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. The accused is unrepresented 3I should explain how it is that a question of fitness to be tried has been raised again. 4Sometime after the fitness hearing before Latham J had concluded, the accused withdrew his instructions from Mr Bill Walsh of counsel and Mr Rolfe, solicitor. 5Legal Aid NSW then agreed to assign the matter to another solicitor and barrister. Mr Boyden, solicitor, and Mr Luke Brasch of counsel were engaged. 6A trial date was set by Latham J on 1 February 2013. The trial was due to commence at Orange on 1 July 2013. 7In the week commencing 3 June 2013, the Crown Prosecutor received notification that the accused had withdrawn instructions from Mr Boyden and Mr Brasch. 8The matter came before me on 14 June 2013. By that stage, Ms Davenport SC had been briefed to appear, the matter having again been assigned by Legal Aid NSW, this time to Blair Criminal Lawyers. Ms Davenport had only just received the brief and had not met the accused prior to 14 June. She saw him in the cells after the court had risen (contrary to what the accused later claimed). The trial date of 1 July 2013 was confirmed. 9Mr Blair and one of his employed solicitors, Mr Mallinson, went to see the accused on Sunday 23 June 2013. I have been told that they spent some two and half hours with him, during the course of which they explored the Presser criteria and satisfied themselves that the accused remained fit to be tried. 10On Thursday 27 June, Ms Davenport and Mr Blair went to the gaol for a conference. The accused indicated that he was not happy with Ms Davenport appearing for him and he refused to provide Mr Blair with any instructions. He walked out of the conference. On the basis that Mr McKellar was not prepared to provide any instructions, Ms Davenport and Mr Blair felt that they had no option but to seek to withdraw. 11Because of this development, the matter was listed before me in Sydney at midday on Friday 28 June. Ms Davenport appeared, with Mr Mallinson, on an amicus curiae basis and confirmed what had occurred since 14 June. 12When I came on the bench last Friday, I was informed by Corrective Services staff that the accused was refusing to come into court. A short time later, however, he did come into court. He was quite vocal and hostile. He confirmed his dissatisfaction with Ms Davenport and Mr Mallinson representing him and indicated a preference for Mr Blair to appear. That is inconsistent with this attitude to Mr Blair the previous day. He was informed that his trial would be proceeding at Orange this week. After some further discussion he walked out of court and thereafter refused to return. 13When the matter was first mentioned before me on Monday of this week at Orange, the accused appeared unrepresented. He had been spoken to earlier in the cells by Mr Arjun Chhabra, a solicitor from the Aboriginal Legal Service ("ALS"). It was hoped that he would be able to get through to the accused the importance of him having legal representation. But, Mr Chhabra's discussions with the accused were unfruitful. He returned to speak with the accused on Tuesday morning but with much the same result. 14When the matter was first before me on Monday, I allowed the accused considerable latitude to ventilate whatever it was that concerned him. He spoke at some length. Most of it appeared, at face value at least, irrelevant. Eventually he seemed to be prepared to reconsider his position and indicated that he was prepared to re-engage with Ms Davenport and Mr Mallinson who, I was informed, were willing to come back into the matter. They were available to attend upon the accused at Bathurst gaol on Tuesday for a conference with a view to potentially commencing with the trial on Wednesday. 15That is where the matter stood when I adjourned on Monday morning. Later in the day it was indicated by the Crown Prosecutor the better course would be for the accused to be brought to court at Orange so that a conference could proceed in the cells for as long as was required. 16The accused was brought back up to court to be informed of this. He indicated that he would not be coming back to Orange. He then proceeded to deliver a tirade of offensive abuse directed at me and at others in the courtroom at a high volume and in an aggressive tone. 17Ms Davenport and Mr Mallinson travelled to Orange on Tuesday and saw the accused in the cells around the middle of the day. He refused to speak to them. 18So, the position is that the accused is unrepresented and there is no present likelihood of that situation changing. I think that it is safe to assume that he cannot afford to pay for representation himself. Legal Aid has refused to fund any further assignment of his case, and that is understandable, given that he has withdrawn instructions from two previous pairs of lawyers and has refused to provide instructions to the latest pair. There is a possibility that the ALS may be able to act for him but that is not assured. But in any event, the accused has refused to speak to the solicitor sent to Orange on their behalf. A question of fitness to be tried 19The Crown Prosecutor indicated on Tuesday afternoon that there appeared to be, once again, a question as to the accused's fitness to be tried. Pursuant to s 8(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I determined that an inquiry should be conducted and it was conducted forthwith. Ms Davenport and Mr Mallinson were retained by Legal Aid to appear for the accused. 