Supreme Court New South Wales Medium Neutral Citation: R v Bailey [2011] NSWSC 1228 Hearing dates: 11/10/2011 Decision date: 11 October 2011 Before: Garling J Decision: 1. I find the accused, Sean Hai Bailey, is unfit to be tried. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3. In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand Mr Bailey in custody until the determination of the Mental Health Review Tribunal, pursuant to s 16 of that Act. 4. I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within seven days: (a) a copy of this finding and my reasons; (b) a copy of the orders which I have made; (c) a copy of the transcript of these proceedings; (d) a copy of the psychiatric reports of Professor Greenburg which are exhibits in these proceedings; and (e) a copy of the Crown Case Statement. Catchwords: CRIMINAL LAW - Accused charged with murder - Whether fit to be tried - Undisputed medical evidence that accused unfit to be tried - Chronic Schizoaffective Disorder - Referred to Mental Health Review Tribunal - No issue of principle Legislation Cited: Crimes Act 1900 Mental Health Act (1990) (repealed) Mental Health (Forensic Provisions) Act 1990 Cases Cited: Eastman v R (2000) 203 CLR 1 Kesavarajah v R (1994) 181 CLR 230 R v Presser (1958) VR 45 R v Robinson [2008] NSWCCA 64 Category: Principal judgment Parties: The Crown Sean Hai Bailey File Number(s): 2010/277494 EX TEMPORE Judgment 1Sean Hai Bailey is charged with one count of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) in relation to the death of Allan Thomas Hall on 20 August 2010. 2On 9 June 2011, Mr Bailey was committed to stand trial in the Supreme Court of NSW by the Local Court of NSW at Port Macquarie. 3On 2 September 2011, Justice Latham determined, pursuant to s 8 of the Mental Health (Forensic Provisions) Act 1990 that an inquiry should be conducted as to the question of Mr Bailey's unfitness to be tried for the offence of murder. 4Accordingly, I have today, consequent upon the arraignment of Mr Bailey without a plea being taken, conducted an inquiry pursuant to the provisions of Part 2 of the Mental Health (Forensic Provisions) Act 1990, as to whether Mr Bailey is unfit to be tried for the offence. 5At this inquiry the Crown has been represented, and as well Ms Manuell of Senior Counsel has appeared for Mr Bailey. Principles of Law 6There are a number of principles of law that are relevant to this inquiry. Those principles, which affect the conduct of the inquiry, are these: (a)the question of unfitness is to be determined on the balance of probabilities: s 6 of the Act ; (b)the inquiry is not to be conducted, and was not conducted, in an adversarial manner: s 12(2) of the Act ; (c)there is no onus of proof resting on either the Crown or the accused: s 12(3) of the Act, (d)the principles of law which apply, and the findings of fact relied upon must be included in any determination made by a Judge: s 11(2) of the Act . 7The substantive principles of law as to whether a person is or is not fit to stand trial are of longstanding and can be found in the decision of R v Presser (1958) VR 45 at 48, per Smith J, and in Kesavarajah v R (1994) 181 CLR 230 at 246 per Mason CJ, Toohey and Gaudron JJ. 8It is appropriate to encapsulate those principles so that the findings of fact in my determination are more readily understood. 9The consideration of these principles must take place in the context of the length and complexity of the trial proceedings. The criteria for fitness to be tried, which are minimum standards, are that an accused such as Mr Bailey must be able to: (a)understand with what he has been charged; (b)enter a plea to the charge; (c)exercise his right to challenge any juror; (d)understand, generally, the nature of the proceedings so as to understand what is going on in court in a general sense, namely that it is an inquiry as to whether he did what he is charged with; (e)follow the course of the proceedings so as to understand what is happening without the necessity to understand all of the various aspects of court formality; (f)understand the substantial effect of any evidence which may be given against him, in support of the prosecution; and (g)give his counsel instructions, including his version of the facts, which are sufficient to make his defence and answer the charge. See Presser at 48, Kesavarajah at 246 and R v Robinson [2008] NSWCCA 64 at [65]-[66]. 10The material available to me on this inquiry consists of: (a)an agreement as to the facts leading up to and surrounding the death of Mr Hall which are to be found in the Crown Case Statement. I note that that statement relates and is agreed to only for purposes of these proceedings; and (b)the expert evidence of Professor David Greenberg, an expert forensic psychiatrist. Crown Case Statement 11In the weeks before Mr Hall was killed the accused was staying with his brother in Sydney. During this period his prescribed medication was changed on a number of occasions. 