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". The Crown case 6 I was provided with a Crown case statement. Much of what follows is drawn from that document. The narrative of events which culminated in the death of the accused's father appears in large measure in records of interview which were conducted by police with the accused and his mother respectively. 7 It would appear that the relationship between the accused's parents broke down in about 1996, when the accused was about 3. From then on the accused lived with his mother. Over the years that followed there were a number of proceedings in the Family Court in which the deceased sought access to the accused. Although I have been furnished with copies of reports prepared by Ms Dianne Starkey and Ms Anne Powles respectively which pertained to those proceedings, I do not regard it as necessary to have regard to them for present purposes. 8 Some months before the fatal incident the accused and the deceased, who were at that stage living in Maitland, discussed the possibility of killing the deceased. At that time the deceased was residing in the Sydney suburb of Schofields. On about 21 December 2007 the accused's mother went to the Kmart store in Maitland and purchased an axe which she then hid in a cupboard at her home. She and the accused then had further discussions about going to the deceased's house in order to kill him. Their plan was to kill him and then burn down his house in order to destroy any physical evidence that may have remained. 9 On the morning of 29 December 2007 the deceased and the accused's mother spoke on the phone. Arrangements were made for the accused and his mother to travel to Schofields in order to collect a parrot that the deceased no longer wanted. Following that conversation the accused and his mother again discussed killing the deceased. To that end a number of items were obtained including a box of latex gloves, two kitchen knives, the axe (which had been wrapped in a plastic bag), a packet of matches, a packet of Panadine Forte, a number of Avial capsules and a length of rope. 10 Some time after noon that day, the accused and his mother travelled by public transport to Schofields. They arrived there between about 8 pm and 9 pm. Upon their arrival they were greeted by the deceased and invited into the house. 11 The accused's mother and the deceased had a conversation whilst the accused went into a backroom and watched television. During the course of the evening the accused's mother offered to make a cup of tea for the deceased. In fact she placed the tablets, which she had brought with her, into warm water and dissolved them. She then placed the contents into a glass of orange juice which she offered to the deceased. The deceased took only one sip of the juice before telling the accused's mother that it tasted bitter. 12 In due course the deceased said that he felt tired. He then went to bed and fell asleep. The accused and his mother watched television before they too fell asleep. 13 At about 2.35 the following morning (December 30), the accused and his mother awoke. The accused's mother removed the box of latex gloves from the bag which she had brought with her. She and the accused then each placed a pair of gloves on their hands. She handed the axe to the accused and also removed from the bag a kitchen knife which she retained for herself. 14 The accused and his mother then went to the deceased's bedroom. The accused placed a pillow over a small night-light which illuminated the hallway. The accused and his mother then swapped weapons so that the accused then had the knife. Both of them then proceeded to attack the deceased with those weapons. The accused's mother struck a number of blows which inflicted large wounds to the deceased's chest and upper torso area. The accused also stabbed the deceased a number of times in the upper chest. 15 The blows caused the deceased to wake up. He pushed the accused's mother away from him as he attempted to run from the scene. That prompted the accused to again stab the deceased in the region of his upper torso. The deceased was nevertheless able to wrestle the axe from the accused's mother but by this time he was bleeding profusely. He managed however to get to the front door of the house where he called for help. 16 The deceased then turned towards the accused and his mother. He proceeded to abuse them whilst still holding the axe. The accused and his mother then ran into the deceased's bedroom and attempted to lock the door. The accused and his mother made good their escape from the house through the window in the toilet area. 17 In due course the deceased collapsed to the floor near the front door of his house and died. The cause of death was a stab wound to his right thigh which had penetrated the femoral artery. The deceased had also sustained a number of other injuries but none of them apparently were fatal. Meanwhile the accused and his mother made their way back to Maitland again using public transport. 18 Upon their return to Maitland, the accused and his mother told a number of witnesses that they had assaulted the deceased with an axe. On 3 January 2008 the accused and his mother attended a real estate agency in Maitland. She handed in the keys to her house having decided that she could not return there. She told the real estate agent about the events which had taken place in the house in Schofields. As a result of that conversation, the real estate agent drew to the attention of the accused's mother a newspaper article on the internet which reported that the deceased had died as a result of the injuries which had been inflicted upon him. 19 At about 1.15 that afternoon police from Maitland detectives arrested the accused and his mother as they left the real estate agency. They were taken into custody and transported to Maitland Police Station. 