Supreme Court New South Wales Medium Neutral Citation: R v Cody Franklin [2019] NSWSC 1214 Hearing dates: 13 September 2019 Decision date: 13 September 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) The accused, Cody Franklin, is unfit to be tried. (2) In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, Mr Franklin is referred to the Mental Health Review Tribunal. (3) In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or he is released to bail or in accordance with the law. (4) I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days: (a) A copy of my findings and judgment. (b) A copy of the orders which I have made. (c) A copy of the transcript of the proceedings. (d) A copy of the exhibits in the proceedings. Catchwords: CRIMINAL LAW – fitness to stand trial – Presser test – accused charged with murder and intentionally damaging property by fire – where parties agree the accused is unfit to be tried – active symptoms of severe mental illness – schizophrenia – schizoaffective disorder – thought disorder – treatment resistant – bizarre delusions – Christina Aguilera –significantly impaired capacity to participate in proceedings – unable to make a defence or answer to the charge – accused unfit to stand trial Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) ss 10, 14 Cases Cited: Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina Cody Franklin Representation: Counsel: L Shaw (Regina) I Nash (Mr Franklin) Solicitors: Office of the Director of Public Prosecutions (Regina) Cunninghams The Law Practice (Mr Franklin) File Number(s): 2017/00202326 Publication restriction: Nil Judgment 1. Cody Franklin is charged with the murder of Arthur Phelan and two counts of intentionally damaging property by fire. There has been an issue as to Mr Franklin's fitness to stand trial from the inception of the criminal process. Once he was committed to stand trial, the question of fitness was raised before the Criminal List Judge and her Honour made a determination under s 10 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") that there should be an inquiry into the issue. The inquiry was listed for hearing this morning. The Prosecutor tendered a bundle of material and provided written submissions. Mr Nash of counsel, who appears for Mr Franklin, agreed with the submissions made by the Prosecutor. In short, the parties agree that Mr Franklin is not fit to stand trial. This position is based on the undisputed opinions of two psychiatrists. Mental health legislation and the Presser test 1. The Act provides the procedures to be adopted in the conduct of such an inquiry. The question of fitness is to be determined by Judge alone, and the principles of law that are applied and the findings of fact made, must be recorded. The inquiry is not to be conducted in an adversarial manner and neither party bears any onus of proof. The question of the person's fitness is to be determined on the balance of probabilities. Section 14 of the Act provides for the orders that can be made upon a finding that a person is unfit to stand trial. 2. The Act is silent as to the legal test or criteria upon which the question of fitness is to be determined. However, that test is well settled and derives from the utterances of Smith J in the case of R v Presser [1958] VR 45. The test has been adopted by the High Court, including in Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41. In a passage often quoted, Smith J set out the test at p 48: "And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that 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 proceeding, namely, that it is an inquiry 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 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 decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." The prosecution case 1. The evidence included a prosecution case statement which sets outs briefly the case against Mr Franklin. 2. Mr Arthur Phelan lived upstairs from Mr Franklin in a unit block in Parkes. The prosecution alleges that Mr Franklin assaulted him and caused his death on the morning of 5 June 2017. Mr Phelan was unwell, fragile and immobile. At the time of his death he weighed just 40 kilograms. The two men knew each other and there was no evidence of any animosity between them. The accused would often borrow money and cigarettes from Mr Phelan. 3. On the morning of 5 June 2017, Mr Phelan's girlfriend and ex-partner visited him. They left at about 10:20am and Mr Phelan was alone. 4. People in the vicinity heard yelling at about 10:00am. At around 10:50am a tradesperson saw the accused inside his unit, naked and yelling. The accused was "waving his hand above his head" and at one point put his hands through his lounge room window, smashing the glass. The accused moved away from his window but the noise of screaming and smashing continued. 5. At 11:26am a resident heard a window breaking and said she saw the accused throwing things out of his window onto the ground outside. Shortly thereafter, between 11:30am and 11:40am, the fire alarm at the unit block went off. It is the prosecution case that sometime between 10:20am and 11:30am the accused killed Mr Phelan and afterwards set fire to a chair in the deceased's unit before setting fire to a couch in his own unit. 6. Police who attended the scene said that Mr Franklin was "mumbling incoherently" and had blood on his hands, legs and feet. The accused introduced himself to police as "Lord Regal". He was conveyed to Parkes Hospital by ambulance. 