R v Maxwell [2023] NSWSC 1189

Supreme Court New South Wales

Medium Neutral Citation: R v Maxwell [2023] NSWSC 1189 Hearing dates: 3 July 2023; 4 July 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Jurisdiction: Common Law Before: Yehia J Decision: The Court finds that: (1) In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the accused, James Maxwell, is unfit to be tried on the offence the subject of the indictment filed against him in this Court. (2) Pursuant to s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the balance of probabilities, the accused will not become fit to be tried for the offence during the period of 12 months after this finding of unfitness. The Court orders that: (1) The accused be remanded in custody; and (2) Pursuant to s 53(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the proceedings are listed for mention on 20 October 2023, so that the Court obtains advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence. Catchwords: CRIMINAL LAW — Fitness to be tried — Accused charged with murder — Where the accused is mentally and cognitively impaired — Whether the accused's impairment can be ameliorated by the Court modifying the process and sitting hours — Accused unfit to be tried — Whether the accused "will not become fit" within 12 months Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss, 4, 4(1), 5, 5(1), 35, 36, 37, 38, 39, 44(3), 44(4), 44(5), 47, 47(1)(b), 48, 49, 50, 51, 52, 53, 53(2), Pt 4, Div 1 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45 R v Risi [2021] NSWSC 769 Category: Principal judgment Parties: James Maxwell (Applicant) Rex (Respondent) Representation: Counsel: T Evers (Applicant) D Scully SC (Respondent)