20 The accused was interviewed in the presence of a support person. I was provided with a transcript of that interview which I have had the opportunity of reading. During the course of that interview he made admissions concerning his role in causing the death of his father. He told police that his purpose in travelling to Schofields was to kill his father whom he hated. He explained his feelings towards his father in some detail. He said that the various pieces of equipment that they had taken with them was for the purpose of killing him. The medication which they had with them was to enable them to drug the deceased so that they could then kill him before destroying the house by fire. The accused's mother also made admissions which, in general terms, were to the same effect. However, she said that she had participated in the killing in order to protect her son. The evidence concerning the accused's fitness to be tried 21 It is convenient to refer at this stage to the affidavit of Mr Velcic sworn on 15 April 2009, the relevant parts of which appear below: I am an accredited specialist in criminal law and have had extensive experience in dealing with young persons. I appeared for the young person in the Children's Court and in the Supreme Court. I have had numerous conferences with the young person alone and with counsel. The young person would provide basic instructions but would then ask questions indicating clearly that he did not understand my questions. The situation did not improve with time and with the assistance of the young person's Chaplain Lee Bromley. I contacted Dr Nunn and spoke to him about the young person's mental health issues. The inability to obtain instructions and the young person's mental health issues caused me to request a psychiatric report from Dr Nielssen. It is my view that the young person does not understand the effect of the evidence against him and does not have the capacity to provide me or Mr Winch with instructions. It is my view that the young person does not have the ability to make his defence or to answer the charge. I have read the reports of Dr Nunn and Dr Nielssen and agree with their opinions particularly in respect of the level of intellectual functioning of the young person. 22 It is apparent from the material which has been placed before me that the circumstances in which the accused spent his early years were highly unusual. Some insight into them is provided by Dr Nunn in his initial report. The following extract is taken from that report: JH is a 16 year old boy of mixed Hungarian and Torres Strait Island ethnicity. … JH's mother and father lived together for three years and other than a further brief relationship, JH's mother has lived with JH only in an exclusive and isolated relationship. JH describes spending the entire day with his mother watching television, looking after his fish, his car and train collection and going out to shops or restaurants where she would introduce him to European food, sometimes quite exotic food like caviar, despite their straightened financial circumstances. JH's mother has a history of attempted suicide at the age of 15 years. JH described visiting the General Practitioner (GP) regularly with his mother who took JH to him to have him checked for signs of abuse after contact with his father with no effective outcome from his point of view. JH says that he told the GP and the DOCS workers that he would kill himself if he had to have maintained contact with his father. … His mother was on a pension for reasons which JH was unaware and was able to do only occasional casual work in cleaning or with a charity organisation. They were both, from JH's account, leading very socially isolated lives from both adults and children. JH describes his mother warning him that his father had been in the vicinity of their house and had actually taken up residence in the roof. His mother was continually preoccupied and distressed by the appearance of a tarpaulin on the roof, a manhole that was sometimes opened and sometimes closed, and food that was suspected to be poisoned, including teabags and milk. JH was concerned to liberate his mother from her distress about these things. He described the distress of his mother and the constant harassment by his father. However on each occasion that I tried to find out what he had actually observed, what stood out was the degree to which he was reliant upon his mother's description and interpretation of events. For example, when she described the manhole cover being moved it was always ascribed to his father being in the roof. The only events that JH describes in detail in relation to his father are the abuse that his father dealt out to him (whether this was in fact or in his psychotic experience). Initially JH attended school and in each school setting he reports being bullied in relation to his colour. In his last year at school (Year 8), JH made allegations of sexual abuse perpetrated by other students. This came, I understand, after extensive involvement with the Family Court relating to contact with JH and his father and always referring back to alleged domestic violence and maltreatment. Unfortunately I have been unable to gain access to this material. However, I understand that contact was continued based upon directions of the Court. It was these directions together with the inability of DOCS to mount any effective case that JH cites as the reason he believed that no one believed him, or if they did believe him, they were unable to act. So far as I have been able to confirm neither DOCS nor the local doctor have at any stage seen evidence of the extensive abuse detailed by JH nor the rape of JH's mother, communicated to JH by her. JH reports having difficulty at school which was mainstream and not appropriate to his intellectual disability. 23 As I have said, Dr Nunn has been seeing the accused on a regular basis since his incarceration. In preparing his report, he had the benefit of being able to gain access to clinical case notes retained by Justice Health. Contained within that material were the observations made by four other psychiatrists who had reviewed the accused's situation since he has been in custody. The notes also included two separate assessments which had been made by a senior psychologist employed by the Department of Community Services, and various reports which had been prepared by the Serious Offender Review Panel. 