7. Forensic testing undertaken on the shorts the accused was wearing revealed that blood found on three areas contained a mixed DNA profile from three people. The accused could not be excluded as a major contributor and the deceased could not be excluded as a minor contributor. Forensic testing undertaken on a jacket the deceased was wearing contained a mixed profile of at least two people. The deceased could not be excluded as a major contributor, and the accused could not be excluded as a minor contributor. Swabs from the deceased's hands and cheeks contained no DNA other than his own. 8. If the matter went to trial there may be an issue regarding the presence and involvement of another man, who was a friend of the accused and was sighted at the unit block that morning, however it is unnecessary to consider that issue in any detail in the context of the present inquiry. If the prosecution could establish that Mr Franklin caused Mr Phelan's death, there would be an issue of whether the act or acts causing death was or were done with an intention to kill or to inflict grievous bodily harm. There may also be an issue of mental illness. 9. I would like to pause briefly to acknowledge the family, friends and loved ones of Mr Arthur Phelan. They are in attendance today by means of a video link to Parkes. I realise that nothing I say can help ease your pain but please know that you have the Court's deep sympathy. Evidence on the fitness hearing 1. Two expert psychiatric reports were tendered on the fitness hearing. These were from Dr Adam Martin who examined the accused back in October 2017 and Dr Kerri Eagle who was retained by the prosecution and based her opinion on a body of documentary evidence and an interview with Mr Franklin on 15 May 2019. Both doctors diagnosed the accused with schizophrenia and/or schizoaffective disorder and each was of the opinion that he was not fit to stand trial. 2. Neither psychiatrist was able to obtain a reliable personal history from the accused. Dr Martin reported that he "formed the opinion early on that Mr Franklin was not a reliable historian owing to active symptoms of severe mental illness". What is known comes mostly from official records of one kind or another. 3. Medical records provided to the experts showed that the accused was an involuntary mental health patient at Orange Base Hospital for a number of months in 2016 where he was diagnosed with schizoaffective disorder. A letter from Priscilla Wallace of the Aboriginal Mental Health Commission showed that Mr Franklin was scheduled in 2017 after his arrest in this matter. 4. Other documents showed that Mr Franklin's mental illness was one of long standing. In 1996 he was at the Riverina Juvenile Justice Centre and exhibited what was described as "acute psychotic decompensation". He had "grandiose beliefs about being a wizard" and expressed "persecutory ideations" about the local health service "framing" criminal charges against him. 5. Dr Martin said that the accused was polite and co-operative in the interview, but that his capacity to communicate was "impaired by his thought content, thought disorder and probable hallucinosis". The accused expressed "bizarre ideas" about his identity and family which were delusional in nature. He said that he heard voices telepathically, and Dr Martin said this was consistent with auditory hallucinations. Dr Martin expressed the opinion that the accused was "frankly psychotic". Material provided to the Doctor recorded that Mr Franklin had undergone electro-convulsive therapy and had been given Clozapine, which the Doctor described as a "testament to him having a very severe and treatment-resistant mental illness". 6. Dr Martin was of the opinion that the accused was aware of the charges against him and had a "[rudimentary] understanding" of what it meant to plead to them. He reported that the accused was unable to articulate how he would challenge either a juror or the evidence, but was of the opinion that he had a basic understanding of the "adversarial nature of the court". In Dr Martin's view, the most significant issue regarding the accused's fitness to stand trial was his ability to follow the course of the proceedings and that, while psychotic, the accused would have a "significantly impaired capacity to participate" in the proceedings. The Doctor was of the view that his ability to make a rational defence would be "significantly compromised by being thought disordered, hallucinated and delusional". 7. Dr Eagle diagnosed the accused with a severe form of schizoaffective disorder which results in relapses of psychosis and episodes of severe mood disorder. She reported the accused to be cooperative during her assessment but that he displayed some "bizarre delusions" including that he had been married to Mother Teresa and Christina Aguilera. The accused told Dr Eagle that he was able to communicate telepathically. He said that he was a "mafia escort" and that his "first wife was Mother Teresa" who was the reincarnated Cleopatra. 