R v Hume (A pseudonym) [2021] NSWDC 123

District Court New South Wales

Medium Neutral Citation: R v Hume (A pseudonym) [2021] NSWDC 123 Hearing dates: 15 April 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: The accused is unfit to be tried. Catchwords: Unfitness – fitness test – inquiry- Mental Health and Cognitive Impairment Forensic Provisions Act – Criminal Procedure Legislation Cited: Crimes Act 1900 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Kesavarajah v The Queen (1994) 181 CLR 230 Category: Procedural rulings Parties: Regina (Crown) Hume (Accused) Representation: Counsel: Mr Pincott (DPP)

Solicitors: Ms Murphy (DPP) Ms Murray (Legal Aid) File Number(s): 2019/00350425 Publication restriction: Non-publication order in relation to the name of the accused and the complainants.

EX TEMPORE Judgment

INTRODUCTION 1. HIS HONOUR: Mr Hume is 86 years of age. On 11 March 2021 he was arraigned on a three count indictment alleging sexual intercourse with a child under 10 contrary to s.66A(1) of the Crimes Act 1900. The complainant at the time of the alleged offences was the granddaughter of the accused and aged six. The offences are alleged to have occurred between June and October 2019. He was interviewed in November 2019 and is currently on remand at Long Bay Correctional Centre. 2. The court has received three reports namely Dr Susan Pulman forensic psychologist and clinical neuropsychologist dated 25 August 2020 and Jessica Pratley clinical and forensic psychologist dated 25 January 2021 and 12 April 2021. 3. Those reports call into question the fitness of the accused to face trial. The matter is to be dealt with pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which prescribes criminal procedures for the Supreme and District Court for persons affected by mental health and cognitive impairments. The act replaced the Mental Health (Forensic Provisions) Act 1990 and commenced on 27 March 2021. 4. The court must conduct an enquiry to determine whether a defendant is unfit to be tried for an offence as soon as practicable: s 42. 5. The enquiry procedures are set out in section 44 and include the following; 1. The determination is by judge alone: s 44 (1). 2. The defendant is to be represented by an Australian legal practitioner unless ordered otherwise: s 44 (2). 3. The enquiry is not to be conducted in an adversarial manner: s 44 (3). 4. Onus of proof does not rest on any particular party: s 44 (4). 5. The court is to consider modification of the trial process or assistance provided to facilitate understanding and effective participation in the trial. The length and complexity of the trial and representation of the defendant: s 44 (5). 6. A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied: 44 (6). 1. Mr Hume is represented by an Australian legal practitioner. 2. Section 36 now creates an explicit statutory test for fitness based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181 CLR 230. Section 36 (1) provides that a person will be unfit to be tried if, because they have a mental health or cognitive impairment, they cannot do one or more of the following: 1. understand the offence the subject of the proceedings, 2. plead to the charge, 3. exercise the right to challenge jurors, 4. understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, 5. follow the course of the proceedings so as to understand generally what is going on, 6. understand the substantial effect of any evidence given against the person, 7. make a defence or answer to the charge, 8. instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, 9. decide what defence that person will rely on and make that decision known to the person's legal representative and court. 1. The list is not exhaustive and does not limit the grounds on which a court may consider a person to be unfit to be tried for a defence: s36 (2).