District Court New South Wales Medium Neutral Citation: R v Cromwell (a pseudonym) [2022] NSWDC 80 Hearing dates: 15 February 2022 Decision date: 15 February 2022 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: The accused is unfit for trial - State charges referred to the ODPP (NSW) - Commonwealth charges to proceed to a determination as to whether a prima facie case is made out. Catchwords: Fitness hearing - different State and Commonwealth regimes if accused found to be unfit. Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: R v Presser (1958) VR 45; Kesavarajah v R (1994) 181 CLR 245;R v Munday [2021] NSWDC 374; Taylor v R (1978) 22 ALR 599; R v Denison (a pseudonym) [2020] NSWDC 267 Category: Procedural rulings Parties: Regina (Crown) Mr Cromwell (a pseudonym) (the Accused) Representation: Ms Brain (Commonwealth Crown Prosecutor) Ms Moen (Counsel for the accused) File Number(s): 2020/00334224 Publication restriction: Statutory non publication of the name of the accused or of anything else which might, directly or indirectly, identify him. Judgment 1. On 24 November 2020, Mr Cromwell (a pseudonym) was on parole in connection with various child sex offences. On that date, he was arrested following the execution of a search warrant by police at premises at which Mr Cromwell was residing. 2. Following Mr Cromwell's arrest on 24 November 2020, he was charged with 15 offences involving a combination of both New South Wales and Commonwealth legislation. 3. In due course, Mr Cromwell appeared before McAnulty LCM in the Campbelltown Local Court on 20 October 2021 by which stage the proceedings had been through the charge certificate process - and through that process, a number of the charges which Mr Cromwell originally faced were withdrawn - such that, by the time the proceedings were before his Honour again on 18 November 2021, only six of the original 15 charges were being pressed by the prosecuting authorities. 4. Two of the alleged offences are Commonwealth matters; the remaining four are New South Wales matters. 5. An issue was raised before his Honour as to whether Mr Cromwell was fit for trial in relation to the remaining 4 charges; and, as is mandated by s 20B of the relevant Commonwealth legislation and s 93(1) of the relevant New South Wales legislation, the question of Mr Cromwell's fitness for trial was, in effect, referred to this Court for determination. 6. In preparing for the fitness hearing which was listed for hearing today, three relevant experts reports were obtained. The Crown obtained a report from Dr Adam Martin (a forensic psychiatrist) dated 23 November 2021. The legal representatives for the accused obtained two reports: a report from Dr Melissa Hughes (a clinical neuropsychologist and forensic psychologist) dated 20 September 2021; and a report from Dr Sathish Dayalan (a forensic psychiatrist) dated 10 February 2022. 7. I pause to observe that Dr Dayalan's report was sought, in addition to that of Dr Hughes, because there was some perceived doubt as to whether Dr Hughes' report conformed to the statutory requirements. It is not necessary in these reasons to make any determination as to whether Dr Hughes' area of expertise fitted the statutory requirement - not least because, in large part, her findings were adopted (by reference) by Dr Martin. 8. The relevant criteria as to whether an accused person is fit for trial is no longer the common law criteria for fitness captured by R v Presser (1958) VR 45 and Kesavarajah v R (1994) 181 CLR 245. Rather the relevant criteria are now those provided for in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) as to which I refer with gratitude to the helpful judgment of Haesler SC DCJ in R v Munday [2021] NSWDC 374. Fortunately, the fitness test set out in the common law position in Presser is reflected in the statutory test set out in s 36 of that Act; and the common law position in relation to Kesavarajah is set out in s 44 of the Act. 9. Proceedings for fitness are not adversarial and the relevant onus of proof is the balance of probabilities. Helpfully the experts in this case have gone about their task in a non-adversarial way, although that is not always the case. 10. In broad terms - and that is a sufficient approach for today's purposes - each of the experts has concluded by reference to s 36 of the Act that the accused is unfit for trial. 11. I pause to observe that the fact that the three experts have arrived at the same conclusion is not binding on the Court – cf Taylor v R (1978) 22 ALR 599 and R v Denison (a pseudonym) [2020] NSWDC 267. But that is a rare outcome and is certainly not going to be the outcome today. 12. By having regard to the contents of each of those reports, I am satisfied on the balance of probabilities: (a) that Mr Cromwell is unfit for trial; and (b) (although there is a slight difference of opinion between Dr Hughes and Dr Dayalan on the one hand and Dr Martin on the other) that, in connection with the State charges, the accused will not become fit for trial in the next 12 months. (That later finding is not either necessary or relevant at this point in connection with the Commonwealth charges). 13. Up to this point, the legal considerations attending upon Commonwealth and State prosecutions have travelled along the same path; but it is at this point that the paths diverge. 14. Insofar as the State charges are concerned, the two findings that I have just made have the following consequences. First, the matter must be referred to the State Director of Public Prosecutions for that Director to consider whether or not the charges are to proceed. Secondly, if the charges are to proceed, then a special hearing needs to be appointed. 15. The statutory regime is different in connection with the Commonwealth prosecution. As I have indicated insofar as the State charges are concerned, the proceedings must be referred to the Director so that she can decide whether or not to continue with the proceedings and, if so, there will need to be a special hearing. Insofar as the Commonwealth charges are concerned, that is not the process. In relation to these charges the Court must now embark upon a determination as to, whether or not, a prima face case has been made against the accused and, if so, there are slightly different consequences. 16. The Court will now adjourn these proceedings principally to permit the State Director of Public Prosecutions to consider her position in relation to the State charges. 17. If the State Director determines to proceed with the State charges, I would expect that the special hearing and the hearing as to whether or not there is a prima face case would be fixed at the same time. I do not understand either party presently before the Court to take a different approach. 18. These proceedings will be adjourned for approximately four weeks to permit the State Director of Public Prosecutions to consider her position. 19. Bail is not applied for and is formally refused. 20. ADJOURNED TO 24 MARCH 2022 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2022