New South Wales District Court CITATION: R v Rush, Shayne [2009] NSWDC 325 EX TEMPORE JUDGMENT DATE : 30 November 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ Accused unfit to be tried. Matter is referred to Mental Health Tribunal. DECISION: Proceedings djourned pending the outcome of the review. Accused remanded into custody until determination of the Tribunal. CATCHWORDS: Criminal Law - unfitness to be tried - unfitness raised by defence counsel against wishes of accused - fitness hearing conductedc- principles to be applied - absence of expert psychiatric evidence - bizzare conduct by accused towards defence team - apparent incapacity to instruct counsel - refusal to submit to psychiatric examination - absence of power to order psychiatric examination - only explanation held to be unidentified mental condition. R v Presser [1958] VR 45 at p48 CASES CITED: R v Tigger unreported [2001] NSW CCA 53 R v Mailes (2001) 53 NSW LR 251 R v Dennison, unreported, NSW CCA 3 March 1988. PARTIES: Regina Shayne Rush FILE NUMBER(S): 2009/70788 COUNSEL: Accused: J O'Sullivan SOLICITORS: Crown: Mr Stewart JUDGMENT 1. On 27 August 2009 the accused appeared before his Honour Judge Sorby. He was arraigned on an indictment containing seven counts and pleaded not guilty to each count. At that time his Honour stood the matter over for trial to commence on Monday 23 November with an estimate of three to four days. On 23 November 2009 I was allocated the matter for trial. The indictment contains seven charges, three of them aggravated indecent assault, three of them aggravated sexual assault and one of them incite an act of indecency. 2. When the matter came on for hearing Mr O'Sullivan of counsel who appears for the accused raised the question of fitness in the sense that he expressed concern that his client may not be fit to be tried. It became abundantly clear during the discussion (if I can just describe it that way) that then followed, that the accused was not a party to making any application for an inquiry as to his fitness. 3. But bearing in mind Mr O'Sullivan's role as an officer of the court, his duties to the court and other matters that were raised at that time, I indicated that I would like the accused to be assessed by properly trained forensic psychiatrists for the purpose of determining whether he would be fit for trial or not. It was also made clear to me at that point in time that the accused was unwilling to be so assessed. 4. Concerned that the court may be putting someone on trial who may not have reached the appropriate minimum standards of mental health or awareness of issues, I invited Mr O'Sullivan and his instructing solicitor, Mr Quinn, to consider whether they thought it was appropriate for an affidavit to be put on- without breaching any instructions, or at least getting some advice as to whether ethically they could reveal such matters as had passed between them and the accused on the question of the accused's fitness or, more importantly, unfitness to be tried. 5. That was done on 27 November. I then stood it over to today's date 30 November in order to give to Mr Quinn an opportunity to determine whether he would wish to put on an affidavit. 6. Today an affidavit has been tendered. A copy of the indictment to which the accused pleaded guilty has been also tendered before me. Today I have embarked upon an inquiry of my own motion as to whether the accused is fit to be tried or not. He has at these hearings still been represented by both his solicitor and Mr O'Sullivan. 7. The inquiry, brief as it was, was conducted in a non adversarial manner. Neither party carries an onus of proving unfitness. Neither party strictly speaking have sought the ruling. Mr O'Sullivan, because he lacks instructions so to do, and the crown because, so far as he is concerned, it is a matter, in a sense, for someone other than he, if I can put it that way. That's not to say he's not concerned but he has made no particular application. 8. The court's task however is now to determine whether the accused be unfit to be tried. That is a matter that I would have to determine on the balance of probabilities. 9. The reason the court is concerned as to whether an accused be unfit to be tried is because each person coming to be tried must measure up to certain minimum standards of mental understanding and mental health. To try, in a criminal trial, in our system of justice, an accused who does not reach those minimum standards would result in an intolerable unfairness and injustice to him. 10. As I consider whether Mr Rush is unfit, there are a number of matters I am required to assess. The starting point is one that is in his favour, in the sense that the presumption is, he is not unfit to be tried, or putting it so he can understand it, he is fit to be tried. Therefore, his unfitness is the matter that will need to be proved on the balance of probabilities on the evidence before me. 11. I also begin by accepting that qualified and competent lawyers will legally represent him at trial. The minimum standards I am concerned with are not those needed for an accused to represent himself at trial. He will become unfit to be tried because of a mental defect should he fail to come up to certain minimum standards which he need to equal before he can be tried without unfairness or injustice to him. See The Queen v Presser [1958] VR 45 at p48. There was also another case mentioned to me. R v Tigger unreported [2001] NSW CCA 53. 12. The question of an accused's unfitness to be tried is not limited to unfitness by reason of mental illness or mental disorder and is not to the exclusion of developmental or intellectual capacity, The Queen v Mailes (2001) 53 NSW LR 251. It is not a question to be determined on the mental state at the time of the alleged offence but rather his mental state or mental fitness now. See R v Dennison NSW CCA Unreported 3 March 1988. 