Supreme Court New South Wales Medium Neutral Citation: R v Griffiths [2016] NSWSC 1571 Hearing dates: 7 November 2016 Date of orders: 07 November 2016 Decision date: 07 November 2016 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: 1. I find that the accused, Brendan Troy Griffiths is unfit to be tried for the offence of murder. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"), I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) or the Act, I remand the accused in custody, pending further orders of the Court. 4. I direct the Supreme Court registry to provide the following documents to the Tribunal. (a) a copy of this judgment; (b) a copy of the exhibits tendered to this inquiry; (c) a copy of the Crown Case Statement; (d) a copy of the written submissions of the parties. Catchwords: Criminal law – fitness to be tried – judge alone - Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser (1958) VR 45 Category: Principal judgment Parties: Regina Brendon Griffiths Representation: Counsel: Mr T Thorpe (Crown Mr C Bruce (Amicus) Solicitors: Solicitor for Director of Public Prosecutions Legal Aid (NSW) File Number(s): 2014/300561 Publication restriction: No Judgment 1. On 7 November 2016 a very brief hearing took place as to the accused's fitness to stand trial for the murder of Hoani Shaune Love on 30 September 2014. At the close of the hearing I made the following finding and orders, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"): 1. I find that the accused, Brendan Troy Griffiths is unfit to be tried for the offence of murder. 2. In accordance with s 14 of the Act, I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) or the Act, I remand the accused in custody, pending further orders of the Court. 4. I direct the Supreme Court registry to provide the following documents to the Tribunal. 1. a copy of this judgment; 2. a copy of the exhibits tendered to this inquiry; 3. a copy of the Crown Case Statement; 4. a copy of the written submissions of the parties. 1. I said that I would publish my reasons later. 2. These, then, are my reasons for making those orders. Circumstances of the Killing 1. The accused was 38 years old at the time of the killing, having been born on 24 May 1976. He had been living in a house in Lakes Drive, Tweed Heads for 7 years. The deceased, Mr Love was 10 years older, having been born on 3 February 1966. He originally came from New Zealand, and had lived in Tweed Heads for several years. He had a transient lifestyle with no fixed place of abode. He generally stayed in the area around Chris Cunningham Park in Tweed Heads. 2. The Crown case against the accused is as follows. On the afternoon of Saturday, 27 September, the deceased and two friends were sitting on bench seats on Wharf Street, Tweed Heads. They had recently been ordered to leave an information centre because of their state of intoxication. Shortly after 6.00 o'clock, the accused and a friend stopped at the seat where the deceased and his friends were sitting. They were looking to score some oxycontin. The deceased was apparently staring at the accused, and – on the accused's version – he told the accused to "fuck off". The accused thereupon grabbed the deceased by the head and pushed his thumbs into the deceased's eyes. The others begged him to stop, which he did, and he started to walk away. However, after about 10 to 20 metres he turned back and ran towards the deceased. He elbowed him in the face, causing him to fall to the ground. The witnesses described hearing a "sickening crack" as his head hit the ground. The accused ran across the road and caught a taxi to the vicinity of his home. 3. The authorities were called, and the deceased was taken to the Tweed Heads Hospital. However, his condition subsequently deteriorated, and he was transferred to the Gold Coat University Hospital. He was in a coma, and after all treatment options were exhausted, life support was turned off on 30 September and he died. The cause of death was recorded as blunt force injuries to the head with various fractures to the head and associated haemorrhage in and around the brain. 4. On Monday, 29 September the police spoke to the accused at his home. He denied having anything to do with the assault on the deceased, saying that he was at home at the time. However, other evidence contradicted his denials. On 13 October the police returned to his home with a search warrant. The accused was arrested and cautioned. At that point he admitted that it was he who had assaulted the deceased. He gave an account of the assault which was consistent with what the witnesses had said, namely that the deceased had been starting at him and telling him to "fuck off". As a result, he, the accused, had walked behind the deceased, grabbed his forehead and bent it back and put his thumbs on the deceased's eyeballs. He then started to walk away, but – as he described it – a switch in his head flicked, and he turned and ran back and elbowed the deceased hard so that he fell to the ground. He said that he had been trained in Kung Fu since the age of 15, and described his blow as a "very powerful hit". He said that the deceased did not just fall, but that he "flew through the air". 