Kirkwood v R

[2006] NSWCCA 181

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Kirkwood v R [2006]  NSWCCA 181

FILE NUMBER(S):
2006/818
2006/1230

HEARING DATE(S):            7 June 2006

DECISION DATE:     07/06/2006
EX TEMPORE DATE:        07/06/2006

PARTIES:
Jarrad Kirkwood (Appellant)
Regina (Respondent)

JUDGMENT OF:      McClellan CJ at CL Johnson J Latham J   

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S):       Not Applicable

LOWER COURT JUDICIAL OFFICER:     Not Applicable

COUNSEL:
Ms J Manuell (Appellant)
Mr P Barrett (Respondent)

SOLICITORS:
Legal Aid Commission of New South Wales (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
APPEAL AND NEW TRIAL - offence under s.97(1) Crimes Act 1900 - sentenced following plea of guilty in District Court - evidence on appeal raising question concerning fitness to be tried - test in R v RTI (2003) 58 NSWLR 438 satisfied

LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1986
Mental Health (Criminal Procedure) Act 1990

DECISION:
Conviction quashed and new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/818
2006/1230

McCLELLAN CJ at CL
JOHNSON J
LATHAM J

7 June 2006

JARRAD KIRKWOOD v REGINA

Judgment

1. McCLELLAN CJ at CL:  The Court is in a position to give judgment now.  I will ask Justice Johnson to give the first judgment.

2. JOHNSON J:  The Appellant, Jarrad Kirkwood, pleaded guilty to two offences and was sentenced to terms of imprisonment for each offence.  He appealed to this Court against conviction and contended that a question had been raised about the propriety of his convictions because he may have been unfit to be tried.

3. The first conviction under appeal relates to an offence of carjacking in circumstances of aggravation under s.154C(2) Crimes Act 1900. This offence was prosecuted summarily against the Appellant and comes before the Court by reference under s.474E(1)(b) Crimes Act 1900. The sentence imposed with respect to this matter has expired.  At the commencement of the hearing today, Ms Manuell, counsel for the Appellant, informed the Court that this appeal was abandoned. 

4. The second conviction relates to an offence of assault with intent to rob whilst armed with an offensive weapon, under s. 97(1) Crimes Act 1900. 

5. Given the evidence which is before the Court today, it is not necessary to expand upon the circumstances of that alleged offence and the procedural history of the matter in the Local Court and the District Court. It is sufficient for present purposes to note that, on 24 August 2005, the Appellant pleaded guilty to that charge in the Newcastle Local Court and was committed for sentence to the District Court under s.102 Criminal Procedure Act 1986. The Appellant came before Acting Judge Andrew on 20 October 2005. His Honour was informed that the Appellant had pleaded guilty to the charge and that he adhered to that plea for the purposes of s.105 Criminal Procedure Act 1986.

6. On 21 October 2005, his Honour imposed a sentence of imprisonment for three years with a non-parole period of one year, with the non-parole period to date from 16 July 2005. 

7. An appeal against conviction was lodged in this Court, raising the question of the Appellant’s fitness to be tried in August and October 2005.

8. Until evidence was given today by Dr Olav Nielssen, forensic psychiatrist, it was the fact that there was no evidence from a psychiatrist before this Court which indicated that the Appellant was unfit to be tried in August or October 2005, by reference to the relevant test contained in R v Presser (1958) VR 45 at 48.

9. Until today, the Crown had quite appropriately taken the stance that there was no evidentiary basis for this Court to intervene because of a question about the Appellant’s fitness to be tried. 

10. The Appellant suffers from Asperger’s Syndrome and has been diagnosed, from time to time, over a number of years as suffering from a range of psychiatric disorders. He has, on occasions in 2000 and 2001, been found unfit to be tried with respect to other criminal proceedings in the District Court. He has, on occasions, been dealt with under s.32 Mental Health (Criminal Procedure) Act 1990 in the Local Court with respect to other criminal proceedings.  Despite that background, there was no psychiatric evidence until today directly reflecting upon his fitness to be tried at the times when pleas of guilty were entered for this matter in 2005.

11. Dr Nielssen examined the Appellant in 2000 and in 2001 and had formed the view, for the purpose of other criminal proceedings, that the Appellant was unfit to be tried.  He has had access to records of Justice Health concerning the Appellant for periods between July and October 2005.  In his evidence today, Dr Nielssen expressed the opinion, by reference to the Presser test, that it is more probable than not that, as at 24 August 2005 and 20 October 2005, the Appellant was unfit to be tried. 

12. With the benefit of Dr Nielssen’s evidence, the Crown accepts that there is now an evidentiary basis to support the appeal.  The fact that the Appellant pleaded guilty in the Local Court can be put to one side and cannot operate as an impediment in this appeal, given the evidence which has now been given by Dr Nielssen.

13. The test to be applied by the Court in these circumstances is clear.  If there is material before the Court which raises a question about the propriety of a conviction on the basis that the Appellant may have been unfit to stand trial, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the trial court, acting reasonably, must have found that the Appellant was fit to stand trial:  R v RTI (2003) 58 NSWLR 438 at 449; R v Rivkin (2004) 59 NSWLR 284 at 296; R v Henley [2005] NSWCCA 126 at paragraph 4.

14. In light of Dr Nielssen’s evidence, the Crown has accepted that this test is satisfied and that the conviction should be quashed. 

15. In those circumstances, I propose that the conviction be quashed and a new trial ordered. As Hunt AJA observed in Henley at paragraph 15, it is contemplated by such orders that the provisions of the Mental Health (Criminal Procedure) Act1990 or any other relevant statute, will come into play in relation to the Appellant’s fitness to be tried in any such new trial.

16. McCLELLAN CJ at CL:  I agree with Justice Johnson.

17. LATHAM J:  I also agree.

18. McCLELLAN CJ at CL:  Accordingly the orders of the Court are those proposed by Justice Johnson.

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LAST UPDATED:            08/06/2006