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

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

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 Kirkwood v R

Details

AGLC: Kirkwood v R [2006] NSWCCA 181
Case: [2006] NSWCCA 181
Decision Date: 7 June 2006

CaseChat Overview and Summary

The case of Kirkwood v R saw the defendant, Kirkwood, appealing against a sentence handed down following his guilty plea in the District Court. The nature of the dispute was centred around the sentencing of Kirkwood, who had pleaded guilty to an offence under section 97(1) of the Crimes Act 1900. The appeal was based on new evidence that raised questions about his fitness to be tried at the time of his plea. The legal issues before the court were whether the evidence presented on appeal was sufficient to satisfy the test for fitness to be tried as established in R v RTI.

The court examined the evidence and applied the test for fitness to be tried, which was set out in R v RTI. This test requires the court to determine whether the defendant had an understanding of the nature and object of the proceedings, the likely consequences of the proceedings, and whether they could make a rational contribution to their own defence. The court found that Kirkwood's fitness to be tried was indeed questionable given the new evidence. The court's reasoning was based on the fact that Kirkwood's mental state at the time of the plea may have been impaired, which would have affected his ability to understand the proceedings and make a rational contribution to his own defence.

As a result, the court allowed the appeal and ordered a new trial, ruling that Kirkwood's fitness to be tried was in doubt. The court found that the evidence presented on appeal was sufficient to satisfy the test for fitness to be tried as established in R v RTI. The final orders of the court were that Kirkwood's conviction be quashed and that a new trial be held.

Orders