Justin Anthony FIRTH v RG - [2018] NTLC 29

CITATION: Justin Anthony Firth v RG [2018] NTLC029
PARTIES:Justin Anthony FIRTH
v
RG

TITLE OF COURT:  Local Court
JURISDICTION:  Criminal
FILE NO(s):21641732, 21712182
DELIVERED ON:  12 Feb 2018
DELIVERED AT:  Darwin
HEARING DATE(s):  17 October 2017
JUDGMENT OF:  Chief Judge Lowndes
CATCHWORDS:
CRIMINAL LAW – APPLICATION FOR STAY OF PROCEEDINGS IN THE
LOCAL COURT – POWER OF THE LOCAL COURT TO GRANT A
PERMANENT STAY – FITNESS TO BE TRIED.
Criminal Code s 43J, 43K, 43L, 43M and 43N(1)
Local Court (Criminal Procedure) Act ss 121A(1), 122A, 131A(1), (2) and (3)
R v KF [2011] NSWLC 14 considered
Jago v District Court of NSW (1989) 168 CLR 23 followed
DPP v Shirvanian (1998) 44 NSWLR 129 followed
Eastman v R [2000] 203 CLR 1 considered
R v Presser [1958] VR 45 considered
Pioch v Lauder (1976) 13 ALR 266 considered
Ebatarinja v Deland [1998] 194 CLR 444 considered
REPRESENTATION:
Counsel:
Complainant:  Mr I Rowbottam
Defendant:Ms B Wild

Solicitors:
Complainant:  DPP
Defendant:NAAJA
Judgment category classification:       B
Judgment ID number:[2018] NTLC 029
Number of paragraphs:   95

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21641732, 21712182
BETWEEN:

Justin Anthony Firth
Complainant
AND:
RG

Defendant

REASONS FOR JUDGMENT
(Delivered 12 February 2018)

CHIEF JUDGE LOWNDES
APPLICATION FOR STAY OF PROCEEDINGS IN THE LOCAL COURT

The defendant was charged with having committed the following offences on 31 August 2016:
1. Unlawfully assaulting Cassandra Prideaux, with circumstances of aggravation (contrary to s 188 (2) of the Criminal Code).[1]
2. Threatening to kill a person, namely Cassandra Prideaux (contrary to s 166 of the Criminal Code).[2]
3. Behaving offensively (s 47(d) of the Summary Offences Act).[3]
The defendant was also charged with having committed these offences on 28 February 2017:
1. Unlawfully assaulting Stuart Cameron, who was working in the performance of his duties (contrary to s 188A(1) and (2)(b) of the Criminal Code).[4]
2. Unlawfully assaulting Stuart Cameron (contrary to s 188(1) of the Criminal Code).[5]
An application was made on behalf of the defendant to have the criminal proceedings in the Local Court permanently stayed on the basis of the defendant’s cognitive impairment, which is claimed to render him unfit to be tried.
The defence argues that the Local Court has the power to stay proceedings before it where the question of a defendant’s fitness to be tried is raised. It is argued that in the absence of a statutory power in the Local Court to address the defendant’s fitness to be tried (a power which is possessed by the Supreme Court), it would be unfair or unjust to continue with the proceedings in the Local Court in a summary manner, and equally unfair or unjust to commit the defendant for trial in the Supreme Court in relation to the indictable charges for the purposes of addressing the defendant’s fitness to be tried.
The following submissions were made on behalf of the defendant on the matter of unfairness:[6]
1. If the defendant cannot…

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.

Keep reading for free

Create a free CaseChat account to read Justin Anthony FIRTH v RG and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NTLC 29
Decision Date: 12 Feb 2018

CaseChat Overview and Summary

In the matter of Justin Anthony Firth versus RG, the court was tasked with determining the defendant's fitness to be tried in relation to various charges. The dispute centred on whether the defendant's mental condition rendered him unfit to stand trial, thus justifying a permanent stay of the proceedings. The case was heard in the Local Court of the Northern Territory, where the Chief Judge, Dr John Lowndes, delivered the decision.

The legal issues that the court had to resolve included whether the defendant was fit to be tried under the current legislative framework and whether the absence of a statutory process for assessing fitness to be tried in the Local Court warranted a permanent stay of the proceedings. The court had to consider the implications of the defendant's mental health on his ability to participate in the trial and whether the current legal provisions adequately addressed such issues.