13. The issues that I must be concerned with are these. The accused should be able to understand the nature and alleged circumstances of the charges brought against him so as to formulate his plea to them. The crown case has been tendered and is Exhibit 3. The Crown Case 14. Shortly put, all seven charges arise, says the crown out of one episode or event that occurred on Saturday 6 September 1997 against a young person, JPR, 13 at the time of the offences. On that occasion he was staying overnight at somebody's place. He decided to go for a walk. He had a headache and so he went outside by himself. He ended up in an area of bushland down the very same street, not far, I assume, from where the party was. On the crown case he was in the bush there somewhere and the accused saw him. They did not know each other. The accused threatened him and during their interchange which lasted, I would say not for long, put his hand down the victim's tracksuit pants and stroked the alleged victim's penis, made the alleged victim put his hands in the air, pulled down his pants and, licked the boy's penis which he then put in his mouth and sucked. On the crown case there were a requirement that the victim was required to say, "No-one will know about it". 15. The accused is then alleged to have taken his own pants down and sought to place the boy's penis into his anus. On the crown case the boy's penis penetrated his anus, but the boy was unable to maintain an erection. He was told to masturbate himself which he did for some two minutes. The accused also masturbated himself standing before the victim. The accused fellated the victim at a time when the boy was about to ejaculate. The victim ejaculated, on the crown case, into the accused's mouth. The accused then required, on the crown case, the victim to masturbate him and ejaculated upon the ground. Thereafter the victim was allowed to leave. The Presser Test 16. The evidence before me does not make clear one way or the other whether the accused has an inability to understand the nature of the charges or the circumstances in which they are said to have occurred. In those circumstances the presumption goes in his favour, that he does so recall those things. 17. He should have a capacity to determine whether it is in his forensic interests to seek to be tried by a judge sitting alone; assuming the crown should so consent, or by a jury. The likelihood of one or the other being taken up has not been canvassed before me and, again, in those circumstances the presumption must be in favour of the accused that he would have that capacity. 18. The accused should be capable of sensibly exercising his right to challenge a panel member from joining the jury. Challenging a potential juror requires firstly an understanding that each juror participates with others in determining whether the crown has brought evidence sufficient to prove charges beyond a reasonable doubt. All this requires that an accused, at least intuitively, base his or her challenge upon the notion that he will leave on the jury persons he feels are likely to regard his case more favourably and strike off those potential jurors he feels are likely to regard his case less sympathetically. That is to say, that his choice of jurors should, at some level, be related to his hope for outcome of the case and not upon some matter unrelated to the outcome of the trial; such as, that he likes the look of one person or that some other person smiled at him. Challenging a potential juror requires a capacity to form a view that there may well be something about the appearance or presence of a potential juror to allow that juror to form a view that he would prefer, or at the very least would not prefer, deliberations to be made by that person on the panel. 19. On that score there is no evidence. It is a much more complicated task and true it is, or can be, delegated to counsel. Nonetheless it is important that an accused be able to exercise challenges personally so that in the event he felt the need to do so he could withdraw the delegation or at least indicate that he did not agree with the proposed challenge or non-challenge prior to the opportunity passing. The evidence is silent on this. While, particularly from interventions made by the accused to me, I have some concern about it, frankly as I analyse the interventions, none of them really did bear upon that issue to the extent that I could put aside the presumption in his favour. That is, on that score at least, that he would be fit to be tried. 20. An accused should be able to follow the course of proceedings so as to understand what is going on. That is, he will need to understand at some level that the proceedings are a formal inquiry conducted before a presiding judge and usually a jury. If there is no jury he will need to understand the judge is the tribunal of both law and fact. He will need to understand the prosecutor is tasked with presenting evidence in support of the crown allegations; that defence counsel is tasked with answering those allegations as best they can be answered. He will understand that the tribunal of fact, however constituted, is tasked with determining whether the prosecution has proved from the evidence in the trial, the allegations or any of them made in the charges. 21. In respect of that matter I must say, that particularly bearing in mind some of the intervention and some of the material contained in the affidavit of Mr Quinn, I have some reservations. I will come to the relevant parts of the allegation - of the affidavit that are of concern to me overall shortly. But it will be seen that they certainly can bear upon the capacity of the accused to conceive that the jury's task or the tribunal of facts task is determining whether the prosecution has proved from the evidence in the trial the allegations it's making in the charges. 