R v JH [2018] NSWDC 65

District Court New South Wales

Medium Neutral Citation: R v JH [2018] NSWDC 65 Hearing dates: 12 March 2018 Decision date: 16 March 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Accused held unfit to stand trial Catchwords: Fitness to be tried; "Presser" criteria Legislation Cited: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Kesavarah (1994) 181 CLR 230; [1994] HCA 41 R v Presser (1958) ALR 128 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) JH (Accused) Representation: B Queenan (Crown S Walsh (Accused) File Number(s): 16/229544 Publication restriction: S 7 Suppression and Non-Publication Order for identity of Accused and Complainants

inquiry into the fitness of the accused to stand trial

Introduction 1. On 12 March 2018 an inquiry was held under the provisions of the Mental Health (Forensic Provisions) Act 1990 ("MHFPA") as to the fitness of the accused to stand trial on seven charges contained in an Indictment. 2. The accused had not been arraigned on that Indictment and I determined, pursuant to s 8 of the MHFPA, that an inquiry should be conducted before the hearing of the proceedings in respect of the offences contained in the Indictment. 3. Section 11 of the MHFPA provides that the question of a person's unfitness to be tried for an offence is to be determined by Judge alone. Section 11(2) provides that any determination must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. Section 12 provides that the inquiry is not to be conducted in an adversary manner and that the onus of proof does not rest on any particular party. 4. At the conclusion of the inquiry into the accused's fitness to be tried, I determined that I had come to a conclusion that the accused was unfit to be tried and that I would deliver my reasons on Friday 16 March 2018, as I was presiding over a busy list on circuit in Taree, with a trial due to commence. The following reasons include the principles of law relied on by me and my findings of fact.