R v McKellar [2013] NSWSC 896

Supreme Court New South Wales

Medium Neutral Citation: R v McKellar [2013] NSWSC 896 Hearing dates: 2 July 2013 Decision date: 05 July 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Accused unfit to be tried. Matter referred to the Mental Health Review Tribunal. The accused is remanded in custody until the determination of the Tribunal has been given effect to. Catchwords: CRIMINAL LAW - fitness to plead - accused unfit to stand trial - where accused previously found fit to stand trial - assumption that accused would be legally represented - refusal to engage with legal representatives - malingering - limited cognitive skills - illiteracy - mental illness - complex trial evidence Legislation Cited: Mental Health (Forensic Provisions) Act 1900 (NSW) Cases Cited: R v McKellar [2012] NSWSC 1567 Category: Principal judgment Parties: Regina Shane Thomas McKellar Representation: Counsel: Mr P Barnett SC (Crown) Ms C Davenport SC (Accused) Solicitors: Solicitor for Public Prosecutions Blair Criminal Lawyers File Number(s): 2011/180041 2011/167627

Judgment 1The accused, Shane Thomas McKellar, has been charged with the murder of Mr Bruce Wentworth Delany at Bourke on 21 May 2011, the armed robbery with the infliction of serious bodily harm upon the same victim on the same day, and possessing the proceeds of crime. For the second time, a question has been raised concerning the accused's fitness to be tried. 2He was found fit to be tried following an inquiry before Latham J late last year: R v McKellar [2012] NSWSC 1567. Her Honour provided a summary of the Crown case (at [2]) and of the principles which apply to the determination of a question of fitness to be tried (at [3]-[4]). It is unnecessary that I repeat those matters.