24 In his report of 23 April, Dr Allnutt provided further details about the accused's attitude towards his father. The following extract is taken from that report: He said ever since he was a child, he hated his father. He never wanted to be separated from his mother. He used to cry a lot when he was little. He said his father was a violent man. His father would make him bend over and his father would hit him across his buttocks with a belt. He would make him eat his own vomit (until age 8); he would force him to eat his food. He then added that his father put poison in his cereal. He said he had found poison in his cereal. He said he first saw his father pour poison into his cereal when he was about age 5. He recalled it was "blue stuff". From age 10 he started flushing his cereal down the toilet. Last year he said his father started poisoning not only his cereal but his food as well. He said the food tasted like poison. When he was younger it was the blue stuff but he alluded to different poison at this stage. In the beginning of 2007 he started taking food home to show his mother. She told him it smelt like poison. He could also smell poison in it, he said. After each visit with his father, he lost weight and she would have to take him to a doctor. His mother, he said used to tell the doctor that he was being poisoned but the doctor never said anything about that. He would gain weight after he came back from living with his father. He believed that his father was poisoning him because his father hated him and his mother and because his father was planning to kill him and his mother. He said his father used to spy on them; he would drive past their house, at night he would be on the roof trying to listen to what they were talking about; he used to hide inside their garden on occasions; on some occasions he had seen him and on other occasions only his mother had seen him; he heard his father up on the roof; he could hear his father walking around. He had two cats and they would hiss when his father was around. On occasions he heard somebody jumping over the gate. He and his mother knew that his father was planning to kill them. He said that when he was smaller he had heard his father say "I'm going to kill you". He estimated he had heard his father say this when he was about 8 to 10 years of age. When he and his mother went outside the house they would see footprints in the dirt. His mother used to talk about how horrible his father was. She told him that prior to his birth his father had raped her twice. His mother told him this for the first time that she had been raped by his father when he was 5 or 6 years of age. He said also at 5 or 6 years of age he had seen his mother with bite marks all over her body. His mother told him that prior to his birth she had been pregnant with another child and that his father had shoved a rod up her vagina and raped her and killed the baby. She said that if his father had not done that he would have had an older brother. His mother told him that his father had tried to so the same thing when his mother was pregnant with the defendant. He said that his mother told him his father tried to rid of the defendant when she was pregnant with him. She said she kept what he did a secret because she told him it was too bad to tell. His father was really a bad person and the Courts would never listen to he (sic) and his mother about how bad his father was. He then added "I really hated my dad". 25 Dr Allnutt then expressed the following opinion about the accused's mental condition: By the time that the alleged offence occurred the defendant had been living with his mother for 14 years, during a period of development and high dependence and a period of significant vulnerability to influence. The evidence suggests to me that from a relatively young age he has believed that his father was a bad man, and violent towards him and his mother; that his father was poisoning him; that his father had raped his mother; his father had prevented his other sibling from being born by violent means; had attempted to kill him in utero; he was also of the view that his father was plotting to kill he (sic) and his mother. These beliefs were further compounded by the influence of his mother, and in the absence of any significant others to challenge them, significantly influenced his thinking process to the extent that he maintained them with a significant degree of conviction; so that at the material time that the alleged offence occurred he manifested persecutory delusions that related to his father, auditory hallucinations and ideas of external control such as receiving telepathic messages from other people and would be regarded as suffering from psychosis. In addition to this the defendant was of a young and vulnerable age, immature and was intellectually impaired, and would be regarded by most psychiatrists as meeting the legal definition of having a "disease of the mind". Psychosis is a mental illness and impacts on an individual's capacity to make rational interpretations of their environment. It also is a condition that impacts on a person's capacity to appreciate that they have lost that capacity. Psychosis is a condition that affects reasoning capacity and thus at the material time of the alleged offence as a consequence of the disease of the mind he manifested a defect of reason. Intellectual impairment, immaturity and his social circumstances would only serve to compound these difficulties. I do not, however, believe that his defect of reason was of a nature and severity that it impacted on his capacity to know the nature and quality of his actions. His account suggests an understanding that the person who was being harmed was his father and that weapons such as axes and knives could kill or seriously harm his father if utilised on his father. I am, however, of the view that his capacity to understand the wrongfulness of his actions was significantly impaired. The information suggests that he is a relatively isolated young child with limited external social contacts. He would have been highly influenced by his mother, his values and opinions and particularly his regard for his father. It appears that the defendant had developed a strong sense of commitment and loyalty to his mother probably in the relative absence of external challenges to his belief system; this probably shaped the content of his developing delusions and perceptual interpretations as his mental illness emerged over time, to include themes of his father as persecutor; and this subsequently led him to conspire with his mother to kill his father. He describes at the material time believing that he was doing the right thing; while he might have had some faculty for knowledge of the wrongfulness of his actions, possibly in the sense of the objective wrongfulness (that is that other people might see what he had done was wrong which explains the attempts that they made to hide the evidence initially) from a subjective perspective he believed that he was acting in a manner that was in his and his mother's interests and that it was morally right; his delusions, hallucinations and referential experiences providing him with that justification (thus an irrational justification). I do not believe that, given his intellectual impairment, psychosis and immaturity (age) at the material time of the alleged offence, that he would have been capable of reasoning about the wrongfulness of his actions with a moderate degree of sense and composure and thus he would have available to him a defence of mental illness . (emphasis added) 26 I referred earlier to the fact that Mr Velcic sought an opinion from Dr Nielssen concerning the state of the accused's mental health. Dr Nielssen, in a report dated 19 September 2008, expressed his opinion in the following terms: The diagnosis of schizophrenia is made on the basis of JH's account of typical symptoms of schizophrenia and what seemed to be a delusional belief regarding abuse at the hands of his father, the corroborative provided by JH's treating psychiatrist and the Justice Health medical records and JH's presentation at the recent interview. JH's grievance against his father was thought to have been based on information provided by his mother that was incorporated into a delusional system, as the history elicited was that JH had not been in the care of his father since he was three years old. He also expressed the bizarre belief that he had lost the ability to read as a result of abuse by his father. At the time of the recent interview there appeared to be some doubt about JH's fitness for trial. He understood the name of the charge and was able to provide an account of the events. He was also able to give an account of symptoms of mental illness, although he did not appear to recognise that he had been mentally ill. There is a chance that JH's condition will improve sufficiently within the next twelve months for him to be considered fit for trial. I believe that JH has the defence of mental illness available to him. He has an early onset schizophrenic illness that has resulted in a defect of reason in the form impairment in intellectual function and a shared delusional belief about his father. His immature emotional development and low intelligence, and the influence of his mother with whom it appears he shared a delusional belief regarding his father prevented him from realising that his actions in killing his father were morally wrong. 27 Dr Allnutt had already concluded in his report dated 1 March 2009, that the accused "presents with limited intellectual capacity". He also found that "he suffers from a chronic psychotic disorder. The differential diagnosis would include schizophrenia, schizoaffective disorder with shared delusions". Nevertheless, having considered the Presser test, he concluded that "I believe at this stage the [accused] should be regarded as fit to stand trial. His mental state could fluctuate given that he has a mental illness and he could become unfit". 28 Dr Nunn in his initial report diagnosed the accused as suffering from paranoid schizophrenia, major depression with melancholia and as having an intellectual disability. In that report Dr Nunn also made the following observations concerning the question of the accused's fitness to be tried: My basic concern is one of his capacity for comprehension as an independent, autonomous individual without reference to his mother's world view. There are a number of lesser, but nevertheless significant, challenges to his comprehension as well. Firstly, there is the matter of his intellectual level which, though not comprehensively assessed, remains reliably assessed, placing him in the mild disability range with IQ between 57 – 73 and lower than 99% of other young people his age at a 95% confidence interval. … He was functioning cognitively, some 12 months after the offence and four months prior to the proceedings now before the Court, at a functional level between seven and eight years of age. It is still possible, that he understands at a cognitive level what he is charged with and what the proceedings are about. It is even possible that over the coming years his intellectual level will improve into the borderline disability range. I am unable to say what his cognitive level was at the time of the offence, except to make the obvious observation that it is unlikely to have been higher than either of these measures. However, it should also said that the capacity to repeat back basic instructions and to say what people have said to him over and over again does not necessarily constitute comprehension or understanding. JH has an intact memory. He can therefore repeat back what he has been told. Most of the questions used to assess Presser are in danger of assessing the presence of language and the presence of memory without any serious appreciation of the development of understanding. There is the matter of his mental illness, which, in and of itself, does not alter his ability to understand the charges against him, his memory of the events (delusionally perceived or otherwise) leading up to these hearings, the proceedings of the Court and his capacity to express his own wishes and to instruct counsel. He is, as far as I have been able to ascertain from him, more able to do this now that at the time of the offence. … There is the matter of his social and emotional development, which when he came into custody was that of a much younger child who had not effectively separated from his mother and remained in the preschool/early infancy school level (i.e. lower than his cognitive development). He was socially isolated, naïve, and non-interactive with peers until the last few months prior to his transfer when he began to make substantial progress and gain some social and emotional confidence. He displayed many of the features of an extremely socially deprived and isolated boy with even some features more typical of autism, which remitted with time away from mother and with other people in detention. It is possible, that he now understands at a social and emotional level what he is charged with and what the proceedings are about. It is probable that over the coming years his social and emotional level will improve to, or above, his cognitive level (i.e. out of the disability range of social and emotional development). I am not sure that JH understands that he is not being tried for defending himself and his mother against what he and she believed (as one person) at the time was a persecutory and abusive father, from whom they could gain no legally sanctioned respite, despite trying to do so on multiple occasions. He does not understand the difference between killing someone and murdering someone. I do not believe JH will enter any plea that he believes will not be in his mother's interests, irrespective of whether or not it is in his own interests. He has never been truly convinced by anything that I have said in relation to him having a mental illness … In that sense, he does not have a very basic insight to inform the capacity to decide upon the defence he will rely upon and his judgment is deeply clouded still by the continuing influence of his