R v Mark Joseph SMITH [2008] NSWDC 23

New South Wales District Court

CITATION: R v Mark Joseph SMITH [2008] NSWDC 23

HEARING DATE(S): 6 March 2008

JUDGMENT DATE: 12 March 2008

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: The accused is fit to be tried.

CATCHWORDS: CRIMINAL LAW - Fitness to be tried - Presser test - Amnesia

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990

R v Presser [1958] VR 45 Kesavarajah v The Queen (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 CASES CITED: Eastman v The Queen (2000) 203 CLR 1 R v Clarkson [2007] NSWCCA 70 R v Rivkin (2004) 59 NWLR 284 R v Drummond (unreported) NSWCCA 27/05/1994 R v Dennison (unreported) NSWCCA 03/03/1998

PARTIES: Regina v Mark Joseph Smith

FILE NUMBER(S): 07/11/0466

COUNSEL: W Robinson QC (Crown) R Hood (Offender)

JUDGMENT

Introduction

1 Mark Joseph Smith ("the accused") is to be arraigned by the Director of Public Prosecutions in relation to three allegations of false swearing before the Police Integrity Commission. The offences were committed on 30 May and 8 August 2003.

2 On or about 28 June 2007 an indictment was filed with this Court containing the three counts upon which the prosecution proposes to proceed against the accused. Before arraignment an issue has arisen as to the fitness of the accused to be tried. This Court has determined that an inquiry should be conducted before the hearing of the proceedings in respect of the offences pursuant to s 8 Mental Health (Criminal Procedure) Act 1990 ('the Act').

3 That inquiry was conducted on Thursday 6 March 2008 pursuant to s.10 of the Act. The question of the accused's fitness to be tried for an offence is to be determined by a judge sitting alone and any determination of this Court must include the principles of law applied by the judge and the findings of fact on which the judge relied (s.11). In determining this matter the Court has not been asked to consider s.10(4) of the Act. The inquiry was conducted in accordance with the requirements of s.12 of the Act.