12On Friday, 13 August 2010, and over the following weekend, the accused's mother and brother observed that he was exhibiting frank signs of mental illness. During the following week, the accused received medication by injection at the Royal North Shore Hospital in Sydney. The accused's mental health did not noticeably improve. 13On Friday, 20 August 2010, Mr Bailey's mother and sister drove with him from Sydney to Port Macquarie in order to have him assessed at the Mental Health Unit of the Port Macquarie Hospital. However, by the time they arrived in Port Macquarie that unit was closed, but an on-call Crisis Team was apparently available. 14On the evening of Friday, 20 August 2010, at about 7.20pm, the accused attended the Laurieton Hotel by himself. The deceased, Mr Allan Hall, was socialising with friends at the hotel. The deceased and the accused were known to each other but were not in any way friends. 15The accused approached the deceased and his friends. The accused yelled at the deceased, making an entirely unfounded allegation against him. The deceased rejected the allegation. It was then repeated. 16Having made and repeated the allegation, the accused then punched the deceased once or twice in the area of the right temple. The deceased dropped to his knees and slumped to the floor. 17Upon arrival of the NSW Ambulance officers at the scene a short time later it was determined that Mr Hall was dead. 18The accused was arrested and taken to the Port Macquarie Police Station. A formal recorded interview took place with the accused in the presence of his father. Mental Illness Defence 19The Crown case statement makes it plain that the accused, who was 37 years of age at the time of the offence, has suffered from chronic mental illness since he was in his mid twenties. 20From at least August 1998, the accused has had a number of hospital admissions because of this mental illness. At that time in 1998 he was scheduled under the Mental Health Act (1990) because he had no insight into his, then, psychotic condition. 21He has been the subject of Community Treatment Orders on a number of occasions because of his failure to regularly take anti-psychotic medication. 22Professor Greenberg has examined Mr Bailey on four occasions: 30 March 2011, 1 August 2011, 12 August 2011 and 6 October 2011. He has had access to extensive documentation about Mr Bailey's psychiatric history. 23Professor Greenberg, having considered that material, the results of his clinical examinations and the various relevant documents from the Police brief, including the Crown Case Statement and the record of the formal police questioning which occurred on the evening of Mr Bailey's arrest, has expressed his expert opinion that he thinks it likely that Mr Bailey has a mental illness defence to the substantive charge of murder. 24Professor Greenberg expressed this view: "Mr Bailey likely did not understand the nature and quality of his actions and did not understand the wrongfulness of his action both in a legal sense and a moral sense at that time period. I am of the opinion that he had a defect of reason flowing from his mental illness namely Schizoaffective Disorder. At the time he was suffering from paranoid delusional beliefs and likely was hallucinating at that time period." 25It is not for me in this Inquiry to form any final conclusion about the guilt of Mr Bailey with respect to the offence with which he is charged and I do not do so. But if there is available to Mr Bailey at a trial a possible defence of mental illness as Professor Greenberg suggests, then Mr Bailey's capacity to understand the availability of that defence and to propound it is a relevant matter to take into account when considering any question of Mr Bailey's fitness to stand trial. Expert Opinion of Professor Greenberg 26Professor Greenberg has expressed his expert opinion as to whether Mr Bailey is fit to stand trial in a lengthy, detailed and thorough report dated 26 August 2011. That report, and Mr Bailey's condition, has recently been reviewed on 6 October 2011, and Professor Greenberg adheres to the views which he expressed in his report of 26 August 2011. 27The Crown submits that the Court ought accept the expert opinions expressed by Professor Greenberg, who is a most experienced forensic psychiatrist. 28Professor Greenberg noted the following features when, in August 2011, he conducted a mental state examination: Mr Bailey: (a) was irritable and verbally hostile in his manner; (b) ruminated about psychiatric medication and the mental health services; (c) became agitated and potentially volatile in his manner; (d) expressed unrealistic thoughts about the future; (e) was clearly labile in his mood; (f) clearly trivialised his current charge and expressed the view that he would be released in two to three years time; (g) displayed grossly impaired insight with regard to his mental state and his need for psychiatric medication. 