R v Polanski [1999] NSWSC 433

New South Wales Supreme Court CITATION : R v Polanski [1999] NSWSC 433 revised - 31/08/99 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70017/98 HEARING DATE(S) : 3-5/5/99 JUDGMENT DATE : 5 May 1999

PARTIES : Crown Rafal Polanski JUDGMENT OF : Wood CJatCL

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : G.E. Smith (Crown) J. Nicholson SC (Accused) SOLICITORS : DPP Legal Aid CATCHWORDS : DECISION : Unfit to Plead

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 700017/98 WOOD CJ at CL WEDNESDAY 5 MAY 1999 REGINA V RAFAL POLANSKI JUDGMENT

1 HIS HONOUR: This matter comes before the Court as an inquiry into the fitness of the accused to be tried for the offence of murder of which he has been charged. The case is one in which a question as to his fitness to be tried arose prior to arraignment and the inquiry has been conducted following a direction from the Attorney-General pursuant s 8(1) of the Mental Health (Criminal Procedure) Act 1990. 2 The accused has elected for this issue to be tried by Judge alone following advice which I am satisfied was given to him by his solicitor. 3 As the Court of Criminal Appeal said in Mifsud, unreported, 8 November 1995, for an accused to make such an election he or she must not only receive that advice but must also understand what is involved in the election. 4 Notwithstanding some initial concerns in this regard I am, in this case, satisfied that the accused had sufficient capacity to understand, and did understand, what was involved and gave instructions for the matter to proceed Judge alone. This follows from the evidence of his solicitor, from the report of Dr Thompson and from the accused's indication that he would accept the advice which Mr Nicholson, of Senior Counsel, said was given to him, that it was preferable for the issue to be heard by Judge alone. 5 It is alleged by the Crown that the accused killed one Jozef Zimmer in a boarding house where that man lived during the evening of 18/19 October 1997. In substance, it is the Crown case that the accused, who had been drinking at the Polish Club, from which he had earlier been evicted, went with Mr Zimmer to the boarding home to sleep. There it is alleged that he struck him on the head several times with a fire extinguisher before stabbing him in the back, ransacking the flat and stealing several items of the deceased's property. It is alleged that the accused covered the body of the deceased with a mattress and other items. 6 In an ERISP he admitted to being responsible for striking the deceased with the fire extinguisher but said that he did so in circumstances where he was heavily intoxicated and where he was fearful of being raped by the deceased. Just prior to the attack he said that the deceased had played a pornographic video displaying homosexual conduct between males and had propositioned him for oral sex in return for $50. 7 In order to determine the application I need to instruct myself as to the regime established under the Mental Health (Criminal Procedure) Act. 8 The question of unfitness is to be determined as at the date of trial, in a non-adversarial manner (s 12(2)) and upon a balance of probabilities (s 6). The onus of proof on the question of fitness to be tried does not rest upon any party (s 12(3)). The findings open are that the accused is fit to be tried or unfit to be tried for the offence of murder and, I would add, for the statutory alternative of manslaughter that might arise on the facts of the case. 9 If the accused is found fit to be tried then his trial can proceed as normal (s 13). If he is found unfit then he is to be referred to the Mental Health Review Tribunal (s 14) which is then tasked with determining whether, on a balance of probabilities, he will within a period of twelve months after the finding of unfitness become fit to be tried (s 16(1)). 10 If it comes to that conclusion then the Tribunal must also determine whether he is suffering from mental illness or from a mental condition for which treatment is available in a hospital (s 16(2)). It is required to report its determination to the Court (s 16(3)). If the Tribunal determines that the accused will not be fit to be tried within the period of twelve months then it must notify the Attorney-General and the Director of Public Prosecutions accordingly (s 18). 11 The orders that the Court may make following a determination under s 16(1), that the accused will be fit within twelve months to be tried, are as set forth in s 17 and include orders for bail and detention in a hospital or other place. Where the determination is one of unfitness within twelve months to be tried, then the Attorney-General may, with the advice of the Director of Public Prosecutions, direct that a special hearing be conducted in accordance with ss 18 and 19 of the Act. Alternatively, the Attorney may advise the Minister for Police and Emergency Services and the Court that the accused will not be further proceeded against in respect to the offence charged, in which event the Court must order his release (s 20). 12 If a special hearing is directed then it is to be conducted in accordance with the provisions of ss 19 and 21 to 26 of the Act. The subsequent management of a person in respect of whom a special hearing has been conducted, including the conduct of a further trial in the event of him having been determined by the Tribunal at a later date to be fit, is provided for under ss 24(2) and (3) and ss 27 to 30 of the Act. 13 I have, accordingly, instructed myself in relation to the various consequences of a fitness inquiry as well as the reasons for such an inquiry. In that latter regard it has been recognised that it is unfair to place a person upon trial unless he or she is fit to be tried in accordance with the principles which have been established in that regard. 14 The matters to be taken into account in determining the question of unfitness are as stated in Presser (1958) VR 45 at 48; Dennison, CCA, 3 March 1988, unreported, and more recently in Kesavarajah (1994) 181 CLR 230. Although expressed in somewhat different terms, these decisions show that the accused is to be found unfit, if by reason of a mental illness or a mental condition, a conclusion is reached upon the balance of probabilities that: (a) he would not be able to understand the nature of the charge that has been brought against him so as to formulate a plea to it; (b) he would not be able to understand the nature of the proceedings which are being conducted in respect of him; that is, that they are an inquiry as to whether he committed the offence charged; (c) he would not be able to understand or follow the proceedings; that is, to understand what is going on at the trial or the effect of the evidence given in support of the prosecution case; (d) he would not have sufficient understanding to enable him to give proper instructions to his legal representatives so that he may properly defend the proceedings; (e) he would not be able to decide what defence he would rely upon and make that defence, and his version of the facts, known both to his counsel and to the Court.