very troubled mother . He does, however, have the capacity to make his version of the facts known to his counsel and the Court. I understand that defendants do not necessarily have to do what is in their own interests and that the Court is not obliged to ensure that they do what is in their own interests. My difficulty lies in the fact that JH is cognitively, emotionally and socially a minor, with the co-attendant range of vulnerabilities and emotional dependencies, in a relationship with a parent who has very distorted views of reality and an entirely undue influence upon his beliefs. As such, I am concerned that he will necessarily, because of his lack of insight, not do what is in his best interests in relation to acknowledging his illness, his need for treatment, his need to seek a defence based upon the illness and his response to treatment. As can be seen, any individual matter relating to JH's fitness has elements lacking precision when assessing them and which, taken alone, might not remove the presumption of fitness. Taking all of these issues into account together (i.e. an intellectually impaired, hitherto extremely socially isolated, emotionally vulnerable, mentally ill young man who has been cared for and cosseted away by a mentally ill mother who, even still, continued to have a determinative emotional currency in his beliefs and decision making), it seems unlikely that he is fit to stand trial. He is able to comprehend little more than whether he will be punished for killing his father or not and whether what is decided in relation to him will make it better or worse for his mother. (emphasis added) 29 At my request, and with the concurrence of counsel, the three psychiatrists met together to discuss the accused's case. In a supplementary report, which is dated 16 April 2009, Dr Nielssen expressed the following opinion: I confirm the opinion expressed in my previous report that JH has the chronic mental illness schizophrenia on a background of a learning disorder and subnormal intelligence. The acute symptoms of schizophrenia are currently in remission, to the extent that he has been able to withdraw from treatment with antipsychotic medication. However, according to Dr Nunn's observations he still holds overvalued ideas about his father's abusive behaviour and does not fully understand why he is being held in custody. The further reports and your observations confirm the opinion expressed in my previous report, that JH is unfit for trial. JH is able to answer questions about the nature of his charges, the general nature of the proceedings and the roles of the participants in an adversarial trial. However, his level of understanding is superficial and he does not recognise that he was ever mentally ill and is unable to provide reliable instructions regarding the role of mental illness in his offence . Like many people with low intelligence JH is quite suggestible and is eager to please by agreeing with propositions put to him, even if he does not fully understand what he has been told. I believe his intellectual function is at such a low level that he would be unable to understand much of what was said in court … and would be unable to provide ongoing instructions based on an understanding of what was said in court or on legal advice put to him in the simplest of terms. JH's condition is unlikely to improve sufficiently within the next twelve months for him to be considered fit for trial. (emphasis added) 30 Dr Nunn's supplementary report, is relevantly, in the following terms: Dr. Allnutt, Dr. Nielssen, and Dr. Nunn met for approximately one hour. A number of points of consensus were clear. All three agreed that JH suffered from a psychotic illness of long standing which is best described as paranoid schizophrenia. After some discussion about the nature of the psychological testing done all three agreed that JH suffers from an intellectual disability. All three agreed that there were unique circumstances about his upbringing, his relationship with his mother and her mental condition that had a strong bearing on the circumstances surrounding the crime. Dr. Nielssen and Dr. Nunn agreed that a boy of this age, with this intellectual level and with his diagnosis, in the unique circumstances of his life, rendered him unfit for trial. The disagreement between Dr. Nielssen and Dr. Nunn on the one hand and Dr. Allnutt on the other focused on the Presser criteria and the nature of understanding. Dr. Nielssen made the point that the intellectual level, contributed to by a mental illness, was sufficient in his view to remove the presumption of fitness. The rest of the discussion was a systematic review of the Presser criteria with a discussion between Dr. Allnutt and Dr. Nunn. The points raised by Dr. Nunn include the following: 1 The generic capacities of any young person JH's age There are a number of broad and enduring intuitions of the community which inform legislation in relation to a young person of JH's age; not being able to purchase cigarettes or alcohol or engage in a commercial transaction involving contract without special safeguards. He is unable to obtain a driving license and has only recently become of an age when he might give a definitive consent for an operative procedure. Although these are very different circumstances, they reflect a recognition that juveniles have special issues relating to decision making, judgement, capacity to envision options both short and long term, and the capacity to appreciate the jeopardy in which they stand when serious indictable charges are brought against them. The intuitions of the community have been confirmed by a number of studies looking at the decisional and adjudicative capacities of young people and the brain development underlying them. 2 The compromise of capacities associated with intellectual disability and mental illness In relation to intellectual capacity, JH stands in the lowest one percent of those young people, referred to in point number one, being a 7-8 year old in functional, cognitive terms. This global impairment renders all of his understandings in relation to Presser compromised. His mental illness further compromises his capacity to interpret, judge and anticipate the matters as they proceed before the Court. His capacity to meaningfully and effectively participate in the proceedings of his case will be affected by those mental capacities most vulnerable to schizophrenia (the so-called executive functions of the frontal lobes of the brain) viz, planning, reasoning, grasp and strategic anticipation with a clear appreciation of options and likely outcomes. These are critical to his capacity to instruct counsel, to challenge and to weigh up the advice of counsel and the options before him . 