District Court New South Wales Medium Neutral Citation: R v O'Brien [2020] NSWDC 60 Hearing dates: 16 December 2019 Date of orders: 11 March 2020 Decision date: 11 March 2020 Jurisdiction: Criminal Before: Bright DCJ Decision: (1) I find that the accused Adam O'Brien is unfit to be tried for the offences. (2) In accordance with section 14(a), Mental Health (Forensic Provisions) Act, I refer the matter to the Mental Health Review Tribunal. (3) I direct the Registry to provide a copy of the reports of Dr Martin and Dr Ellis be provided to the Mental Health Review Tribunal together with a copy of my judgment. (4) In accordance with section 14(b), Mental Health (Forensic Provisions) Act, the proceedings are adjourned to 11 June 2020 for mention. The accused is excused if legally represented. Catchwords: Fitness hearing - Presser test – agreement of experts Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900 Bail Act 2013 Cases Cited: R v Presser (1958) VR 45 Kesavarajah v R [1994] HCA 41; 181 CLR 245 Category: Procedural and other rulings Parties: Regina Adam O'Brien Representation: Counsel: Mr J Wilcher for Defence Solicitors: Mr D Hoitink for the D.P.P File Number(s): 2017/00291372 Judgment 1. Adam O'Brien, the accused, has been charged with two offences of aggravated take and detain with intention of obtaining an advantage (section 86 (2)(a), Crimes Act). Procedural History 1. On 31 January 2019 the accused appeared before Gosford District Court and was arraigned. The matter was listed for trial on 6 May 2019. 2. On 6 May 2019 his Honour Judge Wilson vacated the trial date on the basis that an issue had arisen in relation to the accused's fitness to be tried. 3. On 8 August 2019 the matter was stood over to 16 December 2019 for a fitness enquiry. 4. On 16 December 2019 the accused appeared before the Gosford District Court to determine the question of his fitness to be tried. The relevant law 1. Section 6, Mental Health (Forensic Provisions) Act provides: "The question of a person's unfitness to be tried for an offence is to be determined on the balance of probabilities". 1. Section 11, Mental Health (Forensic Provisions) Act provides: "(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone. (2) Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied." 1. Section 12, Mental Health (Forensic Provisions) Act provides: "(1) At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by an Australian legal practitioner. (2) An inquiry is not to be conducted in an adversary manner. (3) The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence." 1. Section 13, Mental Health (Forensic Provisions) Act provides: "If, following an inquiry, an accused person is found fit to be tried for an offence, the proceedings brought against the person in respect of the offence are to recommence or continue in accordance with the appropriate criminal procedures." 1. Section 14, Mental Health (Forensic Provisions) Act provides: "If, following an inquiry, an accused person is found unfit to be tried for an offence, the proceedings brought against the person in respect of the offence must not, except for the purpose of doing any of the things referred to in paragraph (b), be recommenced or continued and the Court: (a) must refer the person to the Tribunal, and (b) may discharge any jury constituted for the purpose of those proceedings and may, pending the determination of the Tribunal under section 16, do any one or more of the following: (i) adjourn the proceedings, (ii) grant the person bail in accordance with the Bail Act 2013, (iii) remand the person in custody until the determination of the Tribunal has been given effect to, (iv) make any other order that the Court considers appropriate." 1. In determining whether the accused is fit to be tried, the question is whether the accused, because of mental defect, fails to meet certain minimum standards beneath which the trial cannot be conducted without the possibility of unfairness and injustice to the accused (the "Presser" criteria). 2. The "Presser criteria" are derived from R v Presser (1958) VR 45 as affirmed in Kesavarajah v R [1994] HCA 41; 181 CLR 245. 3. In R v Presser, Smith J stated as follows: "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 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 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 evidence 1. The following material was tendered on behalf of the Crown during the fitness hearing: Exhibit A - indictment, Crown Case statement, report of Dr Adam Martin dated 24 September 2019, terms of reference to Dr Adam Martin dated 27 August 2019, and criminal history dated 25 December 2017. 1. The following material was tendered on behalf of the accused: Exhibit 1 - report of Dr Ellis dated 4 August 2019. Exhibit 2- defence written submissions The Crown case 1. The Crown case stated briefly is that on 1 September 2017 the accused in the company of a co-accused (whose identity is unknown) detained Philip Jarvis and Christopher Bourke in circumstances where he wanted to know the location of his excavator. 