R v Rush, Shayne [2009] NSWDC 325

R v Rush, Shayne [2009] NSWDC 325

On the evidence, the accused failed the aspect of the Presser test requiring capacity to give instructions and make his version of the facts known to counsel and the court. The only available explanation for that incapacity was an unidentified mental condition or mental defect. On the balance of probabilities he was unfit to be tried, requiring referral to the Mental Health Review Tribunal, adjournment of the proceedings, and remand in custody pending the Tribunal's determination.

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Criminal / Fitness Inquiry Before Trial
Outcome
Accused found unfit to be tried; matter referred to the Mental Health Review Tribunal; proceedings adjourned generally; accused remanded in custody pending the Tribunal's determination.
Legal Topics
['unfitness to Be Tried' 'presser Test' 'capacity to Instruct Counsel' 'referral to Mental Health Review Tribunal' 'remand in Custody']
['criminal Law' 'mental Health Law'] ['unfitness to Be Tried' 'presser Test' 'capacity to Instruct Counsel' 'referral to Mental Health Review Tribunal' 'remand in Custody']

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Procedural Posture

Criminal / Fitness Inquiry Before Trial

Legal Issues

  1. 1 ['Whether the accused was unfit to be tried on the balance of probabilities.' 'Whether the accused had the capacity to give instructions to his legal representatives and articulate a defence.' "Whether the accused's incapacity was caused by a mental defect despite the absence of expert psychiatric evidence and his refusal to submit to assessment."]

Ratio Decidendi

On the evidence, the accused failed the aspect of the Presser test requiring capacity to give instructions and make his version of the facts known to counsel and the court. The only available explanation for that incapacity was an unidentified mental condition or mental defect. On the balance of probabilities he was unfit to be tried, requiring referral to the Mental Health Review Tribunal, adjournment of the proceedings, and remand in custody pending the Tribunal's determination.

Court Disposition

Accused found unfit to be tried; matter referred to the Mental Health Review Tribunal; proceedings adjourned generally; accused remanded in custody pending the Tribunal's determination.

Orders

  • ['Shayne Charles Rush, having been found unfit to be tried, is referred to the Mental Health Review Tribunal.' 'The proceedings are adjourned generally.' 'The accused is remanded in custody until the determination of the Tribunal has been given effect to.']