R v James [2012] NSWSC 1268

Supreme Court New South Wales

Medium Neutral Citation: R v James [2012] NSWSC 1268 Hearing dates: 19 October 2012 Decision date: 19 October 2012 Jurisdiction: Common Law - Criminal Before: Button J Decision: 1. I find the accused, Anthony Mark James, fit to be tried. 2. Proceedings are adjourned to the Arraignments List in the Supreme Court at 10am on Friday 2 November 2012 Catchwords: CRIMINAL LAW - procedure - whether accused fit to be tried - no dispute between expert evidence - accused fit Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 R v Presser [1958] VR 45 Category: Principal judgment Parties: The Crown Anthony Mark James Representation: Counsel: A McCarthy (Crown) N Mikhaiel (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (defendant) File Number(s): 2011/174642

Judgment

Introduction 1This judgment constitutes my reasons for a determination that the accused, who is charged with murder, is fit to stand trial.

Chronology 2This recitation is founded on the evidence tendered before me today, including some matters that were agreed by counsel at the Bar table. 3On 26 May 2011, the body of the deceased was located at a home in Doonside. The accused was arrested on the same day, and charged with murder on the following day, 27 May 2011. 4On 26 November 2011, Dr Susan Pulman, a clinical neuropsychologist whose expertise I readily accept, saw the accused in custody at the request of his solicitor. She had been asked to address a number of issues, including the fitness of the accused to stand trial. She provided a report of 15 December 2011. To summarise her report very succinctly, she described the accused as having suffered a very adverse background; having engaged in very longstanding abuse of illicit drugs and alcohol; and possessing a level of intellectual functioning that fell within "the extremely low range with his result falling at 0.4 of a percentile", including significant difficulties with attention and concentration, information processing, new learning and recent memory, and reading abilities. 5With regard to the test in R v Presser [1958] VR 45 (to which I shall return in a moment), Dr Pulman considered that the accused was able to understand the charge; understood the meaning of guilty and not guilty; had a rudimentary understanding of the right to challenge; understood the adversarial nature of criminal proceedings; demonstrated basic understanding of the various roles of persons in court; and understood in very simple terms what evidence is. 6However, Dr Pulman expressed "considerable concerns" about the ability of the accused to follow the course of proceedings, based on his level of intellectual functioning. She also considered that his heightened anxiety was likely to further impede that ability. She did not at that stage express a firm opinion as to whether or not the accused was fit to stand trial. 7In a brief supplementary report that must be of 5 April 2012, Dr Pulman reported having seen the accused again on 28 February 2012 for the purpose of further psychological assessment. In that report, she expressed the opinion that, on the balance of probabilities, the accused was unfit to stand trial. However, she went on to say "should his anxiety ameliorate considerably within the next 12 months there remains the possibility that his cognitive function will improve and accordingly he may become fit to stand trial." 8The issue of the fitness of the accused to stand trial was raised formally in this Court, at the latest, on the arraignment of the accused on 1 June 2012. The issue was raised by counsel for the accused. That occurred after she had engaged in a number of conferences with the accused that gave rise to concern on her part and the part of her instructing solicitor as to whether or not the accused was fit to stand trial. 9On 2 August 2012, Dr Stephen Allnutt, forensic psychiatrist, provided a report with regard to the fitness of the accused to stand trial at the request of the Crown. He had evaluated the accused in his offices on 29 May 2012. Again, I accept the expertise and experience of Dr Allnutt without reservation. 10Summarising that report, again with great succinctness, Dr Allnutt accepted the level of intellectual functioning discerned by Dr Pulman. He also recorded that the accused had told him that he would sometimes hear "the voice of Satan" both inside and outside his head, but Dr Allnutt was more inclined to regard such phenomena as arising from the underlying personality structure and anxiety disorder of the accused, rather than concluding that they were auditory hallucinations. 11Dr Allnutt recorded that the accused was suffering from a significant problem with anxiety, for which he had been prescribed medication. 12In short, Dr Allnutt found that "his [f]unctioning in my view is significantly impaired secondary to his multiple social and psychological problems." 13Dr Allnutt considered the requirements of the test in R v Presser, and generally found that the accused fulfilled those requirements. In short, Dr Allnutt was of the opinion that, although the accused had the cognitive ability to engage in the trial process, including providing instructions to his solicitor, it was in truth the underlying anxiety disorder that raised the issue of unfitness to stand trial. 14Dr Allnutt was of the opinion that the fitness issue was "marginal" based on the assessment at that time, but that it was likely that with support and exposure to the trial process the accused would, on balance, be fit to stand trial. 15Finally, Dr Allnutt suggested that any trial court might wish to take frequent breaks during a trial, and also ensure that the accused would have regular support available to him during the trial. 16On 11 October 2012, Dr Pulman provided a further report to the solicitor for the accused. By that time she has seen the accused again, on 12 September 2012, and had also read the report of Dr Allnutt. 17In short, Dr Pulman considered that the presentation of the accused had markedly improved since the two occasions when she had seen him some months before. Despite the continuing presence of an anxiety disorder and his continuing cognitive issues, Dr Pulman noted that the engagement of the accused in the interview process was increased, and that his responses demonstrated a capacity to comprehend questions, and to reason appropriately when he wished to do so. 18Dr Pulman also engaged in further questioning of the accused with regard to the test in R v Presser, up until the point when the accused indicated that he had had enough. 19Dr Pulman concluded her final report by expressing her opinion that on the balance of probabilities the accused is fit to stand trial. She expressed the opinion that his fitness is "based on the constant availability of a support person during the trial and the provision of frequent breaks to enable Mr James sufficient time to process court proceedings".