R v Munday [2021] NSWDC 374

District Court New South Wales

Medium Neutral Citation: R v Munday [2021] NSWDC 374 Hearing dates: 3 August 2021 Decision date: 03 August 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Mr Munday is unfit to be tried. For orders see [35] Catchwords: CRIME — Intentionally cause fire and be reckless as to its spread – fitness to be tried MENTAL HEALTH — Criminal proceedings - fitness to be tried – procedure MENTAL HEALTH — Criminal proceedings - fitness to be tried – person unfit to be tried - person will not be fit to be tried in 12 months Legislation Cited: Crimes Act 1900 Evidence Act 1995 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 R v Presser [1958] VR 45 Category: Principal judgment Parties: Warren Fletcher Munday (the defendant) Director of Public Prosecutions Representation: Counsel: Ms S Hall (for the defendant) Mr G Porter, Crown Prosecutor

Solicitors: Morrisons Law (for the defendant) File Number(s): 2020/00247037

Judgment

Introduction 1. Warren Munday has lived in Hilltop Avenue Lake Heights his entire life. He is now 54. When he was younger his home backed on to a small farm run by his parents. That farm has since been subdivided into a number of home blocks and cul-de-sacs. Some blocks have houses on them, some are vacant. For many years fires have been lit on the vacant blocks. Some of those fires escaped threatening homes and property. So concerned were some residents that they set up motion detection cameras to catch images of the person responsible. 2. On 25 August 2020 Mr Munday was arrested and charged with a number of counts of intentionally causing a fire being reckless as to the spread of the fire to vegetation on public land or land belonging to another: s203E(1) Crimes Act 1900. Those charges have been committed to this court. A s203E offence carries a maximum penalty of 21 years imprisonment. An Indictment setting out 29 counts said to have been committed between 2018 and 2020 is before the court. 3. Mr Munday has an intellectual disability. That intellectual disability gives rises to a "cognitive disability:" s 5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act). That is; he has an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, resulting from developmental delay arising from his intellectual disability. 4. Testing from 2011 indicates his cognitive ability fell within the Extremely Low Range, his verbal skills were extremely low and his non-verbal skills were within the Extremely Low Range 5. Mr Munday's capacity to engage with and understand the charges has been obvious since he was first charged. The issue as to his fitness to be tried in this court was raised prior to when it was first listed: s 37 MHCIFP Act. While this court must determine whether an inquiry into his fitness should be conducted before the hearing of the proceedings in respect of the offences, so obvious was the answer that the fitness hearing was listed for today. I found that there should be an inquiry into whether or not Mr Munday is fit to be tried; s40 MHCIFP Act. The hearing was held immediately: s42(2) MHCIFP Act. Given the seriousness and number of the charges and the nature of Mr Munday's cognitive impairment it was appropriate that I did so: s42(4) MHCIFP Act.