2. At the time of the detention both Philip Jarvis and Christopher Burke had cable ties placed around their wrists. During the detention the complainants were threatened by having a gun pointed at them by both this accused and the co-accused. 3. Ultimately, each complainant was released later the same day. The matter was subsequently reported to police. 4. The accused was arrested on 23 December 2017. The medical evidence 1. Report of Dr Andrew Ellis dated 4 August 2019 2. Dr Ellis assessed the accused on 12 July 2019. At the outset of his report, Dr Ellis noted the following in relation to the accused: "The interview was somewhat limited by his intermittent lack of cooperation and sometimes dismissive responses to questions. He told me that he had drunk two pre-mixed cans of bourbon prior to the interview, and his presentation was concordant with that history." 1. Dr Ellis noted that the accused was 32 years old and was on a disability support pension. The disability related to an electrocution injury he suffered in 2006. It was noted that the accused was not taking any medication and was not seeing any doctor or mental health professionals. 2. At the outset of his report Dr Ellis noted the observations made of the accused at court during his appearance before Gosford District Court on 6 May 2019 as follows: "…He presented late to court. He was dishevelled, had an extremely bloodshot left eye and considered disorganised in thought, word and deed. He was wearing thongs and, on the way to court, had purchased two additional pairs of thongs, which he carried with him into court... " "…Mr O'Brien produced the two pairs of thongs to his legal advisors and then made a demand that both his lawyer and counsel briefed to appear for Mr O'Brien remove their footwear and wear thongs in Court as a show of solidarity and support in front of the jury. This demand was refused by counsel briefed to appear for Mr O'Brien. Mr O'Brien then became extremely agitated and transfixed on the ideation that if his legal representatives did not wear thongs, he would lose his case. No matter what reasoning was expressed to Mr O'Brien, he was not shifted from the ideation regarding his legal team wearing thongs.". "…He was focused on peripheral and irrational issues and did not appear to understand what was being said to him regarding the Crown case, did not seem to appreciate the gravity of his situation, did not seem to understand what was being explained to him and could not give coherent instructions as to the offer made by the Crown." 1. The accused told Dr Ellis during the assessment that he wears thongs because he has suffered long-term cramps in his feet related to his electrocution injury in 2006. He explained that "in May, when he bought thongs for his legal team, he wanted them to see how it felt ". The accused's background 1. The accused reported that he was born in Sydney. He has one older brother. His parents separated when he was young and he was raised by his mother and his grandparents. He attended school until he was 18 years old. He described that he was a poor academic student however, was good at sport and had many friends. 2. He reported that he previously worked in labouring, security work and in the Fire Brigade. He changed jobs frequently and has been self-employed. Psychiatric history 1. The offender reported that he had never been admitted to a psychiatric hospital and has never taken psychotropic medication regularly. He had briefly been prescribed antidepressants. 2. Dr Ellis noted the following: "He was variably diagnosed with post-traumatic stress disorder, major depression and anxiety problems after 2006. He had suffered an electrocution injury in the course of this work as a fireman. He had multiple assessments and changes of treatment providers over the period 2006-2016 in the context of an insurance claim. Conversion disorder (physical expression of psychological distress) was also considered as many of his symptoms were related to muscle cramps. Exaggeration of his symptoms was considered." Substance use and addiction history 1. The accused reported some experimentation with prohibited drugs when he was younger. He denied any current illicit substance use. 2. He reported to Dr Ellis that at the time of assessment he was currently drinking between four and eight standard alcoholic drinks every day. He reported he occasionally blacked out where he cannot recall events whilst drinking. Medical history 1. The accused reported a head injury as a consequence of riding his bike when he was 15 years of age. He did not receive any specific treatment. 