R v Gall [2024] NSWDC 315

District Court New South Wales

Medium Neutral Citation: R v Gall [2024] NSWDC 315 Hearing dates: 19 June 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Jurisdiction: Criminal Before: Bennett SC ADCJ Decision: The Accused is Fit for Trial Catchwords: Mental Health Fitness Hearing – Accused's fitness to stand trial Legislation Cited: Crimes Act 1900 S 52A(2), S 52A(1)(c). Criminal Procedure Act 1986 s 66(1), s 166 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Road Transport Act 2013 Law part code 79217 S 117(1)(a) Cases Cited: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Kesavarajah v The Queen [1994] HCA 41 R v Dellamarta [2020] VSC 745 R v Maxwell [2023] NSWSC 1189 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 Reg. v. Presser (3) (1958) VR 45. Roberts v R [2023] NSWCCA 187 Category: Principal judgment Parties: David Gall (Defendant) Rex (Prosecutor) Representation: Counsel: Mr Whitaker (Crown) Mr N Broadbent (Counsel for the accused) Solicitors: Office of the Director of Public Prosecutions Ms. McCarthy (Solicitor for the Accused) File Number(s): 2023/00161384 Publication restriction: Nil

JUDGMENT

Introduction 1. David Gall was committed to the District Court of New South Wales for the following offences certified in the Local Court on 6 December 2023: Sequence H93285414/3 On 19 May 2023, at Bourbah in the State of New South Wales, did drive a motor vehicle, namely, Holden YKZxxx, whilst under the influence of intoxicating liquor, whereby the vehicle was involved in an impact as a result of which the death of Paul Kelly was occasioned, and where the prescribed concentration of alcohol was present in his blood. S 52A(2) Crimes Act 1900 Law part code 159 Sequence H93285414/1 (in the alternative to the above) On 19 May 2023, at Bourbah in the State of New South Wales, did drive a motor vehicle, namely, Holden YKZxxx, in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of Paul Kelly was occasioned. S 52A(1)(c) Crimes Act 1900 Law part code 140 1. Also certified for the District Court presented pursuant to s 166 Criminal Procedure Act 1986 is the following back up offence: Sequence H93285414/2 On 19 May 2023, at Bourbah in the State of New South Wales, did negligently drive a motor vehicle, namely, Holden YKZxxx, upon a road, namely, Gulargambone Road, and the said driving occasioned the death of Paul Kelly. S 117(1)(a) Road Transport Act 2013 Law part code 79217 1. The accused was not arraigned and I was not provided with a form of the indictment proposed. On 25 July 2024 when I announced my decision that I found the accused fit for trial the Crown advised that a bill was found in terms of the charges certified pursuant to s 66(1) Criminal Procedure Act 1986. 2. It is uncontroversial that the question of fitness may be raised when it was in the prosecution sequence and that there was no need for the accused to be arraigned before the question is considered and determined. 3. It is also uncontroversial that the question of fitness was raised in good faith.