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Egan v JG

Egan v JG

Case [2010] ACTSC 53 18 June 2010

Mental Health Assessment

Cross Examination

Unfit to Plead

Criminal Law

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HUMAN RIGHTS ACT

KRISTEN EGAN, JOHN HAWKINS AND ALEXANDER BURR v JG
[2010] ACTSC 53 (18 JUNE 2010)

CRIMINAL LAW – appeal from Magistrates Court of the ACT – section 208 Magistrates Court Act 1930 (ACT) – young person, fitness to plead investigation – section 311 Crimes Act 1900 (ACT).
CRIMINAL LAW – confusion regarding proceedings before the court - lack of investigation by court of young person fitness to plead at first instance – miscarry of process.
CRIMINAL LAW – appeal against finding that young person unfit to plead - grounds of appeal: admission of mental health report, no opportunity for cross examination of the report, error finding young person unfit to plead, flawed mental health report.
CRIMINAL LAW – childrens’ proceedings – offence to publish identifying information about childrens’ proceedings - section 712A Criminal Code 2002 (ACT).

Crimes Act 1900 (ACT), ss 311, 311(2), 314(1), s315A, 315A(1)(a), 315A(1)(b)(ii), 315A(1)(b)(iii), 315C, 316(1), 316(8), Div 13.2

ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT), pt 1.38
Magistrates Court Act 1930 (ACT), Pt 3.10, ss 208(1)(a), 287
Evidence Act 1995 (Cth), ss 8(4)(b), 29, 41, 190, 190(2)
Human Rights Act 2004 (ACT), s 21
Mental Health (Treatment and Care) Act 1994 (ACT), explanatory memorandum, s 68
Criminal Justice Act 1954 (NZ), s 39A
Crimes Amendment Act 2005 (ACT), explanatory statement
Criminal Code 2002 (ACT), s 712A

Birgdin A and Thomson D, “The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment Procedure Involving Mental Health Professionals and Lawyers” (1999) 6 Psychiatry Psychology and Law 207
Ierace M, Intellectual Disability: A Manual for Criminal Lawyer (Redfern Legal Centre Publishing: Sydney, 1989)
Grubin D, “What Constitutes Fitness to Plead?” [1993] Crim LR 748
Freckleton, I “Rationality and Flexibility in Assessment of Fitness to Stand Trial” (1996) 19 International Journal of Law and Psychiatry, 39

R v Griffith [2008] ACTSC 77
R v Steurer (2009) 3 ACTLR 272
Campbell v Fortey (1987) 85 FLR 462
Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149
Stead v State Government Insurance Commission (1986) 161 CLR 141
R v P (1991) 105 FLR 12
R v Khallouf [1981] VR 360
R v Forrester (1982) 31 SASR 312
Official Solicitor to the Supreme Court v K & Anor [1965] AC 201
The Queen v Commonwealth Conciliation and Arbitration Commission & Ors; Ex parte The Angliss Group (1969) 122 CLR 546
McClymont v The Owners of Strata Plan No 12139 (2009) 74 NSWLR 404
Wakeley and Bartling v The Queen (1990) 93 ALR 79
Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284
Eastman v The Queen (2000) 203 CLR 1
R v Taylor (1992) 77 CCC (3d) 551
R v Miller (No 2) [2000] SASC 152
R v Polanski [1999] NSWSC 433
R v T (2000) 109 A Crim R 559
R v McKitterick (2004) 36 SR(WA) 115
R v Dunne [2001] WASC 263
Ngatayi v The Queen

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 Egan v JG

Details

AGLC: Egan v JG [2010] ACTSC 53
Case: [2010] ACTSC 53
Decision Date: 18 JUNE 2010

CaseChat Overview and Summary

In the matter of Egan v JG, the Court of Appeal for the Australian Capital Territory heard an appeal from the Magistrates Court of the Australian Capital Territory concerning a young person's fitness to plead. The appeal arose from the Magistrates Court's decision to determine that JG, a young person, was unfit to plead on criminal charges under section 311 of the Crimes Act 1900 (ACT). The case involved a procedural oversight by the Magistrates Court in failing to investigate JG's fitness to plead at the initial stage of the proceedings, leading to what was termed a miscarried process.

The legal issues before the court included whether the Magistrates Court correctly admitted a mental health report without providing an opportunity for cross-examination, whether there was an error in finding JG unfit to plead, and whether the mental health report itself was flawed. The appellant argued that these issues warranted the appeal, and the court was required to assess the validity of these arguments in light of the legislative framework and procedural fairness.

The Court of Appeal found that the Magistrates Court had indeed erred in its process by not investigating JG's fitness to plead at the outset. The court also concluded that the admission of the mental health report without an opportunity for cross-examination was a significant procedural flaw. Furthermore, the court determined that there were errors in the findings regarding JG's unfitness to plead, and that the mental health report contained flaws that undermined the basis of the original decision. Consequently, the appeal was upheld, and the case was remitted to the Magistrates Court for further proceedings.