2. He outlined that in 2006 when he was working as a firefighter he was inside a burning building and fell into water. He experienced a jolting sensation and assumed he had been electrocuted. Dr Ellis noted that neurologist opinions referred to in other reports consider that this may have led to long-term muscle cramping problems. Other opinions considered that the long-term problems for this injury are unlikely. 3. GP records examined by Dr Ellis record that in 2007 the accused was the victim of a stabbing whilst on holidays in Brazil. 4. The accused reported that he had spinal injuries as a consequence of surfing accidents and fights. 5. He was unaware of any family history of psychiatric illness. Mental State examination 1. Dr Ellis made the following observations relevant to the question of the accused fitness to be tried: "When I asked him about his charge he said that he had not read his emails and had not looked at all at the Crown case statement. He said "they reckon I got one truck and tried to put it into another truck". He became uninterested in the interview when I took him to the contents of the Crown case statement. He reported that an oath was to "swear to God to tell the truth". He told me that a person could give an affirmation instead without prompting. He said that he would "go to hell" if he didn't tell the truth. When asked what he understood the term to enter a plea meant he said "whatever my lawyer thinks". He knew that guilty meant someone was "in trouble". He said that they would go to hell. He said that someone who is not guilty was "not in trouble". He had heard of the plea of not guilty by reason of mental illness and had seen this on television. He said the person was "a fruitcake and would go to the loony bin". He knew his lawyer's name. He said that he could trust her and tell her his version of events. He indicated his lawyer's job was to show the truth in court. He knew that the prosecutor stood on the other side of the table. He said they "make up lies and bull shit". He said they were supposed to tell the truth. He knew that the judge would say whether he was guilty or not guilty. He said that the jury were "someone's mates". When I tried to ask him about challenging the juror he became irritated and did not answer. He said that evidence was provided in court by asking questions. He thought that he could not do anything if he did not agree with evidence presented in court. He did not think he would get a fair trial as "cops lie all the time". He said "you have no chance". 1. Dr Ellis conducted a further evaluation for malingering and concluded that the accused responses "generally fell in line with groups who are genuinely responding and not feigning the presence of mental disorder". 2. In the opinion of Dr Ellis the accused met the criteria for an alcohol use disorder, and possibly a stimulant use disorder. 3. Dr Ellis also considered possible diagnoses of PTSD, mood disorder and disturbance of personality. Dr Ellis was unable to make a definitive diagnosis in respect of any of those matters in circumstances where he considered it would require observation of the accused over time in an environment where he did not have access to drugs and/or alcohol. Dr Ellis also thought brain imaging and blood tests would be of assistance to determine whether there is any structural damage to the brain and to exclude medical causes of mood disorders. 4. In relation to the question of fitness to be tried, Dr Ellis stated as follows: "In terms of specific fitness issues at present he has a faulty understanding of his charges, and is refusing to engage with material presented to him about them in order to improve this. He has a very limited understanding of what evidence is being used against him. He has not decided on a plea. He has a basic understanding of the pleas available. He has concluded that the court will accept lies from the prosecution, and thus will not challenge evidence or instruct to give his version of events, seeing the process as futile rather than an impartial enquiry into his conduct. Intoxication with substances could further erode abilities in these areas. I am of the opinion that the most likely explanation for his more difficult presentation at court than in my rooms is a combination of intoxication with substances (either alcohol or stimulants, or both) and the inherent stress in a courtroom situation, rendering his underlying psychiatric condition (whichever of the provisional diagnoses above) exacerbated and symptoms worsened. In this case, his psychiatric disorders are contributing to his decision to use substances, likely to allay the associated distress. In this circumstance, I am of the opinion that on balance court could find him unfit to be tried." 