Dr Lowndes held that there was insufficient evidence to conclude that the defendant was unfit to be tried, rejecting the application for a permanent stay. The court noted the absence of a statutory process for determining fitness to be tried in the Local Court, highlighting a legislative gap that could potentially lead to unjust outcomes. The decision underscored the importance of satisfying the threshold requirement of the defendant's unfitness to be tried before granting a permanent stay, as the consequences of such a stay are significant. The court's refusal of the permanent stay application indicates a cautious approach to applications based on unfitness to be tried, particularly in the absence of a statutory mechanism to address such issues.

The court ordered that the parties should be heard on any consequential orders or directions necessary for the future progress of the matter, leaving the door open for further considerations regarding the defendant's fitness and the procedural steps to follow.

Orders

Orders of the court

Full text does not contain this section.

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

In conclusion, this case reveals a lacuna or hiatus in the current legislation governing fitness to be tried. There is no statutory process for determining a defendant’s fitness to be tried in the Local Court in relation to summary offences or indictable offences that are capable of being heard and determined summarily. The Northern Territory Law Reform Committee recommended that such a process be introduced by legislation;[42] but to date that recommendation appears not to have been adopted. As stated earlier, the current deficiency could be solved by a simple legislative amendment conferring power on the Local Court to investigate and determine the question of fitness to be tried and make consequential orders. DECISION The application for a permanent stay in relation to all the charges is refused. I will hear the parties as to any consequential orders or such directions as are necessary for the future progress of this matter. Dated 12 February 2018………………………………..Dr John LowndesChief Judge of the Local Court of the Northern Territory

Ratio Decidendi

Legal Principle Established

Section 43N(1) provides that the question of whether an accused person is fit to stand trial may be raised in the Supreme Court by the prosecution or the defence, or by the court, at any time after the presentation of the indictment. Subsection (2) requires the Court to order an investigation into the accused’s fitness to stand trial if:(a)the question of fitness was reserved during the committal proceedings; or(b)the Judge is satisfied that there are reasonable grounds on which to question the accused’s fitness to stand trial.CONSIDERATION OF THE APPLICATION FOR PERMANENT STAY In order to grant a permanent stay of these proceedings the Court needs to be satisfied that because of the defendant’s unfitness to stand trial it would be unfair or unjust to continue the proceedings – in other words it would be an abuse of process for the proceedings to continue; and the only option or remedy is for the Court to terminate the proceedings by granting a permanent stay. In my opinion, there is not a sufficient basis for granting a permanent stay. A threshold requirement is that the court must be satisfied on the evidence before it that the defendant is unfit to be tried. The need for such satisfaction is self-evident because of the ramifications of a permanent stay. In Pioch v Lauder (1976) 13 ALR 266 it was clear that the defendant was not fit to plead, and as the charge in question was a simple offence that could only be dealt with summarily – and there was no statutory mechanism in the Court of Summary Jurisdiction to address the defendant’s fitness to plead – it was concluded that the magistrate should go no further and desist from hearing and determining the charge. This was in effect a stay of the proceedings based on the demonstrated unfitness of the defendant to plead. Similarly, in KF [2011] NSWLC 14 Magistrate Heilpern declined to grant an application for a permanent stay of proceedings as he was not satisfied that the defendant was unfit to be tried or that the defendant could not receive a fair trial.[17] During the course of his judgment, the Magistrate pointed out the practical and evidential problems in the Local Court when dealing with applications for a permanent stay based on unfitness to be tried, and highlighted the need to exercise caution in dealing with such applications, principally because “the result of a successful application is that the proceedings are stayed or the defendant is discharged”, and “there is no supervisory regime” as in the higher courts where there is a statutory process to deal with the question of an accused’s fitness to stand trial.[18] The Magistrate’s decision underscores the need for a court to be satisfied as to the defendant’s fitness to be tried before granting a permanent stay. In my opinion, there is insufficient evidence to show that the defendant in the present case is unfit to be tried in the Presser sense.[19] In R v Presser [1958] VR 45 at 48 Smith J set out the criteria for a defendant’s fitness to be tried:He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.