R v Bellette [2019] NSWDC 525

District Court New South Wales

Medium Neutral Citation: R v Bellette [2019] NSWDC 525 Hearing dates: 22-23 July 2019 Date of orders: 23 July 2019 Decision date: 23 July 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, the accused is not guilty of the offence charged. Catchwords: MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing Cases Cited: Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Regina (Crown) Kenneth James Bellette (Accused) Representation: Counsel: C Hurford (Solicitor advocate for Public Prosecutions, Crown) C Tawagi (Solicitor for Accused) File Number(s): 2017/00298536

Judgment

INTRODUCTION 1. On 15 October 2018 Hanley SC DCJ found Kenneth James Bellette unfit to be tried on a charge of damage property by fire and referred the matter to the Mental Health Review Tribunal. Mr Bellette was ordered to be detained. On 29 November 2018 the Tribunal determined that Mr Bellette was unfit and on the balance of probabilities he would not become fit to be tried for the offence with which he has been charged within 12 months of the Court's finding of unfitness. 2. On 14 March 2019 the DPP gave notice that pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 ('the Act') that it intended to proceed with the charge against Mr Bellette. 3. Pursuant to s 19(1)(b) of the Act, as a result of that notice the Court "is to conduct a special hearing as soon as practicable unless the DPP advises that no further proceedings will be taken". 4. A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be found proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged: s 19(2).