1. Dr Ellis made a number of recommendations in relation to treatment indicating that the accused's conditions are generally responsive to treatment. Dr Ellis considered that if the accused adhered to the recommended treatment plan that was likely he would be considered fit to be tried within 12 months. However, if he remained in his current living situation without the assistance of health professionals, then his fitness to be tried is not likely to improve (although may present as better when not intoxicated). Report of Dr Adam Martin dated 24 September 2019 1. Dr Martin conducted an interview with the accused on 13 September 2019. 2. At the outset of his report Dr Martin noted the following about the presentation of the accused at the time of the interview: "Mr O'Brien presented alone to this interview. In the waiting room he was looking behind pictures and wandered around the offices, inappropriately entering another doctor's office. He was dishevelled and smelt of alcohol although denied that he had been drinking. He appeared severely distracted, frequently looking elsewhere. His responses to questions were generally very brief, vague, lacking detail and frequently irrelevant. I was unable to gain any meaningful detail from him regarding his psychiatric history." 1. Dr Martin noted that whilst the accused "did not positively endorse current or recent experience of psychotic phenomena" he "answered irrelevantly to almost every question". Also, whilst he denied drinking alcohol before the assessment he said that he usually starts drinking in the morning on most days. 2. The accused denied a history of mental health admissions and stated "I'm not a fruitcake". 3. Specifically, in relation to the fitness criteria Dr Martin noted the following: "I asked Mr O'Brien the nature of his charge and his response was "not really" and he was unable or unwilling apparently to give any indication as to the nature of the current charges. He only stated "they're just lying to get me out of the way" but did not elaborate. On being asked who "they" were, he said "all of them" and said "they stole a million dollars worth of stuff". It was possible he was alluding to the complainant's in this matter. On being asked questions about what it means to plead, he did not give any sensible answer but repeatedly referred to his lawyer "Tash" and saying that he trusted her to speak for him. I was unable to ascertain whether he understood the conceptual meaning of pleading or potential pleas available. In relation to his general understanding of court, he said "to tell that they are not guilty" but he did not further elaborate. Regarding a jury he said "people who sit up there on chairs" and in relation to the juror's role, he said "to tell the truth". I was unable to gauge his understanding of the substantial effect of evidence that may be given and from this interview, I was unable to be satisfied that he had the ability to make a defence or answer to the charge adequately or to be able to give necessary instructions to a lawyer. His behaviour during this interview suggested that he might have significant difficulty following the course of proceedings, at face value, although I could not exclude the possibility that he was not deliberately embellishing mental or behavioural disturbance in order to confer legal advantage." 1. Dr Martin agreed with Dr Ellis's opinion in relation to the accused having alcohol use disorder. He further agreed with Dr Ellis's thoughts in relation to other possible diagnoses. 2. Dr Martin noted: "Mr O'Brien's presentation was highly unusual and at times appeared somewhat theatrical and I was unable to be completely satisfied that he was not malingering." Dr Martin noted that he did not perform any objective malingering tests or observe the accused longitudinally. 1. Dr Martin further stated: "It is also plausible that Mr O'Brien does have an underlying mental illness of some type although the apparent history does not suggest that he has had a typical trajectory of someone with a psychotic illness such as schizophrenia. The described behaviour according to Dr Ellis's report, information given to Dr Ellis by his legal team, and the behaviour I witnessed was highly unusual and disordered and suggestive of significant psychological disturbance, although again, the possibility of deliberate embellishment or feigning of mental disorder cannot be entirely excluded. He may well have a background of post-traumatic stress disorder although his more recent behaviour and presentation could not be explained by such a diagnosis. He may have disturbance of personality, as Dr Ellis canvasses at page 9 of his report, although again the described behaviour is much more extreme than would normally be the case in a person with personality disorder. It is plausible that he has sustained cognitive damage as a result of years of substance abuse but his presentation was atypical." 1. Dr Martin ultimately that concluded that it was unlikely that a court would find the accused fit to stand trial in circumstances where he did not satisfy a number of the Presser criteria. 