Ali Nasrallah v Regina - [2016] NSWDC 101

District Court

New South Wales

Medium Neutral Citation: Ali Nasrallah v Regina [2016] NSWDC 101
Hearing dates: 24 and 26 May 2016
Date of orders: 09 June 2016
Decision date: 09 June 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
(1) I find that the accused is presently fit to be tried.
(2) The matter is listed on 17 June 2016 to fix a trial date.

Catchwords: CRIMINAL LAW – sexual intercourse without consent- recklessly inflict actual bodily harm
MENTAL HEALTH – fitness to be tried – Presser criteria – factors – unfitness – present condition of accused – determination on balance of probabilities – onus of proof
PROCEDURAL – application for stay of prosecution – discretionary power – exceptional circumstances – onus – disadvantage or prejudice – administration of justice – erosion of public confidence
Legislation Cited: Crimes Act 1900 s61K(a)
Mental Health (Forensic Provisions) Act 1990 ss. 6, 11(1), 12(2), 12(3)
Cases Cited: R v Dashwood [1943] 1 KB 1
R v Presser [1958] VR 45
Ngatayi v The Queen (1980) 147 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
Eastman v The Queen (2000) 203 CLR 1
R v Sexton (2000) 77 SASR 405
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
R v Rivkin (2004) 59 NSWLR 284
Category: Principal judgment
Parties: Ali Nasrallah (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr Z Khan (Applicant)
Ms A Seeto (Repsondent)
Solicitors:
SE O’Connor, Legal Aid New South Wales (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/00082807

Judgment

Ali Nasrallah (the accused) has been charged with one count of recklessly inflicting actual bodily harm with intent to have sexual intercourse pursuant to section 61K(a) Crimes Act 1900.
The charge arises out of an incident on 18 March 2014 at around 8:30am. It is alleged that the accused dragged the complainant by her shoulders, threw her on the couch, held her down by her shoulders and arms and attempted to engage in sexual intercourse with her.
CT scans from 1998 and 2011 were interpreted to demonstrate an area of frontal lobe atrophy and on that basis the accused was diagnosed to be suffering from frontotemporal dementia (FTD); an organic form of dementia.
It is submitted on behalf of the accused that by reason of his cognitive deficiencies and possible FTD he is unfit to be tried.

Relevant Law

Fitness to Plead

Whether an accused person is unfit to be tried is determined by judge alone on the balance of probabilities: sections 11(1) and 6 Mental Health (Forensic Provisions) Act 1900.
An inquiry into fitness is not an adversarial matter and no party bears any onus of proof: sections 12(2) and 12(3) Mental Health (Forensic Provisions) Act 1900.

Purpose

The common law guarantees to an accused person the right a fair trial, one aspect of which is that a trial cannot proceed unless the accused person is fit to plead: Eastman v The Queen (2000) 203 CLR 1 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ali Nasrallah v Regina

Details

AGLC: Ali Nasrallah v Regina [2016] NSWDC 101
Case: [2016] NSWDC 101
Decision Date: 09 June 2016

CaseChat Overview and Summary

Nasrallah was charged with sexual intercourse without consent and recklessly inflicting actual bodily harm. He applied for a stay of prosecution on the basis of unfitness to be tried due to mental health issues. The case was heard in the relevant court where the primary legal issues were the determination of the accused's fitness to be tried and the appropriate procedural steps to take in light of this assessment. The court had to decide whether the accused met the criteria for unfitness under the Presser test, and if so, whether a stay of prosecution was warranted under the relevant legislation.

The court examined the accused's current mental health status, considering the balance of probabilities and the onus of proof. It assessed whether the accused met the criteria for unfitness to be tried, which involves understanding the nature and object of the proceedings, being able to instruct and communicate with a lawyer, and being able to follow the court process. The court also considered the exceptional circumstances necessary to justify a stay of prosecution, including potential prejudice to the administration of justice and the erosion of public confidence in the legal system. The court found that the accused was fit to be tried, based on the evidence presented.

The court ruled that the accused was currently fit to be tried, and thus, the application for a stay of prosecution was dismissed. The matter was listed to fix a trial date, demonstrating the court's intention to proceed with the trial without further delay. This decision highlights the court's responsibility to balance the rights of the accused with the need to administer justice efficiently. The court's ruling ensured that the accused's fitness to be tried was properly assessed and that the proceedings could move forward in an appropriate manner.

Orders

Orders of the court

(1) I find that the accused is presently fit to be tried.

(2) The matter is listed on 17 June 2016 to fix a trial date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ali Nasrallah v Regina [2016] NSWDC 101
Hearing dates:	24 and 26 May 2016
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	(1) I find that the accused is presently fit to be tried. (2) The matter is listed on 17 June 2016 to fix a trial date.
Catchwords:	CRIMINAL LAW – sexual intercourse without consent- recklessly inflict actual bodily harm MENTAL HEALTH – fitness to be tried – Presser criteria – factors – unfitness – present condition of accused – determination on balance of probabilities – onus of proof PROCEDURAL – application for stay of prosecution – discretionary power – exceptional circumstances – onus – disadvantage or prejudice – administration of justice – erosion of public confidence
Legislation Cited:	Crimes Act 1900 s61K(a) Mental Health (Forensic Provisions) Act 1990 ss. 6, 11(1), 12(2), 12(3)
Cases Cited:	R v Dashwood [1943] 1 KB 1 R v Presser [1958] VR 45 Ngatayi v The Queen (1980) 147 CLR 1 Kesavarajah v The Queen (1994) 181 CLR 230 Eastman v The Queen (2000) 203 CLR 1 R v Sexton (2000) 77 SASR 405 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 R v Rivkin (2004) 59 NSWLR 284
Category:	Principal judgment
Parties:	Ali Nasrallah (Applicant) Regina (Respondent)
Representation:	Counsel: Mr Z Khan (Applicant) Ms A Seeto (Repsondent) Solicitors: SE O’Connor, Legal Aid New South Wales (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/00082807