3 The nature of understanding as a central underpinning concept in the Presser Criteria Five out of the seven criteria relate to understanding. The term understanding I take to mean those underlying capacities, cognitive, emotional, social and psychological, that underpin, or "stand under" all the other mental processes of grasping accurately and responding appropriately to what is going on around the person in question . I do not understand this to mean simply the capacity to remember what is said, to repeat what is heard, to assent to questions in relation to understanding, to rehearse desired responses and to retell informational instructions. These confirm intact hearing, vision and memory, together with the speech apparatus. They do not confirm the capacity to meaningfully apprehend the significance of the difference between killing and murder, short term and long term consequences of decisions fraught with jeopardy and the necessary communicative skills to participate meaningfully and effectively in the ebb and flow of the adversarial procedure. … The failure for understanding to reach into the future, often subsumed under the term judgement, is perhaps the component of understanding that is most fragile in JH. His inability to understand past and present in terms of his own condition , relationship to his mother and predicament, often subsumed under insight, renders him vulnerable to undue influence to a person in a special relationship (i.e. child - mother). … Conclusion The developmental immaturity, intellectual disability, mental illness and unique psycho-social circumstances, which form the context antecedent to his crime, and now concurrent with the proceedings before the Court, render JH unfit . (emphasis added) 31 After he had the opportunity to conduct a further examination of the accused, Dr Allnutt also provided a supplementary report which is dated 16 April. In it he expressed the following opinion: Overall the defendant manifests three problems that could impact on his fitness to stand trial, namely mental illness (positive symptoms in remission), intellectual impairment and young age. It is important to note that in many responses the defendant was hesitant and slow to respond as if unsure of himself. I am of the view that as experts in this case, our areas of disagreement are a result of different thresholds applied to the Presser criteria. My understanding is that the test for fitness is relatively low test, that is that a relatively high degree of impairment needs to be present for a person to be found unfit. In NSW the necessary level of understanding of each criteria as articulated in Presser is limited in that, for example, it is not clear what is required of a person to be deemed having the capacity to instruct counsel; I have proceeded on the assumption that the legal test is relatively low and that this is what is meant by the term "minimal standard". I also proceed to the understanding that fitness to stand trial is an issue of capacity. … 32 Dr Allnutt then again examined the various Presser criteria and their applicability to the accused's circumstances before continuing: The area that I believe the Defendant might have difficulty is in providing necessary instructions – I base this on the information provided to me by counsel and the affidavit sent to my offices; my concern in this regard [is] also based on his presentation in interviews with me when he does appear to be hesitant in his answers. If the Court accepts the affidavit provided by his counsel then I would conclude that he is unfit to stand trial. However based on the information contained in the affidavit I am personably unable to form a view on the issue, because I am unable to draw conclusions as the nature of the difficulty that counsel had. In my interaction with him, while more difficult than other individuals, I thought it possible to obtain information from him with regard to his preference and with regard to issues relating to the alleged offence. His capacity to follow proceedings is also raised, if he is unfit to instruct then he also probably unfit to follow proceedings and participate; his psychological report demonstrated a low IQ and suggested a disinterest during testing; it is possible he might have difficulty in comprehending the usual vocabulary utilised by the court officers; it would be important for the court to consider this; in interview he however understood the meaning of questions put to him if more simplified language was used; I believe he would probably understand what witnesses said (except for experts) and the content of witness statements; if there was concern about this, I am of the view that if counsel explained them to him before trial he would generally understand their content. A factor that needs to be considered in this case is the complexity of the case. The more complex the hearing the greater the degree of fitness required. If the court concludes that this is a complex case then I would envisage difficulties and he could then be unfit to participate; if the court concludes this is a more simple case then he could be fit enough to participate because potentially little participation might be required. This is a difficult case and raises the issue of capacity versus knowledge. There is limited objective evidence that the Defendant has been educated in Court processes (in discussion with his nurse she informed me that she was unaware that anyone had embarked on such a process with him), and I am unable to determine from counsel's affidavit to what extent they engaged in such a process. It is understandable that given his age and intellectual impairment that he would come into the matter with a poor understanding of legal proceedings and thus he prone to a limited performance when answering questions that test for understanding of Presser. It is probable, for example, that should he spend a day in Court with a carer outlining the roles of the various individuals and functions of the Court he would have a much better understanding of Court proceedings than he apparently presents with. I am of the view that he has capacity to gain further knowledge and that his capacity is not as impaired as it presents on clinical interview because of lack of knowledge. He is undoubtedly a person with limited intellectual abilities; but when examining his understanding of the Presser issues my view is that he manifests a marginal capacity that suggests he meets the minimal standards necessary