5. The accused has been in custody since his arrest on 13 October 2014. 6. As issue subsequently arose as to the accused's mental state, and in particular his fitness to stand trial. As a result, he has been assessed by two forensic psychiatrists, Dr Gerald Chew and Professor David Greenberg. I shall discuss their reports shortly. In the meantime, it is appropriate to say something about the issues to be determined in an inquiry of this nature. The Presser Criteria 1. It is now firmly established that if an issue arises as to an accused person's fitness to stand trial, it is to be adjudicated upon the basis of the person's capacity to meet the criteria set out in R v Presser (1958) VR 45 ("the Presser criteria") . The following is an encapsulation of the seven criteria specified in that case. 2. In order to be fit to stand trial an accused person needs to be able to: * Understand the nature of the charge. * Plead to the charge and exercise his right of challenge. * Understand generally the nature of the proceedings. * Follow the course of the proceedings, and understand the effect of the evidence given against him. * Make his defence or answer to the charge. * Instruct his counsel as to his version of events. * Decide what defence he will rely upon. Psychiatric Reports 1. As already indicated, the accused has been assessed by two forensic psychiatrists for the purpose of this inquiry. Dr Gerald Chew saw him at the request of the defence solicitors on 17 July 2016 and provided a report dated 18 July 2016. He had previously seen him the month before. The accused told Dr Chew that he intended to plead not guilty and represent himself, as he knew that his legal representatives "had it in for him" and wanted him in jail. He said that in fact the victim was not dead, and that there was a conspiracy to "get him". The justice system, of which lawyers are a part, were conspiring to keep the underclass in prison. He said that he did not need lawyers, as "I know my case, and I'm the only one that knows the full story." 2. Dr Chew described the accused's troubled childhood, which is not necessary to detail here. The accused's delusions and possible hallucinations were, the doctor thought, indicative of a primary psychotic disorder. His working diagnosis was that the accused was suffering from schizophrenia. He expressed the opinion that the accused was unfit to stand trial. He considered that the accused's delusions relating to the justice system, including his beliefs that there is fabricated evidence and a conspiracy to gain a conviction, means that he would be unable to instruct a lawyer or participate meaningfully in a trial. 3. Prof Greenberg assessed the accused on 7 September 2016 on behalf of the DPP. He had previously seen the accused in May 2016. His lengthy and detailed report was dated 18 September 2016. I shall describe it briefly, concentrating on the issues which are relevant to this Inquiry. 4. After talking to the accused at length about the charge and the nature of the proceedings against him, Prof Greenberg concluded that the accused had the capacity to meet the first two of the Presser criteria, in that he could understand the nature of the charge and plead to it. He could also exercise his right of challenge. He understood the court's proceedings, but beyond that he had real difficulties. The accused claimed that he was not guilty of causing the death of the deceased, and that his solicitor and barrister were involved in corruption. He queried whether the person who died was the person he had hit. 5. Prof Greenberg concluded that, because of his symptoms of mental illness, the accused would have difficulty appreciating the substantial effect of evidence given in court, as well as deciding on a defence and instructing his counsel. He cannot communicate his version of the facts because he is thought disordered. For the same reason, he would have difficulty giving evidence, if required to do so. Accordingly, Prof Greenberg considered that the accused did not meet the Presser criteria, and is not fit to stand trial. Conclusion 1. The expert evidence being all one way on this issue, both counsel agreed that the only appropriate finding is that the accused is unfit to stand trial for the present offence. It is for this reason that I made the findings and orders set out at the beginning of these 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: 20 April 2018