20The question of fitness has arisen, not because of any known change in the mental capacity of the accused, but because it seemed to be the case that the previous finding of fitness was made upon an assumption that he was to be represented at his trial. A different view might be taken if that were not the case. Evidence 21The Crown tendered, without objection, a folder of reports by various experts which was Exhibit A in the proceedings before Latham J. Also tendered was the transcript of those proceedings as well as an email from Dr Lisa Brown, forensic psychiatrist, sent to the Crown on 2 July 2013 at 3.45pm. 22Counsel confined their submissions to referring me to specific passages in some of the reports and the evidence given before Latham J. Although the evidence is summarised usefully in her Honour's judgment, I have nonetheless read all of the material. I will make brief reference to some of it. 23Dr Stephen Allnutt, forensic psychiatrist, indicated in his report of 23 July 2012 that the accused suffers from schizophrenia, characterised by auditory hallucinations, ideas of reference and persecutory delusions. He felt that psychosis interfered with the quality of his interaction with others and that he suffered from active symptoms of a chronic psychotic disorder such as schizophrenia or schizoaffective disorder that impact upon his capacity to engage. 24Dr Allnutt thought the accused probably had an underlying cognitive capacity to understand court processes in general but that his auditory hallucinations are of a nature and severity that they impact on his capacity to engage in assessment. Dr Allnutt thought that this would pose the same problem for his legal representatives. He believed that the accused was unfit to stand trial because he would be unable to communicate qualitatively with his legal representatives, to conduct a defence or to follow proceedings. Dr Allnutt concluded that report by indicating that the opinions he had expressed were preliminary and that he would like the opportunity to review the records of Justice Health to see the views of other clinicians before arriving at a final conclusion. 25I note that Dr Allnutt has recorded that the accused is unable to read or write. The doctor was of the view that there was at least a mild intellectual impairment. 26By the time he came to give evidence before Latham J, Dr Allnutt had been given the opportunity to read the Justice Health records. He maintained his view that the accused was unfit to stand trial. He accepted that there was likely a degree of malingering or exaggerating of symptoms. He accepted that it was possible that, if the Court concluded that the accused was not in fact experiencing psychotic symptoms, or was exaggerating their extent, his motive might be to avoid a trial. 27He also accepted that "in a short trial that's not complex, you might regard him as fit"; but he immediately added, "in a longer trial [that is, anything over a week] with greater complexity, a greater degree of engagement is required and concentration, there's cause for concern here". 28There was an exchange with the Crown Prosecutor about the length and complexity of the prospective trial. It appeared during the course of that exchange that the trial would be of no more than four weeks duration. It would involve about a dozen civilian witnesses who observed various things. It would also include the usual kind of crime scene and forensic pathology evidence as well as DNA evidence. 29Dr Gary Banks, a consultant clinical psychologist, provided a report and gave evidence before Latham J. The view he formed upon clinical assessment was strengthened by material he subsequently read in contemporaneous Justice Health records. The accused had been held at the Long Bay Prison Hospital for the previous six weeks and Dr Banks said: I think there is ample evidence across that 6 week duration of the nursing notes recorded that each of the Presser criteria would be met quite clearly and consistently over time. 30A report by Dr Lisa Brown, dated 22 August 2012, was before Latham J. She expressed the view that "malingering of memory problems, in the context of him facing a very serious charge, is suggested by Mr McKellar's current presentation". She noted that there were comments to this effect made by Woods DCJ when sentencing the accused in 2007. His Honour referred to the accused being of "below average intelligence but not as severely intellectually disabled as he wished to portray". Dr Brown also referred to the acknowledgement by Dr Allnutt that there may be a degree of exaggeration in the accused's presentation. 