run by his parents. That farm has since been subdivided into a number of home blocks and cul-de-sacs. Some blocks have houses on them, some are vacant. For many years fires have been lit on the vacant blocks. Some of those fires escaped threatening homes and property. So concerned were some residents that they set up motion detection cameras to catch images of the person responsible. 2. On 25 August 2020 Mr Munday was arrested and charged with a number of counts of intentionally causing a fire being reckless as to the spread of the fire to vegetation on public land or land belonging to another: s203E(1) Crimes Act 1900. Those charges have been committed to this court. A s203E offence carries a maximum penalty of 21 years imprisonment. An Indictment setting out 29 counts said to have been committed between 2018 and 2020 is before the court. 3. Mr Munday has an intellectual disability. That intellectual disability gives rises to a "cognitive disability:" s 5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act). That is; he has an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, resulting from developmental delay arising from his intellectual disability. 4. Testing from 2011 indicates his cognitive ability fell within the Extremely Low Range, his verbal skills were extremely low and his non-verbal skills were within the Extremely Low Range 5. Mr Munday's capacity to engage with and understand the charges has been obvious since he was first charged. The issue as to his fitness to be tried in this court was raised prior to when it was first listed: s 37 MHCIFP Act. While this court must determine whether an inquiry into his fitness should be conducted before the hearing of the proceedings in respect of the offences, so obvious was the answer that the fitness hearing was listed for today. I found that there should be an inquiry into whether or not Mr Munday is fit to be tried; s40 MHCIFP Act. The hearing was held immediately: s42(2) MHCIFP Act. Given the seriousness and number of the charges and the nature of Mr Munday's cognitive impairment it was appropriate that I did so: s42(4) MHCIFP Act. A fitness hearing 1. The procedures to be followed are set out in the MHCIFP Act. The question of a person's unfitness to be tried for an offence is to be determined by a judge alone. 2. Mr Munday is represented by an Australian legal practitioner; Ms Hall instructed, by Mr Ward, Solicitor, who in turn has assistance from Mr Munday's financial manager appointed by the NSW Civil and Administrative Tribunal (NCAT) and his carer. 3. The inquiry is not to be conducted in an adversarial manner. 4. 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. 5. The fitness test is set out in s 36 of the MHCIFP Act: A person is taken to be unfit to be tried for an offence if the person, because they have a cognitive impairment, cannot do one or more of the following— (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. 1. The test does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence. These provisions in effect mirror the common law position, often referred to as the "Presser Test:" R v Presser [1958] VR 45. 2. In determining whether a person is unfit to be tried for an offence, I must also consider: 1. whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, 2. the likely length and complexity of the trial, 3. whether the defendant's is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner: s44 MHCIFP Act. 1. These matters mirror what fell from the High Court in Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 and Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41. 2. Any determination I make must include the principles of law applied and the findings of fact on which I rely: s44 MHCIFP Act. Evidence 1. At the hearing I received the following: 1. Proposed Indictment 2. Crown case Statement 3. Report of Dr Pulman -14 July 2021 4. Report of Dr Ashkar- 15 March 2021 5. Report of Dr Geenfield -11 March 20101 6. Report of Associate Professor Davies 11 March 2014 7. Review of Mr Munday's financial management orders (NSWCAT) 8. A Wollongong Hospital discharge summary 21 July 2019 9. Statement of Senior Constable Parsons - 29 October 2020 10. Statement of Ms Paraskeva – 16 December 2020. 1. In helpful written submissions Mr Porter, Crown Prosecutor, summarised the critical findings of each expert, which I gratefully adopt. 2. Dr Greenfield found [1] : 1. The defendant's overall cognitive ability fell within the Extremely Low Range; 2. His verbal skills were Extremely Low; 3. His non verbal skills were within the Extremely Low Range. 1. He concluded Mr Munday had a severe learning difficulty. He was performing well below that expected for his chronological age on the literacy tasks. He had major difficulties in day to day activities and life events and specific difficulty with tasks that rely on even a basic level of reading and comprehension. 2. Associate Professor Davies concluded Mr Munday had Mild Mental Retardation and Delusional disorder related to his entitlements under his parent's estate. 3. Dr Ashkar found: 1. The defendant is functioning in the extremely low range intellectually; 2. His learning and memory skills, and higher-level /executive thinking skills are also impaired, accompanied by global impairments in his activities of daily living, limiting his functioning throughout his life, necessitating the need for a financial manager; 3. He satisfies the DSM-V criteria for an Intellectual Development Disability. 