R v Eriksen (No 2)

The accused, Anthony Eriksen, stands charged with the murder of Lisa Fenwick. The trial of the matter is scheduled to commence on 5 May 2025.

The matter first came before me on 16 December 2024. At that time, the previous lawyers for the accused had been sacked by him, and new attorneys appeared. They were Mr Harrison of counsel instructed by Mr Newham, solicitor.

Because those lawyers had not had time to consider the brief owing to only recently having been engaged and due to the time of year, I stood the matter over to 24 February 2025. I expected at that time that the lawyers for the accused would be able to inform the Court if there were any pre-trial issues to be resolved.

On 24 February 2025, I was informed that the accused had terminated the instructions of Mr Harrison and Mr Newham. At the hearing, Mr Newham handed up an unsigned document styled “affidavit”, which stated the fact of the termination of instructions and contained a request that an order be made that the accused be assessed by a psychiatrist to assess his fitness to stand trial. Further details of that document are contained in my ex tempore reasons of 10 March 2025 (“the 10 March reasons”).

The matter was then stood over to 3 March 2025 with a request that a representative from Legal Aid attend to inform the Court of the status of the grant of aid to the accused and what is being, or could be done, to assist him in the engagement of new lawyers.

On 3 March 2025, the matter came back before me. Mr Doumit from Legal Aid appeared, in effect as amicus curiae. He informed the Court that the grant of Legal Aid to the accused remained open. He said he had written a letter to the accused with respect to the engagement of new lawyers. Unfortunately, that letter had not been received by the accused as at the date of that hearing. Mr Doumit noted that, as the accused had two changes of representation already, “he was running out of options”.

On that day, I said that I had concerns arising from the material provided to the Court on 24 February 2025 by Mr Newham. Those concerns stemmed from the fact of Mr Newham having raised the question of the accused’s fitness to stand trial. I said that I would consider what steps should be taken in respect to that matter.

I should observe that the accused objected to any part of the unsigned affidavit of his former solicitor being relied on. That was because it was unsigned and because he said he gave no instructions for it to be deployed. Whilst noting that objection I considered, as stated in the 10 March reasons, that given the issue of the accused’s fitness to stand trial had been raised, and without having formed any view, he should be assessed as to whether he was fit to stand trial. The matter was stood over to 10 March 2025.

On 5 March 2025, my chambers received a communication from Mr Doumit that the accused’s grant of legal aid had been terminated. The grounds of termination were that the accused had withdrawn instructions from, and failed to cooperate with, his legal representatives. The accused had refused to attend an AVL conference with Mr Doumit that day to discuss the desirability of him being legally represented at trial.

On 10 March 2025, the Court made orders pursuant to s 43 of the Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW) (“the Act”) that:

My reasons for making those orders were set out in the 10 March reasons.

On 27 March 2025, my chambers received an email from the Court’s registry which forwarded an email received by them from Justice Health NSW. That email advised that “…our psychiatrist has attempted to conduct a psychiatric assessment on Mr Eriksen twice, unfortunately he refused on both occasions”.

I subsequently received a report from Dr Maryam Nesvaderani and Dr Kerry Eagle dated 2 April 2025. They are both psychiatrists in the NSW Community Forensic Mental Health Service. In that report the doctors indicated that they attempted to assess Mr Eriksen via AVL on 18 March 2025 and 26 March 2025. Mr Eriksen declined to attend the assessment on both occasions. They prepared a report based on the information they had available to them. They noted that as Mr Eriksen declined to participate in a clinical psychiatric assessment, their recommendations were based on the limited information available to them. They stated that the absence of a clinical assessment gave rise to significant limitations in their ability to provide a reliable opinion on the presence or absence of a mental health condition and on his fitness to be tried.

The doctors had available to them the Justice Health and Forensic Mental Health Network medical files dealing with the accused and the Crown case statement. They also liaised with a Justice Health Clinical Nurse Consultant who had dealings with the accused.

Their report noted that the accused was arrested and charged on 9 April 2023 and has remained in custody since. The report stated:

After setting out the allegations with respect to the circumstances of the offence from the Crown Case statement, the report noted that the accused had denied any history of mental illness when asked by mental health nursing staff. It referred to his drug and alcohol history. He told the mental health nurse he drank one or two glasses of red wine on one or two days a week. He denied using any illicit substances or having any previous relevant medical history. The report recited his personal history from information gleaned from the notes of his dealings with the mental health nurses and social workers whilst in custody.

The report concluded:

Plainly, the report did not provide any diagnosis of the accused as suffering from a mental health or cognitive impairment. It noted he would benefit from a psychiatric assessment but had refused to engage in that process. I did not consider there was anything in the report which gave rise to any matters which would, of themselves, raise a concern that the accused was not fit to be tried.

On 14 April 2025 the matter came back before me. Despite directing that the report be sent to Mr Eriksen, he had not received it at the time of the directions hearing. I asked whether he would attend a psychiatric assessment if I directed it occur. He said: “No, thanks”. In those circumstances, I saw no reason to order an assessment again.

It seemed to me that it would be appropriate to ask the accused, in a modified way, some questions to assess as best I could, his understanding of the process of the trial and the nature of the charge he was facing (see R v Presser [1958] VR 45). [1] Whilst those questions were leading in their nature, there was nothing in the answers, or in the way the accused answered them, which gave me any concern as to whether he understood the questions or was unable to answer them.

I again informed Mr Eriksen that it would be in his best interests to be represented by lawyers at the upcoming trial and that Legal Aid had indicated they would reinstitute the grant of aid. He declined and reiterated he intended to represent himself at the trial.

I note that there is a presumption that a person is fit to stand trial: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [86] per Gaudron J; JM v R;; R v JM [2017] NSWCCA 138 at [178]. The question of the accused’s fitness only arose in this case because of the statement in the document provided to the Court by his former solicitor Mr Newham on 24 February 2025. That question having been raised, I felt that I was obliged to make the orders I did on 10 March 2025. There was nothing that I had observed or heard which, absent the statement by Mr Newham, would have caused me to raise the issue of the accused’s fitness to stand trial.

There is nothing in the report of 2 April 2025 which would prove that the accused is unfit. True it is that the report is very limited by reason of the accused’s refusal to submit to a psychiatric assessment. It is also true that the psychiatrists said that the accused would benefit from such an assessment. However, I did not see the benefit of ordering another assessment when the accused had told me he would not comply and attend. That is particularly so when he had shown no signs in all of the hearings before me that he had an impairment or other mental health issue which meant he could not understand what was happening in court. He engaged fully in the process and asked and answered questions relevant to the proceedings.

I do not consider there is any material which would displace the presumption of fitness.

Insofar as the orders I made on 10 March 2025 require any additional orders with respect to whether an inquiry should be held, I do not consider it is necessary to hold any inquiry with respect to the accused’s fitness to stand trial. [2]

Accordingly, the trial will commence on 5 May 2025.