31Dr Brown's report does not contain an explicit and unequivocal expression of opinion that the accused was fit to be tried but she confirmed in her oral evidence before Latham J that this was her belief. She said in the report that "allowing him brief periods of time out from the courtroom setting would probably assist him during the court process". A variety of examples were given in the course of Dr Brown's evidence of the accused having a memory capacity that exceeded that which he sought to portray. 32There is a particularly significant passage in the evidence of Dr Brown: Q. Doctor, given the anticipate length of such a trial of four to six weeks, do you think that considering Mr McKellar, the accused would be able to give his legal advisers proper instructions over that period of time? A. Yes. As his mental state is currently, as I mentioned he is probably at the best he's been for some time. He's not going to be as affected by side effects because he's on reduced medication so he's less likely to be restless and better able to concentrate. But because of his marked cognitive impairment, which has been documented, he may need additional assistance from counsel to go over information, to allow him additional time, and to keep in mind that he does require some additional support and information to best cooperate. Q. Would you agree he has a degree of cognitive impairment? A. It's marked and it's what a psychiatrist would deem as borderline to marked. So it's in the mildest category of intellectual disability. Q. With that in mind, would he have difficulty in following the proceedings in court? A. It's possible he could particularly as it relates to more complex material. In that type of situation he would need explanation and going over of information. (27.11.12 at T12) (Emphasis added) 33Dr Brown had previous involvement with the accused. She provided a report in 2007 on his fitness to be tried in criminal proceedings then pending in the District Court. Her opinion then included: Based on the examination of Mr McKellar, it is my opinion that he is currently fit to plead, if certain provisions are made for him to have a support person available and which would help to offset some of the intellectual difficulties which may affect his concentration and capacity to understand the trial process in an adequate manner. ... Whilst Mr McKellar is likely to be at the lower end of the spectrum of fitness based on his intellectual difficulties the assistance of either his legal counsel and/or an Aboriginal support worker would be of particular benefit in helping him to follow the court process at the time. Without such support, Mr McKellar may possibly fall below the level required to adequately understand and involve himself in the trial process. 34The reports and the evidence that were before Latham J last year lead me to conclude that a finding that the accused is fit to be tried would be dependent upon him having available to him (a) legal representation, and (b) steps taken during the course of a trial to assist him in following the proceedings and understanding the substantial effect of any evidence given against him. This appears to be implicit in her Honour's conclusions. There was competing evidence before her but it seems that each of the experts proceeded upon an assumption that the accused would be legally represented. Her Honour found that the accused was, on the balance of probabilities, fit to be tried. But she said (at [51]): I recognise that he may require additional adjournments to those usually granted to allow his counsel to communicate effectively with him and manage his anxiety around court proceedings. 35Her Honour also recognised a need for the accused to continue to be assessed and medicated, adding (at [53]), "his long-standing history of mental illness strongly suggests that it will wax and wane over time". Determination 36I am unaware of what has transpired, if anything, in terms of assessment and medication since her Honour gave judgment last December, some six and a half months ago. 37Subject to that, however, it is my impression that there is force in the suggestion that the accused has exaggerated his claimed memory deficits in the past. The reports are replete with examples of him claiming an inability to remember things, including what he was charged with. But in the proceedings before me he has indicated in a number of ways that his capacity for memory is quite reasonable. 