The final orders of the court were to uphold the appeal and remit the case to the Magistrates Court for further consideration, taking into account the procedural errors and the need for a proper investigation into JG's fitness to plead. Additionally, the court issued a warning regarding the publication of identifying information about children's proceedings, pursuant to section 712A of the Criminal Code 2002 (ACT).

Orders

Orders of the court

The appeal be upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Egan v JG [2010] ACTSC 53

Most Recent Citation

R v Fisher [2011] ACTSC 56

Cases Citing This Decision

R v Mu [2021] ACTSC 144
Citation 1 (Para 1)

…The prosecution further referred to Egan v JG [2010] ACTSC 53 at [85]-[86] where Refshauge J had endorsed Penfold J’s proposition and further stated that:…
Deanne Jewel Best and Graeme Robert Cooper v Jermaine Goolagong [2013] ACTMC 2
Citation 2

…Kesavarajah v The Queen (1994) 181 CLR 230 Ngatayi v R (1980) 147 CLR 1 Bailiff v R [2011] ACTCA 7 (25 February 2011) Egan, Hawkins and Burr v JG [2010] ACTSC 53 (18 June 2010) Greig v Dziubinski [2013] ACTSC 8 (18 January 2013) R v Fisher [2011] ACTSC 56 (1 April 2011) R v Griffith [2008] ACTSC 77 R v Monaghan [2…
Ian Greig v Jason Shawn Dziubinski [2013] ACTSC 8
Citation 3 (Para 1)

…I have analysed at some length in Egan v JG [2010] ACTSC 53 and also in R v Fisher [2011] ACTSC 56 the issues that have to be addressed in relation to the application of the statutory criteria to the application. I apply the approach there expressed.…
R v Sutherland [2012] ACTSC 62
Citation 4 (Para 1)

…I have, in Egan v JG [2010] ACTSC 53, given some detailed consideration to each of the grounds. I apply those considerations.…
R v Monfries (No 2) [2011] ACTSC 205
Citation 5 (Para 1)

…p evidence so as to be able to enter an appropriate plea or take advice from a lawyer about it, but it is not a demanding test. See Egan and Ors v JG [2010] ACTSC 53 (at [86] to [90]).…
R v Shane Whitney [2011] ACTSC 105
Citation 6 (Para 1)

…As I noted in Egan, Hawkins and Burr v JG [2010] ACTSC 53 (at [94]), attention span and concentration is relevant to an assessment of whether an accused person can follow the course of the proceedings and, where a result of impairment, can justify a finding of unfitness.…
R v Fisher [2011] ACTSC 56
Citation 7 (Para 1)

…In Egan and Ors v JG [2010] ACTSC 53, I addressed the broad outlines of the approach to these issues. Similarly, Penfold J in R v Bailiff (2010) 5 ACTLR 1 (at 26; [119]) summarised what her Honour saw as the law.…

See all citing cases →

Cases Cited

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Citation 1 (Para 1)

…Such an appeal is by way of rehearing: Campbell v Fortey (1987) 85 FLR 462 (at 464-5). In Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149. I describe (at [78]) such an appeal as,…
R v Holt [2009] NSWDC 147
Citation 2 (Para 1)

…on the issue of whether the defendant is not guilty on the grounds of mental illness will not result in a finding of unfitness to plead. See R v Holt [2009] NSWDC 147 (at [28], [34]).…
McClymont v The Owners-Strata Plan No. 12139 [2009] NSWSC 276
Citation 3 (Para 1)

…ms Division of the Local Courts of New South Wales has been held to be consistent with natural justice: McClymont v The Owners - Strata Plan No 12139 (2009) 74 NSWLR 404 (at 412 [39]).…
R v Griffith [2008] ACTSC 77
Citation 4 (Para 1)

…cated on the court’s satisfaction that there is a real and substantial question about the respondent’s fitness to plead: R v Griffith [2008] ACTSC 77 (at [8]).…
R v Smith [2008] NSWDC 23
Citation 5 (Para 1)

…In R v Smith [2008] NSWDC 23, Norrish QC DCJ concluded (at [36]):…
Wills v The Queen [2007] NSWCCA 160
Citation 6 (Para 1)

…nsight into their medical condition means that they are unable to give instructions to their lawyers at the trial, they will be unfit to plead. See Wills v The Queen (2007) 173 A Crim R 208 (at 224 [80]).…
Mantell v Molyneux [2006] NSWSC 955
Citation 7 (Para 1)

…s an adjournment, as suggested in Kesavarajah v The Queen (at 246). Other forms of assistance may be prejudicial to other parties: Mantell v Molyneux (2006) 68 NSWLR 46 (at 56 [33]).…
R v Rivkin [2003] NSWSC 447
Citation 8 (Para 1)