2. Dr Martin was of the opinion that further fitness assessment would require longitudinal assessment in a controlled situation such as a forensic mental health unit to clarify the diagnosis (in the absence of the use of substances). Consideration 1. In relation to the satisfaction of the Presser criteria, I make the following findings: 1. Does the accused understand what he is charged with and is he able to plead to the charges? Dr Martin noted that the accused was unable or unwilling to give any indication to him as to the nature of the current charges. He told Dr Ellis "they reckon I got one truck and tried to put it into another truck ".Dr Martin noted that the accused was unable to give a sensible answer when asked about what it means to plead. When asked by Dr Ellis what he understood the term to enter a plea meant he said "whatever my lawyer think". In such circumstances, I am not satisfied he understands what he is charged with or is able to plead to the charges. 2. Does the accused understand his right to challenge? When Dr Ellis asked the accused about his right to challenge he became irritated and did not answer. Dr Martin was unable to be satisfied that the accused understood what it means to exercise the right to challenge jurors. In such circumstances, I am not satisfied the accused understands his right to challenge. 3. Does the accused understand generally the nature of the proceedings? Dr Martin concluded that the accused was unable to explain in any way his understanding of the nature of the proceedings and his presentation did not demonstrate that he had the capacity to follow the course of the proceedings adequately. Dr Ellis concluded that the accused had a basic understanding of the pleas available however Dr Ellis noted that the accused "had concluded that the court will accept lies from the prosecution" and accordingly, will not challenge evidence or instruct to give his version of events "seeing the process is futile rather than in an impartial enquiry into his conduct". In such circumstances, I am not satisfied that the accused understands generally the nature of the proceedings. 4. Does the accused have the ability to understand the substantial effect of any evidence given. Dr Martin was of the opinion that the accused was unable to demonstrate his understanding of the substantial effect of any evidence that might be given. Dr Ellis noted that the accused had a very limited understanding of what evidence is being used against him and (as previously noted) had decided not to challenge the evidence. In such circumstances, I am not satisfied the accused has the ability to understand the substantial effect of any evidence given. 5. Does the accused have the ability to follow the proceedings (that is, understand what is going on in a general sense)? Dr Martin noted that the behaviour of the accused during the interview with him suggested he might have significant difficulty following the proceedings. However, Dr Martin could not exclude deliberate embellishment of his mental or behavioural disturbance. I note that Dr Martin did not perform any objective malingering tests. Dr Ellis did conduct an interview designed to evaluate for malingering. He considered that the accused responses "generally fell in line with groups who are genuinely responding and not feigning the presence of mental disorder". Having regard to the available evidence, I am not satisfied the accused has the ability to follow the proceedings. 6. Does the accused have the ability to make his defence or to answer to the charges? After assessing the accused, Dr Martin was unable to be satisfied that the accused had the ability to make a defence or answer to the charges adequately or to be able to give necessary instructions to a lawyer. As previously noted, Dr Ellis indicated that the accused has no intention to challenge the evidence because of his belief that the court proceedings are futile. In such circumstances, I am not satisfied that the accused has the ability to make his defence or to answer the charges. 1. Having regard to those findings, I am satisfied on the balance of probabilities that the accused is unfit to be tried. The orders of the court are as follows: 1. I find that the accused Adam O'Brien is unfit to be tried for the offences. 2. In accordance with section 14(a), Mental Health (Forensic Provisions) Act, I refer the matter to the Mental Health Review Tribunal. 3. I direct the Registry to provide a copy of the reports of Dr Martin and Dr Ellis be provided to the Mental Health Review Tribunal together with a copy of my judgment. 4. In accordance with section 14(b), Mental Health (Forensic Provisions) Act, the proceedings are adjourned to 11 June 2020 for mention. The accused is excused if legally represented. ********** 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: 02 April 2020