38It might be a concern that the accused told Dr Allnutt that he could not read or write. However, he spoke to me on 28 June and on 1 July about having filled out forms and how he had photocopies of various papers. On occasions he brought a sheath of papers with him into court; papers which would be of no use to him if he could not read them. 39It is clear that the accused has a mental illness. There is no dispute about that, although questions are raised about the accuracy of his claims about the symptoms. How he is functioning in terms of this illness at the present time, as compared with when he was assessed by the various experts who gave evidence before Latham J, is impossible for me to determine. There is no evidence before me in that respect. 40Dr Allnutt acknowledged that "a reasonable explanation for the accused's behaviour is that he may view his mental illness and his symptoms as a way of avoiding the trial process". Whether this is what is occurring now is difficult to know but it cannot be dismissed. 41Accepting those difficulties, I would nevertheless incline to the view that without legal representation the accused is unfit to be tried. 42It seems that he has the capacity to read, but his skills are likely rudimentary. That raises a question of his ability to comprehend to a sufficient degree the nature of the evidence that the Crown intends to call. 43The accused's intellectual capacity is at a reduced level, but is not as inadequate as he at times has sought to portray. However, there must be a real question about his ability to understand the effect of evidence that will be given in the trial, particularly by experts in the fields of forensic biology and forensic pathology. 44A matter that is difficult to assess because of the malingering aspect reported by the experts is the accused's ability to focus upon relevant issues in his defence. He has sought to tell me of his concerns about some event, or events, which occurred in gaol which he has wanted lawyers to pursue for the purpose of the trial. As best as I can understand, such events have nothing to do with the issues in the trial at all. 45The accused is, at times, quite agitated and occasionally hostile. This highlights another problem with the accused conducting his own defence. It may be that his apparently volatile emotional state might distract him from following and understanding the evidence. 46The matter that I find decisive on the question of the accused's present fitness to be tried is a short email that the Crown Prosecutor received from Dr Brown. It appears that Latham J preferred the evidence of Dr Brown to that of Dr Allnutt; it tipped the scales on the balance of probabilities sufficiently for her Honour to find the accused fit to be tried. But Dr Brown was provided with transcript of the proceedings before me. She advised: I would no longer be prepared to support Mr McKellar as being fit to stand trial if he chooses to represent himself without legal representation. The factors which would affect his capacity to do so would include his limited cognitive skills in dealing with complex materials. In addition, the transcripts reveal that Mr McKellar is currently in a highly aroused emotional state and which impair his ability to reason and consider how to make a defence. His fitness to stand trial is therefore restricted to the situation of him having the assistance of counsel. 47I was also informed by the Crown Prosecutor that Dr Brown had indicated to him that, from her reading of the transcripts, the accused's thought processes appeared to be more disorganised than on the occasions she had seen him last year. 48It is unusual in my experience for a fitness hearing to be conducted on the basis of a contemporaneous opinion of only one expert psychiatrist. However, I am confident that Dr Allnutt would remain of the view, and perhaps be more confident of the view, that he expressed before Latham J that the accused is unfit to be tried. Dr Brown now shares that opinion. 49I am satisfied on the balance of probabilities that the accused is unfit to be tried. This is particularly so in relation to his ability to understand the substantial effect of evidence to be given against him and his ability to make his answer to the charge. Orders 50I find the accused unfit to be tried. In accordance with s 14 Mental Health (Forensic Provisions) Act 1990 (NSW), I refer this matter to the Mental Health Review Tribunal. The accused is remanded in custody until the determination of the Tribunal has been given effect to. I direct the court registry to provide the following documentation to the Tribunal: a copy of this judgment; a copy of the warrant committing the accused to a correctional centre; a transcript of the proceedings before Latham J on 27 November 2012 and Exhibit A in those proceedings; the judgment of Latham J: R v McKellar [2012] NSWSC 1567; a transcript of the proceedings before me on 14 and 28 June 2013 and 1 and 2 July 2013; a copy of Exhibit A in the proceedings before me on 2 July 2013; and a copy of the Crown Case Statement. ********** Amendments 10 July 2013 - Typo in name of deceased Amended paragraphs: 1 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: 10 July 2013