…As the court said in R v Rivkin (2004) 59 NSWLR 284 (at 297 [298]-[301]):…
R v Dunne [2002] WASC 196
Citation 9 (Para 1)

…the reliability of the account is problematic as is their capacity to adhere to it when subjected to pressure or suggestion, as occurred in R v Dunne [2002] WASC 196 (at [26]).…
R v Dunne [2001] WASC 263
Citation 10 (Para 1)

…nderstand the substantial effect of the evidence presented by the prosecution and ... properly defend the charge assisted by counsel ”: R v Dunne [2001] WASC 263 (at [14]).…
R v Miller (No 2) [2000] SASC 152
Citation 11 (Para 1)

…in the circumstances under which it is laid. A good example, is the notion of attempt in a charge of attempted rape as was found in R v Miller (No 2) [2000] SASC 152 (at [40]) which the court found the accused there could not really understand.…
Eastman v The Queen [2000] HCA 29
Citation 12 (Para 1)

…In Eastman v The Queen (2000) 203 CLR 1 (at [26]-[27]) Gleeson CJ noted that the following propositions, enunciated in R v Taylor (1992) 77 CCC (3d) 551 (at 564-5), were “sound, and ... consistent with the statutory test”:…
R v Polanski [1999] NSWSC 433
Citation 13 (Para 1)

…forensic circumstances of what that entails. It is also bound up in the context of the trial itself. As Wood CJ at CL said (at [54]) in R v Polanski [1999] NSWSC 433:…
Kesavarajah v The Queen [1994] HCA 41
Citation 14 (Para 1)

…bstance of these criteria and not compliance with some verbal formula that is required. After all, as the High Court noted in Kesavarajah v The Queen (1994) 181 CLR 230 (at 245), the minimum standards for fitness to plead are based on what Alderson B said in R v Pritchard (1836) 7 Car FP 303 (at 304); 173 ER 135 (at…
Wakeley v The Queen [1990] HCA 23
Citation 15 (Para 1)

…In any event, a court has power to limit cross-examination, as was noted by the High Court in Wakeley and Bartling v The Queen (1990) 93 ALR 79. Thus (at 86) the court said:…
Stead v State Government Insurance Commission [1986] HCA 54
Citation 16 (Para 1)

…appellants were denied natural justice. The principles in such a case are set out by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 where the court said (at 145):…
Ngatayi v The Queen [1980] HCA 18
Citation 17 (Para 1)

…can be provided to the defendant, unless, of course, that assistance is unavailable, such as for an unrepresented defendant: see Ngatayi v The Queen (1980) 147 CLR 1 (at 9).…
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10
Citation 18 (Para 1)

…t fixed, however, as was held by the High Court in The Queen v Commonwealth Conciliation and Arbitration Commission & Ors; Ex parte The Angliss Group (1969) 122 CLR 546 where Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said (at 552):…
Wakeley v The Queen; Bartling v The Queen [1990] HCATrans 76
Citation 19 (Para 1)

…In any event, a court has power to limit cross-examination, as was noted by the High Court in Wakeley and Bartling v The Queen (1990) 93 ALR 79. Thus (at 86) the court said:…
[1957] 2 QB 55 [1957] 2 QB 55
Citation 20

…licable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55, at p 67], in these terms: There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case pr…
[1965] AC 201 [1965] AC 201
Citation 21 (Para 1)

…eport to be subject to cross-examination. The court still has a duty to act fairly and judicially: Official Solicitor to the Supreme Court v K & Anor [1965] AC 201 (at 237-8).…
173 ER 135 173 ER 135
Citation 22 (Para 1)

…94) 181 CLR 230 (at 245), the minimum standards for fitness to plead are based on what Alderson B said in R v Pritchard (1836) 7 Car FP 303 (at 304); 173 ER 135 (at 135), namely:…
[1992] 1 NZLR 760 [1992] 1 NZLR 760
Citation 23 (Para 1)

…stice Act 1954 (NZ). This has been interpreted to mean that a person is not fit to plead if what is communicated to counsel is unwise: R v Carrel [1992] 1 NZLR 760 (at 767). This does not apply in Australia as noted above (at [74]). As was said in Ngatayi v The Queen (at 8), an accused does not have to have the capa…

Legislation Cited

Crimes Act 1900 (ACT) 311, 311(2), 314(1), 315A(1)(a), 315A(1)...
7 mentions (from Para 1)
Evidence Act 1995 (Cth) 190, 190(2), 29, 41, 8(4)(b)
6 mentions (from Para 1)
Criminal Justice Act 1954 (NZ) 39A
2 mentions (from Para 1)
Human Rights Act 2004 (ACT) 21
2 mentions (from Para 1)
ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT)
1 mention (from Para 1)
Crimes Amendment Act 2005 (ACT)
1 mention (from Para 1)
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)
Mental Health (Treatment and Care) Act 1994 (ACT)
1 mention (from Para 1)