1. Dr Ashkar has outlined his reasons in a table [2] which demonstrates that the defendant has significant deficits with respect to all but one of the criteria in s36. Dr Ashkar concluded Mr Munday is clearly unfit because of his intellectual disability. 2. Dr Pulman assessed Mr Munday's measures of attention, concentration, processing speed and his learning and memory for new verbal information. She found that on each measure, his performance fell within the Extremely Low to Borderline range. On current assessment Mr Munday's performance was consistent with the results obtained by Dr Ashkar. 3. Dr Pulman concluded that based on his interviews and assessment together with previous assessments Mr Munday would, on balance be unfit to stand trial as; he lacks the cognitive capacity to enter a plea and provide instructions to counsel, to comprehend and follow the course of proceedings in a general sense and to understand the weight of evidence that may be presented during a trial. Submissions 1. There is, so far as counsel are concerned, no significant issues in dispute. Mr Porter for the Director of Public Prosecutions and Ms Hall for Mr Munday -both take the view, which is shared by Dr Pulman and Dr Ashkar, that Mr Munday is, and will remain, unfit to be tried on the present Indictment. Determination 1. The test in s 36 MHCIFP Act is directed to the minimum requirements for a fair trial. So long as a person accused of a crime or crimes can; understand and follow the proceedings, in each of its facets, can give appropriate instructions and present a proper defence to the charge, he is to be regarded as fit to be tried. 2. There is no issue that all of those who prepared reports are experts well respected, with training and experience in their relevant fields: s79 Evidence Act 1995. Mr Munday is in the expert opinion of Dr Ashkar and Dr Pulman unfit to tried on the present indictment - no matter what procedures might be adopted to ease any concerns. 3. I must however make my own independent determination. 4. Mr Munday functions in the extremely low range intellectually. His intellectual disability limits his capacity and ability to engage in effective reasoning and judgment. He has demonstrated little understanding of the charges made against him. He has difficulty organising his thinking about them. While he understands simple right and wrong concepts he has no real concept of the underlying moral and ethical issues. He cannot grasp the potential consequences of a guilty or not guilty plea or legal concepts such as "recklessness". He could not formulate a coherent response or defence to the charges. He has not been able to, as he cannot, instruct his lawyers in any meaningful way. His skills are so extremely low that he lacks the ability to follow the course of proceedings let alone instruct his lawyers or make a defence other than to say "its not true." He could not follow or participate in a trial in any real sense. Nor could he understand the evidence given or present a defence. He did not understand an defendant's right to challenge jurors 5. I have also considered whether the trial process could be modified, or assistance provided, to facilitate Mr Munday's understanding of, and effective participation in, a trial. But given; the number of charges, the likely length of the trial, the range of issues to be raised and Mr Munday's lack of capacity to process and deal with them (even with support and expert legal assistance), no special arrangements could resolve those issues. 6. Given all of the above I must conclude Mr Munday is and will remain unfit to be tried on the current Indictment. What comes next? 1. It is presumed Mr Munday continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case: s46 MHCIFP Act. 2. I must also determine whether, on the balance of probabilities, during the next 12 months Mr Munday may or will not become fit to be tried for the offences: s47 MHCIFP Act.Here given the nature of his cognitive impairment and intellectual disability I can comfortably conclude Mr Munday's position will not change. Accordingly, Mr Munday must now be dealt with under Division 3 of the MHCIFP Act - the special hearing provisions: s48 (1) MHCIFP Act. 3. Before I can proceed with a special hearing section 53 MHCIFP Act requires an advice from the Director of Public Prosecutions about whether or not further proceedings will or will not be taken against Mr Munday in respect of the 28 counts set out in the Indictment. 4. Accordingly I must adjourn the proceedings. Mr Munday's bail can continue. I will adjourn to 24 August 2021, to await the Director's advice. If a special hearing is required dates can then be fixed and pre-hearing orders made. Orders 1. I make the following orders: 1. There should be an inquiry into whether or not Mr Munday is fit to be tried. 2. The hearing can proceed immediately. 3. Mr Munday is unfit to be tried. 4. Mr Munday is unlikely to become fit to be tried with the next 12 months. 5. The allegations against Mr Munday be dealt with under Division 3 of the MHCIFP Act. 6. Proceedings adjourned for mention to 24 August 2021 at Wollongong District Court. ********** Endnotes 1. Page 5 2. Table 1 page 9 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 August 2021