8. Dr Eagle referred to a discharge summary from the Bloomfield Hospital bearing the date 4 July 2017. The accused was described as "floridly psychotic", "very agitated and unpredictably aggressive". He expressed delusions of a "bizarre and grandiose" nature. He said he was the "lion king" and had "spent 100 million years in hell" and that he was "brought to hospital by angels". 9. Dr Eagle was of the opinion that Mr Franklin's judgment was significantly impaired by persistent psychotic symptoms including disorganised thought processes and that he displayed substantial deficits in cognitive function in a number of domains including attention, memory and fluency. He suffered a head or brain injury when he was 14 and Dr Eagle said he had "borderline intellectual capacity". 10. As to his fitness to stand trial, Dr Eagle reported that Mr Franklin was aware that he was charged with the murder of Arthur Phelan, but that he was unable to provide a logical explanation of his options to plead. She reported that the accused was unable to demonstrate any understanding of the Court process or role of a jury and could not explain the purpose or process of a hearing in a basic sense. When asked what the role of a jury was, the accused replied "once I leave here I will be Emperor … Lord Jesus". He was unable to demonstrate any understanding of the substantial effect of any evidence that would be given against him and could not spontaneously identify any forms of evidence. Substance abuse and resistance to treatment 1. While it was clear that Mr Franklin had used and abused illegal drugs throughout his life, Dr Eagle said that any substance abuse disorder was in remission. Even so, his florid symptoms of mental illness persisted. 2. Despite being treated with antipsychotic medication, presumably for many months, he continued to exhibit a severe thought disorder. For example, when interviewed by Dr Eagle, Mr Franklin responded to "unseen stimuli", and displayed "a pre-occupation with bizarre, persecutory and grandiose beliefs." Conclusions on the criteria relevant to Mr Franklin's fitness to stand trial 1. Based on the material before me, I have come to the following conclusions as to the criteria relevant to the question of Mr Franklin's fitness to stand trial. Does Mr Franklin understand what he is charged with and is he able to plead to the charge? 1. I am satisfied that Mr Franklin understands that he is charged with the murder of his neighbour, Arthur Phelan. 2. The opinions of the experts differed in relation to whether he was able to plead to the charge. Dr Martin was of the opinion that the accused understood the basic meaning of guilty and not guilty, but didn't understand the meaning of not guilty by reason of mental illness. Dr Eagle reported that the accused could not explain any of his options to plead. Based on the severity of his illness and on Dr Eagle's opinion, I am not satisfied that Mr Franklin is in a position, rationally, to plead to the charges. Is Mr Franklin able to exercise his right of challenge? 1. I am not satisfied that the accused would be able to exercise his right of challenge. Does Mr Franklin have the ability to understand generally the nature of the proceedings? 1. I am satisfied that Mr Franklin's ability to understand the nature of the proceedings is severely compromised by his mental illness. Is Mr Franklin able to follow the course of the proceedings so as to understand what is going on in court in a general sense? 1. I am not satisfied that Mr Franklin would be able to follow the course of the proceedings or understand what is going on in Court, even in a general sense. I am satisfied that Mr Franklin's thought disorder, hallucinations and delusions, as well as the substantial deficits in his cognitive function would prevent him from any real or basic understanding of what was occurring in a trial. Is Mr Franklin able to understand the substantial effect of any evidence given? 1. I am not satisfied that Mr Franklin would be able to understand the substantial effect of much of the evidence that would be given at a trial. Is Mr Franklin able to make his defence or answer to the charge? 1. By reason of his thought disorder, hallucinations and difficulty concentrating, I am not satisfied that Mr Franklin is able to make a defence or answer to the charge. I make this finding on the basis that Mr Franklin would be unable to give coherent evidence at his trial and would be unable, while psychotic, to provide instructions to his lawyers. Conclusion and orders 1. Mr Franklin is not fit to stand trial. Accordingly, I make the following orders: 1. The accused, Cody Franklin, is unfit to be tried. 2. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW), Mr Franklin is referred to the Mental Health Review Tribunal. 3. In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I remand the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or until he is released to bail or otherwise in accordance with the law. 4. I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days: 1. A copy of my findings and judgment. 2. A copy of the orders which I have made. 3. A copy of the transcript of the proceedings. 4. A copy of the exhibits in the proceedings. ********** 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: 13 September 2019