R v Briar [2024] NSWDC 590

District Court New South Wales

Medium Neutral Citation: R v Briar [2024] NSWDC 590 Hearing dates: 15 October 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: The defendant is unfit to be tried on the present indictment and will not become fit within 12 months. Direct that the registrar of District Court Broken Hill request the advice of the Director of Public Prosecutions as to whether they will proceed with a special hearing Catchwords: MENTAL HEALTH — Criminal proceedings — Fitness to be tried — Person unfit to be tried — Person will not become fit within 12 months Legislation Cited: Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 R v Presser [1958] VR 45 Category: Sentence Parties: Kevin Douglas Briar (the defendant) Public Prosecutions (NSW) (Crown) Representation: Solicitors: T Russell solicitor for Aboriginal Legal Service (NSW/ACT) (for the offender) M Scott solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2023/63803

JUDGMENT – Ex tempore revised

Introduction 1. Three serious criminal charges and an alternate have been brought against Kevin Briar. They are said to have occurred at Wilcannia on 24 and 25 February 2023. They are set out in the indictment, part of Exhibit 1, Tab 1. 2. Count 1, involves an allegation of a home invasion resulting in actual bodily harm being occasioned. Count 2 is an alternative to Count 1 of assault occasioning actual bodily harm. Count 3 is a choking allegation. 3. It is not in dispute that the accused, or defendant, Kevin Briar has a cognitive impairment and intellectual disability and other conditions that impact on his intellectual capacity. 4. His personal and medical history is carefully set out in a Justice Health Report of Ms Lanyard, a clinical nurse consultant. Doctor Martin whose report is also before the Court summarises Briar's condition succinctly, at par 14. "Mr Briar clearly has very significant psychosocial problems manifesting with significant cognitive impairment, likely multifactorial in origin, dating back to brain damage suffered in utero [foetal alcohol spectrum disorder] and a history of problematic and heavy alcohol and drug use. He has historically been dependent on alcohol and experienced withdrawal seizures. He has significant other medical issues ..." 1. The issue of Kevin Briar's fitness to enter pleas to the counts on the indictment were raised in good faith: Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 42(3).