Supreme Court New South Wales Medium Neutral Citation: R v John Francis Peterson [2013] NSWSC 1002 Hearing dates: 26 July 2013 Decision date: 26 July 2013 Before: Bellew J Decision: 1.I refer the accused to the Mental Health Review Tribunal pursuant to the provisions of s14 of the Mental Health (Forensic Procedures) Act 1990. 2.I order the accused be remanded in custody until such time as effect is given to any determination made by the Mental Health Tribunal. 3.I direct the Registrar provide, to the Mental Health Review Tribunal, a copy of exhibit A which was tendered in these proceedings and which is before me today, together with a copy of my reasons. Catchwords: CRIMINAL LAW - fitness to stand trial Legislation Cited: Mental Health (Forensic Procedures) Act 1990 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230 The Queen v Presser (1958) VR 45 Category: Sentence Parties: Regina - Crown John Francis Peterson - Accused Representation: L Lungo - Crown C Smith - Accused S Kavanagh Solicitor for Public Prosecutions - Crown Legal Aid NSW - Accused File Number(s): 2012 / 173835 Judgment 1Before the court is an enquiry pursuant to the provisions of the Mental Health (Forensic Procedures) Act 1990, ("the Act") as to the fitness of the accused, John Francis Peterson, to stand trial on a charge that on or about 31st of May 2012, at Lethbridge Park in the State of New South Wales, he did murder Rafik Makaradi. 2Tendered before the court today was an agreed bundle of documents which became exhibit A on the enquiry. That material was provided to me in advance of today's hearing, and accordingly I had the opportunity to read it in its entirety before today. 3I have also read, in their entirety, the helpful submissions provided on behalf of the accused by Mr Smith of counsel who appears today. Counsel for the Crown has indicated he has read those submissions and that he has nothing further to add. The parties approached the matter on the basis that there is no necessity for the cross-examination of any of the medical practitioners who provided reports which are contained in exhibit A. 4Both parties have submitted to me that on the basis of the evidence which has been tendered before me I should make orders, amongst other things, referring the accused to the Mental Health Tribunal pursuant to s14 of the Act. 5I should at this stage record my appreciation to both the Crown and the representatives of the accused for the practical manner in which the matter has been approached. That approach has been an expedient and sensible one, and has saved a great deal of court time. 6Contained within exhibit A is a Crown case statement. I do not propose, for present purposes, to recount the contents of that statement. It forms part of the evidence before me and sets out, in some detail, the circumstances in which the Crown allege that the accused murdered Mr Makaradi. None of that material, of course, has been tested in any way but in any event, the issue for present purposes concerns the fitness of the accused to stand trial. 7Pursuant to s10(2) of the Act, I must not conduct an enquiry into the question of the accused's fitness to be tried for an offence unless the question has been raised in good faith. Having read the material contained in exhibit A, and having read, in particular, the medical evidence contained within that exhibit, I am satisfied that the question of the fitness of the accused to be tried has been raised in good faith. 8Pursuant to s6 of the Act, the issue of the accused's fitness is to be determined on the balance of probabilities. Under s12(3), there is no onus cast on either party in that respect. 9In terms of the principles to be applied in determining the fitness of an accused to stand trial, the seminal authority remains the decision of Smith J in The Queen v Presser (1958) VR 45 where Smith J said (at p 48): "(An accused) needs, I think, to be able to understand what he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him, and he needs to be able to make his defence or answer to the charge. Where he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence, but he must, I think, have sufficient capacity to be able to detail what defence he will rely on and to make his defence and his version of the facts known to the Court and to his counsel, if any." 10That passage has been cited and approved on a number of occasions, including in Kesavarajah v The Queen (1994) 181 CLR 230, where an additional refinement to the principles was added, namely, that in considering the factors referred to in Presser, the court should have regard to the length of the trial, given that the accused's fitness may vary from time to time throughout the trial. 11With those principles in mind, I turn to consider the medical evidence which has been placed before me and which is contained in exhibit A. 12Dr Ilana Hepner, a Clinical Neuropsychologist, provided a report to the accused's solicitor of 14 December 2012. In the course of that report, Dr Hepner (at paragraph 11) considered, by specific reference to each of the criteria set out by Smith J in Presser, the question of the accused's fitness to stand trial. Dr Hepner addressed, in specific terms, each of the criteria before arriving at the following opinion contained in paragraph 21.2: "Mr Peterson is able to understand the charge against him. He demonstrates a basic understanding of the terms 'guilty' and 'not guilty' and the simple understanding of the possible consequences of being found guilty or not guilty. As such, I am of the opinion that he can understand the nature of the charges against him and he has the capacity to plead to a charge. He demonstrates a basic understanding of his right to challenge, however, he does not appear to understand the full legal complications of entering a plea and, in view of his performance on testing, it is uncertain as to whether he would be able to learn and remember this information adequately." 13In succeeding paragraphs Dr Hepner went on to express the view that the accused did not demonstrate an adequate understanding of the nature of the proceedings. She also expressed significant concerns about his ability to follow the course of the proceedings, and concluded that on the basis of her interview with him, the accused did not demonstrate an understanding of any evidence against him. This led Dr Hepner to reach the conclusion that the accused did not understand the substantial effects of that evidence. 