22. In following the course of proceedings the accused must be able to follow the evidence and have at least a rudimentary understanding of the reception of evidence adverse to him, whether orally or by exhibits, and have some concept of the effect of the cross-examination. For the purposes of the Presser tests I am prepared to accept that the accused does have at least a rudimentary understanding of those matters. 23. The accused must be capable of giving instructions to his legal representative both prior to and during the trial so that his lawyers can properly defend him in the proceedings. He must be able to decide what defence he will rely upon. He must be able to make out that defence, not in the sense of persuading the jury to accept it, but in the sense of articulating it so that his counsel and the court can understand it. He must be capable of articulating his defence so that he has a meaningful option to enter the witness box should he so choose. Simply put, he must be able to make his version of the facts known to both his counsel and the court. This may require some assessment of his capacity to give evidence-in-chief and to submit to cross-examination. It certainly does require some assessment of his capacity to tell his own solicitors his side of the "story". In that area I must say that I have come to a view adverse to the accused. 24. The affidavit of Brian Quinn was sworn on 27 November 2009, that is last Friday. At paragraph 4 Mr Quinn says on 26 August "I had some difficulty in obtaining instructions from Mr Rush and while he was aware he was facing criminal charges he believed them to be backup charges for offences he had previously been sentenced on and for which he had already served a term of imprisonment". Paragraph 5, "I tried to take Mr Rush through the counts but he would not be drawn on any of the specific alleged events and stated that he wanted to go to trial." 25. There was then some discussion about the accused's mental health and whether he had been diagnosed with any psychiatric conditions to which he said "No". There was some other discussion about an irrelevant matter, that is, a matter which had kept him in custody on a previous occasion, but in the circumstances of that he could not remember whether he'd been seen by a psychiatrist; but he didn't want to see one on 26 August. 26. On 27 August Mr Quinn spoke to Mr Rush where ability to communicate on that occasion seemed to have improved. On 23 September he received a letter from Mr Rush requesting assistance from him as a solicitor to deal with a request for some new prison issue shoes and to organise photographs of his feet "for his case file". Mr Quinn says in his affidavit that he was not sure what the accused meant when he referred to "his case file" but wrote to the governor on behalf of the accused. 27. On 20 and 21 October 2009 Mr Quinn received telephone calls from the welfare staff at Parklea Gaol. On the first of those two occasions he spoke to Mr Rush about his feet and shoes and on the second, contacted the Deputy's office at Parklea. On 6 November he, with his counsel Mr O'Sullivan, went to Parklea and saw the accused. On this occasion Mr Rush was more focussed on a number of issues relating to his health and his treatment or allegations of mistreatment by various government departments over the years than the proceedings. He showed Mr Quinn, and I assume Mr O'Sullivan, his feet and various parts of his torso asking him to note the appearances of a rash. The accused expressed disappointment that there was no camera there to photograph the points of interest on his body he was pointing to. There were apparently lumps on the feet such as calluses and small spots, limited in number, on the torso. Mr Quinn was unable to understand what and why he was being asked to look at in relation to this case, or any other matter as I understand it. 28. Mr O'Sullivan deposes that in relation to the criminal matters Mr Rush, after having the benefit of Mr O'Sullivan's opinion on the crown case, repeated his desire to take the matter to trial. The question of psychiatric assessment was raised and the accused indicated he did not wish to be assessed. 29. On 20 November there was a telephone call from the Legal Aid Office at Gosford which had received a letter from Mr Rush. There was some suggestion in the letter that Mr Rush no longer wanted Mr Quinn to represent him at trial. 30. On 23 November Mr O'Sullivan and Mr Quinn spoke to Rush about his wishes. That you will recall was the day fixed for trial. On that day Mr Rush indicated he was concerned with a number of things not the least of which was his outstanding civil matters. As to whether they exist or not, the evidence is unclear. He was also upset about personal belongings that had gone astray between the time of his arrest earlier this year and his appearance at court and having to wear prison greens. He also indicated that he was not ready for court as he had not spoken to his solicitor and given his solicitor instructions. Mr Quinn pointed out to Mr Rush that he was the solicitor and that both O'Sullivan and he had previously spoken to him. The affidavit continues, "...Mr Rush acknowledged my presence but went on to restate that he was not ready for trial and that he wanted an adjournment until March or April next year". Paragraph 17, "Mr Rush, when asked a number of specific questions by Mr O'Sullivan about the charges said, "I told you what happened. That's it. I'm not answering any more of your questions. I'm going to tell them what happened and that's it". 31. My sense of the situation is that up to this point in time neither Mr Quinn nor Mr O'Sullivan were possessed of any account of events that occurred on 6 September 1997, one way or the other. Paragraph 18, "Mr Rush then signalled his intention to tell the jury about his prior criminal history and the fact that he had been in gaol for the first [as said- read "last"] ten years, to explain the delay in bringing these charges and to also tell the jury about some other matters which would prejudice his case (that latter portion being the opinion of his solicitor). Mr Rush, despite our lengthy explanation as to why it would not be in his interests to make such disclosures, just restated his intention to tell the jury that he had been in prison and that these charges were backup charges". 