29It does not need emphasis that each of these features are signs and symptoms of Mr Bailey's mental illness. I accept that he was displaying these signs and symptoms when seen by Professor Greenberg. 30Professor Greenberg considered the criteria for fitness to stand trial as described in Presser . He formed these conclusions about Mr Bailey: (a) he understands the nature of the charges he is facing and the pleas available to him in the sense of guilty or not guilty; (b) he has the capacity to exercise his right to challenge jurors, perhaps with the benefit of assistance and an explanation; (c) he generally understands the nature and course of the proceedings which he is facing, although he did not clearly understand the details of the functions of various officers of the Court. None of these conclusions would result in a finding that Mr Bailey was unfit to stand trial. 31However, there were a number of findings of Professor Greenberg which do bear significantly on the question of Mr Bailey's fitness to stand trial. The Professor formed these conclusions about Mr Bailey: (a) he would have difficulty appreciating the substantial effect of evidence given in court because of the lability of his current mood and his current grandiose delusions; (b) he trivialised and minimised the charges and hence appeared to not understand the full consequences should he be found guilty of the charge which he faces; (c) he did not have the capacity to decide on what defence he should make because he was unable to understand and make any reasoned decision about the potential defence of mental illness. That was because of his grossly impaired insight into his own mental state; (d) he would have difficulty giving evidence because of his lability of mood and current acute mental illness. He would also have some difficulty in communicating his version of the facts because of his poverty of thought and irritability of mood. 32Professor Greenberg concluded that Mr Bailey was, on the balance of probabilities, currently unfit to stand trial at the present time. 33I accept these conclusions as to the factual status of Mr Bailey's mental state. They are facts, which I find for the purpose of making this determination. Submissions 34The Crown submits that the Court would accept the evidence of Professor Greenberg and that it accordingly would be satisfied that Mr Bailey's current state falls substantially below a number of the minimum criteria that the law requires, before a person stands trial. The Crown submits that the Court would find that at present Mr Bailey is not fit to stand trial. 35The Crown submits that the Court would note Professor Greenberg's view that with, what is inevitably a lengthy and gradual recovery process from his current mental state, and with a review of his current treatment regime, Mr Bailey may become fit to stand trial in the next 12 month period. 36Ms Manuell, Senior Counsel for Mr Bailey, did not make any submissions to the Court at all. This was in accordance with her instructions. Discernment 37The common law guarantees an accused person a fair trial according to law. That is a fundamental precept. One aspect of that guarantee is that a criminal trial cannot fairly proceed if an accused is not fit to plead and stand trial, see Eastman v R (2000) 203 CLR 1 at [64] per Gaudron J. 38I do not overlook the serious effects upon an accused of a finding of unfitness to stand trial, which has, as a usual consequence, indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial rather than suffer such incarceration, see Eastman at [24] per Gleeson CJ, and Kesavarajah at 249 per Deane and Dawson JJ. 39In this case, however, the evidence which encompasses the lengthy history of Mr Bailey's mental illness, and a careful review of his current mental status, is abundantly sufficient to satisfy me on the balance of probabilities that Mr Bailey is presently unfit to be tried for the offence of murder of Mr Hall on 20 August 2010. 40In those circumstances I make the following orders. 1.I find the accused, Sean Hai Bailey, is unfit to be tried. 2.In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3.In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand Mr Bailey in custody until the determination of the Mental Health Review Tribunal, pursuant to s 16 of that Act . 4.I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within seven days: (a)a copy of this finding and my reasons; (b)a copy of the orders which I have made; (c)a copy of the transcript of these proceedings; (d)a copy of the psychiatric reports of Professor Greenburg which are exhibits in these proceedings; and (e)a copy of the Crown Case Statement. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2011