R v Rush, Shayne [2009] NSWDC 325

New South Wales District Court

CITATION: R v Rush, Shayne [2009] NSWDC 325

EX TEMPORE JUDGMENT DATE : 30 November 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

Accused unfit to be tried. Matter is referred to Mental Health Tribunal. DECISION: Proceedings djourned pending the outcome of the review. Accused remanded into custody until determination of the Tribunal.

CATCHWORDS: Criminal Law - unfitness to be tried - unfitness raised by defence counsel against wishes of accused - fitness hearing conductedc- principles to be applied - absence of expert psychiatric evidence - bizzare conduct by accused towards defence team - apparent incapacity to instruct counsel - refusal to submit to psychiatric examination - absence of power to order psychiatric examination - only explanation held to be unidentified mental condition.

R v Presser [1958] VR 45 at p48 CASES CITED: R v Tigger unreported [2001] NSW CCA 53 R v Mailes (2001) 53 NSW LR 251 R v Dennison, unreported, NSW CCA 3 March 1988.

PARTIES: Regina Shayne Rush

FILE NUMBER(S): 2009/70788

COUNSEL: Accused: J O'Sullivan

SOLICITORS: Crown: Mr Stewart

JUDGMENT 1. On 27 August 2009 the accused appeared before his Honour Judge Sorby. He was arraigned on an indictment containing seven counts and pleaded not guilty to each count. At that time his Honour stood the matter over for trial to commence on Monday 23 November with an estimate of three to four days. On 23 November 2009 I was allocated the matter for trial. The indictment contains seven charges, three of them aggravated indecent assault, three of them aggravated sexual assault and one of them incite an act of indecency.