R v Risi [2021] NSWSC 769

R v Risi [2021] NSWSC 769

The accused was presently unfit to be tried because his cognitive impairment from brain injury and his mental impairment, including PTSD and depressive anxiety, meant that at least several capacities in s 36(1) were absent, including understanding the offences and proceedings, following the proceedings, understanding the substantial effect of evidence, making a defence, instructing lawyers, and deciding what defences to rely on. Although the Court shared Dr Furst's pessimism, s 47(1) required a choice between 'may become fit' and 'will not become fit'; a finding that the accused will not become fit should only be made with real certainty. Dr Allnutt's evidence showed a realistic...

Jurisdiction
Australia
Judgment Date
21 June 2021
Procedural Posture
Criminal Fitness to Be Tried Inquiry / Inquiry Into Fitness to Be Tried After a Question of Fitness Was Raised Before Arraignment
Outcome
The accused was found unfit to be tried but may become fit to be tried within 12 months; he was remanded in custody and referred to the Mental Health Review Tribunal.
Legal Topics
['fitness to Be Tried' 'cognitive Impairment' 'mental Health Impairment' 'mental Health Review Tribunal Referral' 'special Hearings']
['criminal Law' 'mental Health Law'] ['fitness to Be Tried' 'cognitive Impairment' 'mental Health Impairment' 'mental Health Review Tribunal Referral' 'special Hearings']

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Procedural Posture

Criminal Fitness to Be Tried Inquiry / Inquiry Into Fitness to Be Tried After a Question of Fitness Was Raised Before Arraignment

Legal Issues

  1. 1 ['Whether Michele Noel Risi was unfit to be tried on the offences charged in the indictment.' 'Whether, on the balance of probabilities during the period of 12 months after the finding of unfitness, the accused may become fit to be tried or will not become fit to be tried.' 'Whether the Court could order that the accused be detained in a particular hospital or facility.' 'Whether the matter should be referred back to the Director of Public Prosecutions to consider whether the prosecution should continue.']

Ratio Decidendi

The accused was presently unfit to be tried because his cognitive impairment from brain injury and his mental impairment, including PTSD and depressive anxiety, meant that at least several capacities in s 36(1) were absent, including understanding the offences and proceedings, following the proceedings, understanding the substantial effect of evidence, making a defence, instructing lawyers, and deciding what defences to rely on. Although the Court shared Dr Furst's pessimism, s 47(1) required a choice between 'may become fit' and 'will not become fit'; a finding that the accused will not become fit should only be made with real certainty. Dr Allnutt's evidence showed a realistic...

Court Disposition

The accused was found unfit to be tried but may become fit to be tried within 12 months; he was remanded in custody and referred to the Mental Health Review Tribunal.

Orders

  • ['In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the accused, Michele Noel Risi, is unfit to be tried on the offences the subject of the indictment filed against him in this court.' 'Pursuant to section 47(1)(a) of the Mental Health and Cognitive Impairment Provisions Act...