R v Thomas [2014] NSWSC 1181

Supreme Court New South Wales

Medium Neutral Citation: R v Thomas [2014] NSWSC 1181 Hearing dates: 25 August 2014 Decision date: 29 August 2014 Before: Bellew J Decision: (1) I find the accused unfit to stand trial; (2) I refer the accused to the Mental Health Review Tribunal pursuant to the provisions of s. 14 of the Mental Health (Forensic Provisions) Act 1990; (3) I order that the accused be remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal. (4) I direct that the Registrar provide to the Mental Health Review Tribunal a copy of Exhibits A to E, along with Exhibits 1 and 2 which were before me in these proceedings, together with a copy of these reasons. Catchwords: CRIMINAL LAW - Whether accused fit to stand trial - Necessity to resolve competing expert opinions - Accused not fit Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R (1994) 181 CLR 231 R v Presser (1958) VR 45 Category: Principal judgment Parties: Regina - Crown Michael Thomas - Accused Representation: Counsel: Mr K McKay - Crown Mr M Ierace SC - Accused Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Crown S O'Connor, Legal Aid New South Wales - Accused File Number(s): 2013/30962 Publication restriction: Nil

Judgment

INTRODUCTION 1The Crown seeks to present an indictment against Michael Thomas ("the accused") alleging that on 31 January 2013, at Emu Plains in the State of New South Wales, he did unlawfully kill Susan Thomas ("the deceased"). The indictment alleges, in the alternative, that on the same date the accused recklessly caused grievous bodily harm to the deceased. 2The question of the accused's unfitness to be tried for those offences was raised prior to any arraignment on that indictment. In these circumstances, having regard to the provisions of s. 8 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") an enquiry has been conducted for the purposes of determining the issue of the accused's unfitness. 3Having regard to the provisions of s. 10(2) of the Act, I record the fact that I am satisfied that the issue of the accused's unfitness has been raised in good faith. Pursuant to s. 11 of the Act that issue is to be determined by a Judge alone on the balance of probabilities. There is no onus of proof on either party. 4The following material was tendered by the Crown on the hearing: (i)a report of Dr Gary Banks, Clinical Forensic Psychologist dated 1 July 2014 (excluding that part appearing under the heading "comment" at pp 4-5), along with Dr Banks' Curriculum Vitae (Ex A); (ii)a copy of the Crown Case Statement (Ex B); (iii)a copy of the transcript of an ERISP conducted with the accused on 31 January 2013 (Ex C); (iv)a DVD of that ERISP (Ex D); and (v)the results of testing administered by Dr Banks in his assessment of the accused (Ex E). 5Senior counsel for the accused tendered two reports of Dr Susan Pulman, Forensic Psychologist, dated 19 November 2013 and 22 August 2014, which were marked Exhibits 1 and 2 respectively. 6In addition, the accused's father was called to give oral evidence regarding aspects of the history recorded by Dr Banks in his report.