Supreme Court New South Wales Medium Neutral Citation: R v Naden [2013] NSWSC 435 Hearing dates: 22 March 2013 Decision date: 22 March 2013 Before: Price J Decision: Inquiry into accused's fitness to stand trial no longer necessary. Catchwords: CRIMINAL LAW - procedure - whether fitness inquiry required Legislation Cited: Mental Health (Forensic Provisions) Act 1990 s 8 Category: Procedural and other rulings Parties: Crown Malcolm John Naden Representation: Counsel: Mr M Tedeschi QC (Crown) Mr M Ierace SC (Accused) Solicitors: Ms K Nightingale (Director of Public Prosecutions) Mr A Wright (Legal Aid Commission) File Number(s): 2012/00091385 2012/00091612 Judgment 1HIS HONOUR: I have had the opportunity of reading the psychiatrists' reports as they were emailed to me with the consent of the parties in chambers. 2Section 8 of the Mental Health (Forensic Provisions) Act 1990 is as follows. "1. If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. 2. The Court may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted." 3The question of the accused's unfitness to be tried for the offences of which he has been charged was raised before Latham J on 1 February 2013. Her Honour set the matter down for a fitness hearing on 26 and 27 March 2013. The accused has not been arraigned. 4The accused's legal representatives raised the question of his unfitness to be tried in the light of Dr Bruce Westmore's report dated 10 October 2012. Dr Westmore, a forensic psychiatrist, had re-examined the accused on 6 October 2012. Dr Westmore concluded that "based on his current history, [he did] not believe that Mr Naden can at this time be considered fit to be tried" (ex 1 8/10/12 p 5). 5Professor David Greenberg conducted a psychiatric assessment of the accused on 13 and 19 January 2013 and 2 February 2013 at the request of the Director of Public Prosecutions. In a report dated 4 February 2013, Professor Greenberg expressed the opinion "that on balance, Mr Naden is currently fit to plea and stand trial" (ex A p 13). 6Dr Westmore re-examined the accused on 22 February 2013. In a report dated 25 February 2013, Dr Westmore expressed the following opinion: "On balance, I think that Mr Naden is now fit to be tried, in that it is not his Depressive Illness which is the primary cause behind his wish to plead guilty to all the allegations against him" (ex 1 25/02/13 p 6). 7In his earlier report, Dr Westmore expressed the concern that the accused's "current plea seems to be greatly affected by his ongoing psychiatric illness" (ex 1 8/10/12 p 5). 8Mr Ierace SC told the Court last Friday that there was no longer a question of the accused's unfitness to be tried and the fitness hearing dates were vacated. 9However, s 8(2) of the Mental Health (Forensic Provisions) Act obliges the Court to determine that there is no longer any need for an inquiry into the accused's unfitness to be tried. 10Dr Westmore and Professor Greenberg are of the opinion that the offender is now fit to be tried. Accordingly, I determine that there is no longer any need for such an inquiry to be conducted. 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: 29 April 2013