32. In paragraph 19 Mr Quinn comes to the view that there had been a marked decline in Mr Rush's presentation and his apparent ability to understand what was being said to him over the last few weeks. As a consequence of that view his concerns about the accused's mental state were considerably heightened. It was Mr Quinn's view that neither he nor Mr O'Sullivan could make the accused understand that if he were to make the abovementioned disclosures during the trial to the jury he would seriously prejudice his position. "He did not understand that he needed to provide us with a cogent and considered response to the allegations", says Mr Quinn, and refused to provide anything but general comments about "telling his version of events relating to these charges". 33. It seemed to Mr Quinn that Mr Rush was aware of his surroundings and what he was at court for, and what he was to face court for and there would be a judge and jury present and that the evidence about the allegations would be led. "However, the accused did not or would not accept the concerns", says Mr Quinn, "raised by Mr O'Sullivan and I. He would not provide instructions that would enable us to properly conduct his defence". Para 22 is in these terms and I will quote it: "In some general sense Mr Rush spoke about the alleged victim and himself as if they were both still involved in some ongoing relationship and that they were aware of each other's thoughts and wishes, both at the time of the alleged incident and now in the present time". In the course of his submission Mr O'Sullivan said to me that, based on what he knew of his instructions and what he knew generally about the case, that was an unreal proposition. I interpolate that I fear it is one based upon fantasy. 34. In para 24 Mr Quinn forms the opinion that Mr Rush is suffering from some mental condition that strongly suggests that he either does not understand what he is charged with or if he does understand the nature of the charges, he cannot respond appropriately to the charges and provide cogent and comprehensible instructions to allow his version of the events to be properly put. It is on that score then; that is his capacity to make his version of the facts known to both his counsel and the court; that I come to a view he fails that aspect of the Presser test. 35. As to his capacity to sustain his participation in the trial for its duration, I have no evidence one way or the other and that is a matter where the presumption must go his way. 36. A person will be unfit to be tried where one or more of these matters is outside the capacity of the person because of some mental defect. It is that last portion that causes me some concern, particularly as the accused will not submit to a forensic mental examination. But I can see no other basis for the defect. He appears otherwise to be in good health. There is no explanation other than that it must be some mental defect that is causing his incapacity to give instructions. There is no suggestion he has lost his memory. There is no suggestion of some blackout or some coma. There is no suggestion of any amnesia. There is no suggestion of any gross or extreme intellectual impairment. The only available explanation is some unidentified mental condition or mental defect is causing the inability of the accused to give instructions to his solicitors and articulating a defence that can be available for him. 37. As recently as half an hour ago I asked for some indication from the accused through his counsel as to whether he was now prepared to accept a forensic mental assessment. He has indicated that he is not willing so to do. In those circumstances I am not able to order one. I cannot compel him as I understand such powers as I have, to attend any medical mental health assessment. The best that I can do is to urge his cooperation. He refuses to so do. Whether that also is symptomatic of some illness or just simply a fear of what may happen, I cannot determine. But in all the circumstances on the balance of probabilities, confined solely to the evidence before me, I have come to a view that as presently advised, he is not fit to be tried. 38. That then requires me to take some steps, does it not. I think the first of them is that I must refer him to the Mental Health Review Tribunal. I must adjourn the proceedings and I must await a report from the Mental Health Review Tribunal. I may remand him in custody until the determination of the Tribunal had been given. 39. The formal orders I make are these, Shayne Charles Rush, having been found by me to be unfit to be tried, is referred to the Mental Health Review Tribunal. These proceedings are adjourned generally. The accused is remanded in custody until the determination of the tribunal has been given effect to. 40. I should tell you Mr Rush that the tribunal will seek to determine - hopefully you may cooperate with them where you have not with me - but they will seek to determine whether the situation of your being unfit will last for more than a year. If it is not likely to last for more than a year, then your trial will be rescheduled once you become fit. If it is likely to last for more than a year then you will be given what is called a trial on limited evidence. The limited hearing is comprised of evidence which is usually regarded as limited because of your inability to instruct. So that one way or the other this matter will be determined hopefully within the year. If you become fit within the year it will be that way. If you do not become fit and the Tribunal comes to the view you will not become fit, then it will be a hearing on the limited evidence. 41. All right. Any other order I need to make? STEWART: No your Honour. 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