R v JH [2009] NSWSC 551

New South Wales Supreme Court

CITATION : R v JH [2009] NSWSC 551

HEARING DATE(S) : 14/04/2009, 21/04/2009, 26/05/2009, 05/06/2009

JUDGMENT DATE : 16 June 2009

JUDGMENT OF : Buddin J

1 I find on the balance of probabilities that the accused JH is unfit to be tried for the offence of murder of the deceased JM at Schofields on 30 December 2007. DECISION : 2 In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 I refer the accused to the Mental Health Review Tribunal. 3 I remand the accused in custody pending the determination of the Tribunal pursuant to s 16 of the Act.

CATCHWORDS : CRIMINAL LAW - Accused charged with murder - Inquiry into fitness to be tried - Accused unfit to be tried

LEGISLATION CITED : Mental Health (Forensic Provisions) Act 1990

CATEGORY : Principal judgment

Clarkson v Regina [2007] NSWCCA 70 CASES CITED : Eastman v the Queen (2009) 184 A Crim R 1 R v Presser [1958] 1 VR 45 Wills v The Queen [2007] 173 A Crim R 208

PARTIES : Regina JH

FILE NUMBER(S) : SC 2008/8504

COUNSEL : C Maxwell QC (Crown) P Winch (Accused)

SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) Nikola Velcic & Associates (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

TUESDAY 16 JUNE 2009

2008/8504 – REGINA v JH

JUDGMENT

Introduction 1 HIS HONOUR: The accused, a young person whom I shall refer to as JH, is charged with the murder of his father, JM (but whom I shall refer to as the deceased) at Schofields on 30 December 2007. The accused's mother is jointly charged with having committed that offence. The accused, who was born on 20 January 1993, was 14 at the time of the fatal incident and is now 16. This is an inquiry conducted pursuant to the Mental Health (Forensic Provisions) Act 1990 (the Act) for the sole purpose of determining whether the accused is unfit to be tried for that offence. In considering that issue I have had due regard to the relevant provisions of the Act which govern the fashion in which such an inquiry is to be conducted, and to the relevant legal principles to which I shall refer shortly 2 The accused has been examined by three forensic psychiatrists. Dr Stephen Allnutt has seen the accused twice at the request of the Crown and has prepared three reports dated 1 March 2009, 16 April 2009 and 23 April 2009 respectively. Dr Olav Nielssen has seen the accused at the request of his legal representatives and has prepared two reports dated 19 September 2008 and 16 April 2009 (although it was incorrectly dated 16 April 2008). Dr Kenneth Nunn, who is employed as a child and adolescent psychiatrist within Justice Health, has seen the accused regularly since he was taken into custody on 4 January 2008. He has prepared three reports for the purpose of these proceedings. They were all prepared in April of this year but only the last one was dated, namely 29 April 2009. The accused's solicitor, Nikola Velcic has sworn three affidavits dated 15 April 2009, 21 April and 27 April 2009 respectively. 3 The three psychiatrists are all agreed that the accused was suffering from a mental illness at the time of the offence such as to meet the requirements of the so-called "McNaghten test" which governs such matters. Accordingly, each is agreed, as are the parties, that the appropriate ultimate finding in this matter is that the accused should be found "not guilty of murder by reason of mental illness". Nevertheless, it is not possible to proceed down that path at this stage because the psychiatric experts are not ad idem upon the question of whether the accused is unfit to be tried. In essence, Dr Nunn and Dr Nielssen are of the view, on the balance of probabilities, that he is unfit whilst Dr Allnutt, subject to one or two matters to which I will refer in due course, takes the opposite view. Mr Velcic's position is that the accused is unable to properly instruct both himself and Mr Winch, a Public Defender, who is briefed to appear in the matter. His particular concern relates to the accused's capacity to give instructions about the "defence" of mental illness. A real difficulty has arisen because the evidence demonstrates that the accused denies that he is, or indeed was, mentally ill even though, as I have said the uncontradicted evidence of the experts is, that he undeniably is and was. 4 The relevant test to be applied was formulated in R v Presser [1958] 1 VR 45 (the Presser test) in which Smith J said: "… 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 proceeding, 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 what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to 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, I think, 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." [at 48 ] (emphasis added) 5 The relevant authorities were reviewed by the Court of Criminal Appeal in Clarkson v Regina [2007] NSWCCA 70 [at pars 126-144] and in Wills v The Queen [2007] 173 A Crim R 208 [at pars 64 - 77]. As the authorities make plain the accused must be "able to plead to the charge". The critical issue, as it emerged in the present case, is whether he has "sufficient capacity to be able to decide what defence he will rely upon and to make his defence". That is to be understood in the context of the requirement that in making his defence to the charge "he needs to be able to do this through his counsel by giving any necessary instructions".