14Dr Hepner went on to express the view that although the accused was able to provide an account of his version of events, there were significant concerns regarding his ability to instruct counsel, to make out his defence and to decide the material upon which his defence would rely. This led her to express, further concerns as to the accused's ability to make informed decisions for himself based on all of the relevant information. 15Dr Hepner concluded, having considered each of the individual criteria in Presser, that the accused "did not meet all the standards as identified...to participate in a trial". 16Dr Richard Furst, a Consultant Forensic Psychiatrist, provided a report to the accused's solicitor of 28 February 2013. For the purposes of providing his report, and aside from his interview with the accused, Dr Furst was provided with a copy of the brief of evidence against the accused, together with the report of Dr Hepner to which I have previously referred. 17At page 7 of his report, Dr Furst addressed the issue of the accused's fitness. Unlike Dr Hepner, Dr Furst did not separately address each of the individual criteria in Presser. However having read his report, I am satisfied that although such criteria were not addressed separately as Dr Hepner did, each was ultimately considered by Dr Furst. In considering those criteria, Dr Furst observed, amongst other things, that the accused did not know what it meant to enter a plea, and did not understand what "evidence" was. 18Ultimately, at page 8 of his report, Dr Furst expressed the opinion that the accused was not fit to be tried and was not fit to plead. He also expressed the view that given his intellectual disability and given that such disability was an enduring condition, the accused was unlikely to become fit over the next 12 months. 19Finally, Dr Stephen Allnutt, Forensic Psychiatrist, interviewed the accused on 22 March 2013 at the request of the Director of Public Prosecutions. Dr Allnutt provided a report to the Crown dated 3 May 2013, which forms part of exhibit A. 20Dr Allnutt addressed the question of the accused's fitness commencing at page 5 of his report. In Dr Allnutt's opinion the accused had the capacity to understand what he was charged with, however he expressed the view that the accused was compromised in his capacity to understand the general nature of the proceedings. 21Dr Allnutt considered that the accused had the capacity to understand the effect of any evidence although, like Dr Furst, he observed that the accused had told him that he did not know what the term "evidence" meant. Dr Allnutt concluded the accused had the capacity to plead to the charge, but that he was compromised in his capacity to tell the court what his defence was. He observed, amongst other things, that obtaining information from the accused was difficult. 22Dr Allnutt considered that with the assistance of counsel, the accused could "probably" exercise his right of challenge and could "probably" decide on what defence he wished to rely upon. However, he went on to express the view that the accused was compromised in his capacity to give instructions to his counsel at trial. He observed, amongst other things, that the accused had comprehension difficulties, difficulties with hearing, and problems with communication. This led Dr Allnutt to express the view that there was a real risk that the accused would not be able to adequately follow the proceedings. 23Ultimately, and whilst acknowledging that the question of the accused's fitness was a difficult one, Dr Allnutt expressed the view that if the trial were uncomplicated and brief (i.e. extending over a period of one or two days) then with assistance and frequent breaks the accused might be regarded as fit to stand trial. This opinion was predicated on the assumption that during the course of any such trial it was regularly and satisfactorily clarified with the accused that he had understood events. 24However, Dr Allnutt proceeded to express the following view: "But in a complicated and/or lengthy trial, on balance, while I believe that on first impression he appears more impaired than he actually is, he would be regarded by me as unfit to stand trial and, given that he has an intellectual disability that will not recover over the next 12 months, it is unlikely that he would become fit in the next 12 months." 25Dr Allnutt approached the formulation of his opinion in a manner similar to that of Dr Furst, in that he did not address the criteria in Presser individually. However having read his report, I am satisfied that he addressed those criteria to an adequate degree. 26It might be said that there was some degree of equivocation, at least in some respects, in Dr Allnutt's opinion. Ultimately however, he expressed the view that the accused was unfit to stand trial. It might also be noted that to the extent that Dr Allnutt considered the accused may be fit this was based on the proposition that the trial would be a brief one, and would extend over a period of only one or two days. While I have not been provided with the Brief of Evidence upon which the Crown relied, I have read the Crown case statement. Having done so, it appears to me to be highly unlikely that a trial of this nature could ever be completed over a period of one or two days. Such a submission was made on behalf of the accused by his counsel and it was not one with which the Crown took any issue. 27It follows that having regard to the opinions of Dr Hepner, Dr Furst and Dr Allnutt, and bearing in mind that their opinions are both consistent and unchallenged, I am satisfied on the balance of probabilities that the accused is unfit to stand trial. 28In those circumstances, I make the following orders: (1)I refer the accused to the Mental Health Review Tribunal pursuant to the provisions of s14 of the Mental Health (Forensic Procedures) Act 1990. (2)I order the accused be remanded in custody until such time as effect is given to any determination made by the Mental Health Tribunal. (3)I direct the Registrar provide, to the Mental Health Review Tribunal, a copy of exhibit A which was tendered in these proceedings and which is before me today, together with a copy of my reasons. ********** 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 July 2013