R v Farrell [2002] NSWSC 752

New South Wales Supreme Court

CITATION : R v Farrell [2002] NSWSC 752 CURRENT JURISDICTION: Common Law Criminal FILE NUMBER(S) : SC 70040/02 HEARING DATE(S) : 26 August 2002 JUDGMENT DATE : 30 August 2002

PARTIES : Regina Stephen Patrick Farrell JUDGMENT OF : Sperling J at 1

COUNSEL : Mr M L Barr for the Crown Mr D P Giddy (solicitor advocate) for the Accused SOLICITORS : Director of Public Prosecutions David Giddy & Associates for the Accused CATCHWORDS : Criminal Law - murder - fitness to plead LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990, s6, s8, s10, s11A, s12, s14 CASES CITED : Dennison (CCA(NSW), 3 March 1988, unreported) Presser [1958] VR 45 DECISION : 1. I find that the Accused is unfit to be tried for the offence; 2. I make an order referring the Accused to the Mental Health Review Tribunal; 3. I vacate any order requiring the Accused's attendance at Court on 27 August 2002.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

Sperling J

Friday, 30 August 2002

70040/02 R v Stephen Patrick Farrell

Judgment 1 His Honour: On 26 August 2002, I held an inquiry pursuant to s12 of the Mental Health (Criminal Procedure) Act 1990 (the Act) as to whether the accused, Stephen Patrick Farrell, is fit to be tried in respect of a charge pending against him, namely, that on 1 June 2001, at Warrawee, in the state of New South Wales, he did murder Bernadette Farrell. 2 I noted the determination by the Solicitor General as delegate of the Attorney General, made pursuant to s8 of the Act, that an inquiry be conducted as to whether the accused is fit or unfit to be tried in respect of the offence. Insofar as it may have been necessary, I was satisfied pursuant to s10(2) of the Act, that the question of fitness had been raised in good faith. 3 I noted the election of the accused that the question of fitness be determined by a judge alone. In reliance on a report by Dr B Westmore, psychiatrist, dated 8 August 2002, I was satisfied that the accused had the capacity to make the election. I was further satisfied, for the purposes of s11A, that the accused had sought and received advice in relation to the election from his solicitor, Mr Giddy. 4 The reasons for my finding that the accused is unfit to be tried for the offence with which he is charged are as follows. 5 The facts which give rise to the charge appear as follows from a police facts sheet tended in evidence. About 5.15am on Friday 1st June 2001 the mother of the Defendant and victim was awoken by the defendant. He said, "Dad, Bernadette's in big trouble". He then left and walked to his own room. The mother then walked to the defendant's room and asked him what was wrong. He said, "She's in big trouble". The mother then walked to victim's room and saw the victim laying on her back on the bed with an amount of blood on the sheets. The victim was pale but still conscious. The victim said, "I've rung an ambulance". The victim then made gasping noises. The mother then returned to the defendant's room. he looked at his mother and said, "I'm sorry". During this time the father, Allan FARRELL entered the victims bedroom and saw her on the bed. He said, "What happened?". The victim replied Stephen stabbed me". Alan FARRELL then turned his daughter over and saw a large wound to the right side of her back that was bleeding freely. Both parents then commenced CPR on the victim. The parents saw a kitchen knife of the bed near the victim. Police arrived a short time later and the defendant was arrested. Ambulance personnel also arrived and commenced treating the victim. Police asked the defendant where the knife was and he stated, "It is still in the room". The defendant was conveyed to Hornsby Police station and entered into custody. The victim was pronounced life extinct at Hornsby Hospital at 6.35am. The treating doctor estimated that the victim had lost 2.5 litres of blood as a result of her injury. The defendant refused to be interviewed on the advice of his solicitor. 6 The principles relating to the question of unfitness to be tried are sufficiently stated in two decisions. In Dennison (CCA (NSW), 3 March 1988, unreported), the following was held. The question of unfitness turns upon an evaluation of the capacity of the prisoner concerned at the trial to understand the proceedings, to be able to commence instructions, to be able to formulate his plea to the charge against him, and to follow to a sufficient extent what is actually taking place in the trial. 7 The test for unfitness to be tried was described as follows in Presser [1958] VR 45 at 48. It is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs … to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand the purpose of all of the various court formality. He needs to be able to understand … the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer the charge. Where he has Counsel he needs to be able to do this through his Counsel by giving any necessary instructions and by letting his Counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his Counsel, if any. 8 The onus of proof does not rest on any particular party: s12. The question of unfitness is to be determined on the balance of probabilities: s6. 9 The psychiatric evidence tendered included reports by Dr A Samuels, psychiatrist retained on behalf of the accused, dated 30 January 2002 and 12 July 2002, Dr B Westmore, psychiatrist retained on behalf of the accused, dated 12 December 2001 and 23 July 2002, and Dr Y Skinner, psychiatrist retained on behalf of the Crown, dated 19 March 2002. 10 Dr Skinner's opinion was as follows. Stephen Farrell suffers from Chronic Paranoid Schizophrenia. It has been suggested that he might have suffered a drug-induced psychosis. However, he has been in the prison hospital where he is presumably unable to access drugs and alcohol, and he continues to suffer severe psychotic symptoms characteristic of a schizophrenic illness. He has no insight into the fact that he suffers from a mental illness or that his beliefs are delusional. I consider that he was suffering from severe mental illness at the time that he allegedly stabbed his sister. I consider that he had delusional beliefs about his sister and acted on those beliefs at the time. Mr Farrell is not fit to plead and to stand trial. He is intelligent and educated and has a good understanding of the functions of the officers of the court and of the legal proceedings. However, I do not think that he would reasonably be able to decide on entering a plea to the charge, because he believes that his sister is not dead and that his actions did not cause her any injury. He would not be able to give reasonable and considered instructions to his solicitor with respect to his defence. He does not believe that he suffers from a mental illness; therefore, he would not be able to properly consider the possibility of having a defence of mental illness. He remembers the events surrounding the alleged offences. However, his description of what happened and his explanations are affected by his delusional beliefs. He was obviously distressed when talking to me about the alleged offences. He continues to suffer symptoms of mental illness and I believe it is probable that his condition would be aggravated by the trial process. Therefore I believe that he is not fit to plead and to stand trial. 11 The opinions of Dr Samuels and Dr Westmore on the question of fitness to be tried were materially to the same effect. 12 Having regard to the psychiatric evidence, and the legal principles which apply, I was satisfied that the accused is unfit to be tried for the offence with which he is charged. 13 Pursuant to s14, I made the mandatory order referring the accused to the Mental Health Review Tribunal. No further order was sought on behalf of the Crown or the accused. -oOo-