R v McGregor [2019] NSWDC 878

District Court New South Wales

Medium Neutral Citation: R v McGregor [2019] NSWDC 878 Hearing dates: 2 September 2019 Date of orders: 02 September 2019 Decision date: 02 September 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: The offender is not fit to stand trial. Catchwords: Fitness to be tried, Assault w intent to cause GBH Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser (1958) VR 45 Ngatayi v R (1980) 147 CLR 1 Kesavarajah v R (1994) 181 CLR 230 Category: Procedural and other rulings Parties: Christopher Allan Mcgregor (Offender) Regina (Crown) Representation: Counsel: Mr Wong File Number(s): 2018/00190139

Judgment 1. HIS HONOUR: Christopher Allan McGregor faces an indictment which reads: "On 12 June 2018 at Parramatta in the State of New South Wales did cause grievous bodily harm to Carol Townsend with intent to cause grievous bodily harm." 2. The facts in short compass are as follows. The complainant is shown on CCTV footage obtained from the bus station to touch her lower back before she approached the accused and said words to the effect, "Don't ever push me again." The accused interacted with the complainant, attempting to talk to her and speak to her in sign language. The accused is deaf and uses a combination of Auslan and signed English to communicate. The accused then stopped walking away, took six steps towards the complainant, drew his arm back with a raised elbow and punched the complainant with a closed fist to her head, striking the complainant on the left side of her face. The complainant toppled backwards and fell to the ground, striking her hip on the pavement and losing a shoe as she did so. A number of passers-by who witnessed the assault ran to assist the complainant, one of whom telephoned emergency services. Immediately after punching the complainant, the accused returned to his suitcase and walked away towards the train station. As he walked away, the accused looked over his shoulder at the complainant, who remained lying on the ground surrounded by persons who had stopped to come to her aid. 3. The assault is captured on CCTV footage from the bus station, which was obtained by the police in the course of their investigation. 4. Ambulance officers attended the scene and conveyed the complainant to Westmead Hospital. Medical examination and imaging revealed the complainant sustained: (a) multiple fractures to her face, namely, an acute left orbital floor fracture, fracture to maxillary sinus walls and left zygomatic arch fracture; (b) fractures hip, namely, a right comminuted pertrochanteric fracture of the neck of the femur. 1. It is fundamental to our system of law and justice that a person charged with a criminal offence be able to understand and, if necessary, meet and defend that charge. If a person is not fit enough to do so, they cannot have a trial according to law. To overcome the problem of ensuring justice is done both for the accused and any complainant, the Mental Health (Forensic Provisions) Act 1990 sets out procedures for first determining if a person is fit to be tried and then, if unfit, progressing the matter with the help of the Mental Health Review Tribunal by either waiting until they are fit or, if it is not likely they will become fit, by providing for a special hearing to be held. 2. At a special hearing evidence can be presented and tested and a judge can find the accused either not guilty of an offence charged; or not guilty on the ground of mental illness; or that, on the limited evidence available, the accused person committed the offence charged; or that, on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged. 3. The issue of the accused's fitness to enter a plea to the indictment has been raised on a bona fide basis by both the prosecution and the defence. Accordingly, this Court must, as soon as practicable, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence (s 10 Mental Health (Forensic Provisions) Act 1990). The question of a person's unfitness to be tried for an offence is to be determined by the judge alone. Any determination by the judge under this section must include the principle of law applied by the judge and the findings of fact on which the judge relied (s 11 Mental Health (Forensic Provisions) Act 1990). This inquiry will not be conducted in an adversarial manner. The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party. 4. The accused suffers with the diagnosis of schizophrenia and a likely substance use disorder.