in regard to most of the Presser criteria. In the absence of more detailed information from counsel on the nature of the difficulties counsel has had with him, I am reluctant at this stage to support the view that he is unfit to stand trial without further information because at this stage I do not think there has been adequate enquiry into the matter of instruction. (emphasis added) 33 In response to the matters raised by Dr Allnutt, Mr Velcic swore a further affidavit on 21 April 2009. It is in the following terms: I first saw the young person on 23 January 2008 in the custody area at the Parramatta Childrens Court. I saw the young person for over 1½ hours before he went to Court. The young person was small in stature and frightened in appearance. I attempted to explain the nature of the charge and the reasons for him being locked up. All he wanted to know is why he could not see his mother. I explained to the young person that he was in a Childrens Court and his mother was in the adult Court. He did not seem to understand what that meant. The young person did not like where he was and wanted to be released so that he could be with his mother. I attempted to explain considerations for bail given the charge. The young person did not understand what I had said and I had to advise him to stay where he was as his mother would be locked up too. I have seen the young person on approximately 10 occasions. On some occasions I have seen the young person with Counsel. It is difficult to ascertain the total time spent with the young person. In excess of 20 hours has been spent with the young person since January 2008. On 4 July 2008 , I attended with the young person for arraignment before Mr Justice Barr at the Supreme Court. I arrived at approximately 9.30 am and spoke to the young person in the cell complex at Level 1 in the Supreme Court at Queens Square. I advised the young person of what an arraignment was and entailed. I advised him of the role of Mr Justice Barr and the roles of the Solicitors and Barristers appearing for the Crown and appearing for him. After 30 minutes the young persons' only comment was whether they would serve McDonalds and if he could get an apple pie. I advised him I would see what I could do. The young person was transferred to Level 13 and was housed in a void between the holdings cells adjacent to the cell complex. I appeared before Mr Justice Barr and the matter was adjourned to 5 September 2008. After the attendance I arranged for a further conference with the young person. I was able to secure a conference room on Level 13 adjacent to the holding cell. I was also able to persuade the Juvenile Justice Officers to allow Lee Bromley to attend the conference. I attempted to explain the arraignment process to the young person in the presence of his counsellor. Lee Bromley also attempted to clarify parts of what I had said. The young person's only comments were when he was going to get his McDonalds lunch and if they were bringing an apple pie to him. I told the young person that I would see what I could do but he was in the care of the Juvenile Justice Officers and I had no control over the Lunch. On 5 September 2008 I appeared on behalf of the young person before Mr Justice Barr. The young person was most concerned and distressed that he did not receive lunch on the last occasion. I attempted to explain the arraignment procedure again to the young person. He would listen to me and nodded from time to time. I asked if he had any questions. He asked if I could arrange a McDonald's apple pie for lunch. The only other matter that the young person brought to my attention was his desire to see his mother and whether he would have a chance to get a hug from her. I attended a number of conferences between the young person and Mr Winch of Counsel. Those conferences took place primarily in the cell visits area at the Supreme Court building or in the witness room adjacent to the holding cells on Level 13 of the Supreme Court building. Usually Counsel and I were assisted by Lee Bromley being in attendance. Mr Winch attempted to explain the arraignment procedure and trial procedure to the young person. On each occasion the young person would appear to listen to what was said. He stated that he understood. The young person would not ask questions except in respect of contact with his mother and lunch. He answered questions using monosyllabic words which led me to believe that that he was not responding to the questions put and he did not understand the advice given. He was providing answers in a way to minimize the contact with his legal representatives and he gave the impression that he just leave (sic) the Court complex. I did not believe that the client understood the importance of the questions asked and answers given. Accordingly, I was of the view that the young person did not understand the advice given and could not provide instructions. On 7 November 2008 I had a conference with the young person and Mr Winch. During the conference the procedure for fitness hearing was explained to him. Counsel and I were assisted by Lee Bromley being in attendance during the conference. The young person was focussed on the conditions of his custody and the lack contact (sic) with his mother rather than the advice given and the proceedings generally. It was clear from the young person's questions that he did not understand the nature of the fitness hearing proceedings. I attended a further conference today with the young person and Mr Winch of Counsel. Dr Nunn attended as a support person. The present proceedings were discussed with the young person. The young person did not understand the fitness proceedings. The young person said that he was told by a Doctor at Baxter that if he was found to be mentally ill then he would be locked up in a mental institution and chained to a bed. I advised him that this would not be the case. My opinion was reinforced by Counsel and Dr Nunn. In the course of the conference the young person instructed us that he did not believe he was mentally ill. I continue to believe that the young person is unable to provide his solicitor and barrister with instructions and does not fully understand the current proceedings. (emphasis added) 34 As I observed earlier, each of the three psychiatrists is of the opinion that the accused was mentally ill at the time of the offence. Against the possibility that agreement could be reached about the issue of fitness, Mr Velcic sought instructions from the accused as to whether he would be prepared to be tried by judge alone. As a result of that process Mr Velcic provided a