R v Robinson [2019] NSWDC 661

District Court New South Wales

Medium Neutral Citation: R v Robinson [2019] NSWDC 661 Hearing dates: 11 – 12 November 2019 Date of orders: 18 November 2019 Decision date: 18 November 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the offence charged. Catchwords: MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing CRIME — Sexual offences — Act of indecency — meaning of word 'towards' Legislation Cited: Crimes Act 1900. Evidence Act Mental Health (Forensic Provisions) Act 1990 Summary Offences Act 1988 (NSW) Cases Cited: Eades v Director of Public Prosecutions (2010) 77 NSWLR 173; [2010] NSWCA 241 R v Barrass [2005] NSWCCA 131 R v Chonka [2000] NSWCCA 466 R v Francis (1989) 88 Cr App R 127 R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 R v McIntosh (unreported CCA 26/9/1994) Category: Principal judgment Parties: Regina (Crown) Tony William Robinson (Accused) Representation: Counsel: P Kerr (Crown) C Mendes (Accused)

Solicitors: Solicitor for Public Prosecutions Legal Aid Commission NSW/ACT File Number(s): 2017/00174837 Publication restriction: Names of complainants

Judgment

INTRODUCTION 1. On 3 May 2018 Walmsley SC DCJ found Tony William Robinson unfit to be tried on two charges of an act of indecency towards a child and referred the matter to the Mental Health Review Tribunal. On 19 February 2019 the Tribunal determined that Mr Robinson 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 5 April 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 charges against Mr Robinson. 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).