Director of Public Prosecutions (NSW) v Marmara & 1 Or [2004] NSWCA 478

New South Wales Court of Appeal

CITATION : Director of Public Prosecutions (NSW) v Marmara & 1 Or [2004] NSWCA 478 HEARING DATE(S) : 16/12/04 JUDGMENT DATE : 16 December 2004

JUDGMENT OF : Hodgson JA at 51; Ipp JA at 1; Bryson JA at 56 DECISION : (1) The making of a declaration that Dodd DCJ was bound to conduct a further fitness hearing of the First Opponent Marmara in respect of the offence of maliciously wounding with intent to do grievous bodily harm, alternatively maliciously wounding police officer in the execution of duty, alternatively assault occasioning actual bodily harm (2) An order that the proceedings be remitted to the District Court to be determined according to law.

CATCHWORDS : MENTAL HEALTH - Procedure under Mental Health (Criminal Procedure) Act 1990 (NSW) where defendant unfit to be tried - Where unfitness is raised before arraignment - Where jury finds unfitness established - Where Mental Health Review Tribunal made a determination that the defendant was suffering from a mental illness and determined that the defendant will be fit to be tried within 12 months - Where bail granted - Where Attorney General determined that a second inquiry should be conducted - Whether question as to unfitness to stand trial raised by Attorney General in good faith - Whether trial judge erred in not ordering a further inquiry. ND LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 (NSW), ss 5, 7, 8(1), 10, 11A, 12(3), 13, 14, 15, 16(1), 16(2), 16(3), 16(4), 17, 18, 19, 20 Mental Health Act 1990 (NSW), s 253 CASES CITED : R v Mailes (2001) 53 NSWLR 251 R v Tier (2001) 121 A Crim R 509 Director of Public Prosecutions (NSW) (Claimant) PARTIES : Raymond Paul Marmara (First Opponent) The District Court of New South Wales (Second Opponent) FILE NUMBER(S) : CA 40762/04 R Cogswell SC/A Mitchelmore (Claimant) COUNSEL : D Barron (First Opponent) Submitting Appearance (Second Opponent) S C Kavanagh, Solicitor for Public Prosecutions (Claimant) SOLICITORS : S O'Connor, Solicitor for Legal Aid Commission (First Opponent) I V Knight, Crown Solicitor (Second Opponent)