further affidavit, sworn 27 April, in which he indicated that he had satisfied himself that the accused understood the nature of the election which he had been asked to make. Mr Velcic referred to a conference with the accused in which the latter had been able to satisfactorily describe the respective roles of a judge and jury and of the legal representatives. Mr Velcic also indicated that the accused wished to be tried by judge alone in the event, of course, that the matter was able to proceed to trial. In due course, however, I was informed by Mr Winch that there still remained an issue concerning the accused's fitness. Mr Winch informed me that Dr Nielssen and Dr Nunn remained of the view that he was unfit, that Mr Velcic remained unable to obtain instructions, whilst Dr Allnutt remained of the view that the accused was fit. 35 It was in that context that Mr Velcic and Dr Allnutt gave evidence when the matter came on for hearing. Mr Velcic said that when he first saw the accused he formed the view that he was "amongst the lowest functioning persons that I have seen". He did say however that the accused had matured over time and that his capacity to understand the proceedings and to instruct counsel had improved to the extent that he was able to make the election for a trial by judge alone. However, he also gave evidence that on occasions the accused "will answer propositions and give responses that on the face of them seem to acknowledge his understanding. But the difficulty that he has is the next day, or even that afternoon, the questions that he would ask of you would demonstrate that he has not really understood anything at all". Dr Allnutt gave evidence that although in his view the accused recognized that a person who was mentally ill could avail himself or herself of the "defence" of mental illness, nonetheless the accused would not accept that he was mentally ill at the relevant time. Dr Allnutt acknowledged however that he was unable to determine whether the accused had formed that view because he lacked insight into his illness or because he simply did not want to accept that he was mentally ill. Determination 36 I have set out at some length the material which was adduced at this enquiry and have highlighted those passages in the evidence which have assumed particular significance. I have been assisted by having the professional opinions of three highly experienced psychiatrists and I have placed considerable reliance upon those opinions. I have also had the benefit, as I have said, of evidence from Mr Velcic. Both he and Mr Winch are very experienced and highly competent practitioners who have particular expertise in matters of this kind. In my view, the evidence points irresistibly towards a conclusion that the accused is unfit to be tried. In arriving at that conclusion I have taken into account a number of factors. First, there is the evidence of Mr Velcic who expressed the view that the accused "did not have the capacity to provide [his lawyers] with instructions". It was his opinion that the accused "did not have the ability to make his defence or answer the charge". One can readily understand Mr Velcic's position given the uncontradicted evidence that the accused does not believe that he was mentally ill. A situation such as the present case can give rise to very significant challenges for legal practitioners. See, for example, Eastman v the Queen (2009) 184 A Crim R 1 (at para 18). In my view however, it is not necessary for present purposes to explore those issues because no argument has been advanced to suggest that I should reject Mr Velcic's opinion. Indeed, I see no reason why I should not accept it. 37 Secondly, there is the evidence of Dr Nunn and Dr Nielssen each of whom is of the opinion that the accused is unfit. It is unnecessary to repeat what each of them have had to say because I have already set out their views about the matter. Moreover, Dr Nunn had the distinct advantage, in arriving at his conclusion, of having seen the accused over an extended period of time. 38 Thirdly, although Dr Allnutt is of the opinion that the accused is fit, his opinion is nonetheless somewhat qualified. I have given anxious consideration to his opinion which is entitled to considerable weight. However, as I have said, I am prepared to act upon Mr Velcic's evidence that he is unable to obtain proper instructions from the accused. Dr Allnutt candidly accepted that this was a matter about which he was not in a position to express a concluded opinion. Furthermore, he also acknowledged in his report of 16 April that the accused may have difficulty in providing such instructions. 39 Finally, I have had regard to the fact that the accused's overall condition is affected by a unique range of matters including his mental illness, his intellectual disability, his highly unusual background and of course his age. All of those matters, especially when considered in combination, bear significantly upon the issue at hand. 40 The Crown referred to the material contained in Mr Velcic's affidavit of 21 April in which he records that the accused "was told by a doctor at Baxter that if he was to be mentally ill he would be locked up in a mental institution and chained to a bed". He submitted that that indicated "a potential reason why the young person might choose not to accept that he was mentally ill". I would not be disposed to draw such an inference. I observe that Mr Velcic was not cross-examined upon this aspect of the matter and accordingly, the remark remains an isolated comment. More importantly, it is to be weighed against the remainder of the evidence which points in the opposite direction. 41 In all the circumstances it appears to me that the accused lacks the necessary insight to understand that he was, and no doubt still is, suffering from a mental illness. True it is that he can, as he did in his record of interview, describe the circumstances surrounding his father's death although that version is very much affected by his delusional beliefs. In my view however, his condition deprives him of the capacity to give instructions concerning his mental state at the time of the offence. Moreover, if he lacks the insight to appreciate that the "defence" of mental illness is available to him, then it is axiomatic that he does not have sufficient capacity "to be able to decide what defence he will rely upon and to make his defence" or perhaps even what plea he should enter. Order 42 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. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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