R (Commonwealth) v Fielder - [2022] NSWDC 689

District Court

New South Wales

Medium Neutral Citation: R (Commonwealth) v Fielder [2022] NSWDC 689
Hearing dates: 23 November 2022
Date of orders: 23 November 2022
Decision date: 23 November 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The following findings were made:
1. Mr Fielder is unfit to be tried
2. There is a prima facie case in each matter.
3. It is not appropriate that the charges be otherwise dismissed.
4. Mr Fielder will not become fit within 12 months
5. Mr Fielder should not be detained in a hospital
6. Mr Fielder be released on conditions
Orders and conditions at [52]-[53]

Catchwords:
CRIME - Possess/control child abuse material-use carriage service - Use carriage service to solicit child abuse material - fitness to be tried
MENTAL HEALTH - Criminal proceedings – Commonwealth offences - fitness to be tried – procedures to be applied – Crimes Act 1914 Cth provisions applied - Mental Health and Cognitive Impairment Forensic Provisions Act(NSW) provisions picked up and applied
MENTAL HEALTH — Criminal proceedings - fitness to be tried – person unfit to be tried - person will not be fit to be tried in 12 months - not appropriate to dismiss charges - conditional release

Legislation Cited:
Crimes Act 1900 NSW
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Evidence Act 1995 NSW
Judiciary Act 1903 (Cth)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020(NSW)

Cases Cited:
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18
R v Presser [1958] VR 45

Category: Principal judgment
Parties: Michael Fielder (the defendant)
Commonwealth Director of Public Prosecutions
Representation:
Counsel:
Mr A Brown (for Commonwealth Director of Public Prosecutions)
Solicitors:
Mr P Schmidt, Kells (for the defendant)

File Number(s): 2021/00328429

JUDGMENT – Ex tempore revised

Introduction

Three serious criminal charges have been brought against Michael Fielder pursuant to the Commonwealth Criminal Code Act 1995 (Criminal Code). It is not in dispute that Mr Fielder has a cognitive impairment arising from an intellectual disability: s 5(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
The charges are set out in three Court Attendance Notices (CAN) - sequences 2, 3 and 4: part of Prosecution exhibit A. Sequences 2 and 3 are charged pursuant to s 474.22A Criminal Code - possession or control of child abuse material. Sequence 2 relates to data held in a Mr Fielder’s mobile phone in an Instant messaging and social networking Application folder. Sequence 3 charged pursuant to s 474.221 Criminal Code – soliciting child abuse material using a carriage service - relates to video files and images stored on the phone. Sequence 4 - using a carriage service to obtain or access the material - relates to SMS a conversation Mr Fielder had with another SMS user in which in sexually explicit terms referred to spanking young children.
The first CAN covers the period 15 March 21 to…

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 R (Commonwealth) v Fielder

Details

AGLC: R (Commonwealth) v Fielder [2022] NSWDC 689
Case: [2022] NSWDC 689
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of R (Commonwealth) v Fielder involved a criminal prosecution against the accused, Mr. Fielder, for possessing and controlling child abuse material and using a carriage service to solicit such material. The case was heard in the Federal Court of Australia, where the central issue was Mr. Fielder's fitness to be tried.

The court was tasked with determining whether Mr. Fielder was fit to stand trial and, if not, whether it was appropriate to dismiss the charges or to impose conditions for his release. The legal issues included the application of the provisions of the Crimes Act 1914 (Cth) and the Mental Health and Cognitive Impairment Forensic Provisions Act (NSW) in determining the accused's fitness to be tried and the appropriate course of action if he was deemed unfit.

In its reasoning, the court found that Mr. Fielder was unfit to be tried due to his mental health conditions. It also concluded that there was a prima facie case against him in each matter. The court determined that it was not appropriate to dismiss the charges and that Mr. Fielder would not become fit to be tried within the next twelve months. Furthermore, the court decided that it was not appropriate for Mr. Fielder to be detained in a hospital and ordered his conditional release.

The final orders included findings that Mr. Fielder was unfit to be tried, that there was a prima facie case in each matter, that it was not appropriate to dismiss the charges, that Mr. Fielder would not become fit within 12 months, that he should not be detained in a hospital, and that he be released on conditions. The specific conditions of release were outlined in the court's orders at paragraphs 52 and 53.

Orders

Orders of the court

The following findings were made:

1. Mr Fielder is unfit to be tried

2. There is a prima facie case in each matter.

3. It is not appropriate that the charges be otherwise dismissed.

4. Mr Fielder will not become fit within 12 months

5. Mr Fielder should not be detained in a hospital

6. Mr Fielder be released on conditions

Orders and conditions at [52]-[53]

Background

Background to the litigation

Full text does not contain this section.

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:	R (Commonwealth) v Fielder [2022] NSWDC 689
Hearing dates:	23 November 2022
Date of orders:	23 November 2022
Decision date:	23 November 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The following findings were made: 1. Mr Fielder is unfit to be tried 2. There is a prima facie case in each matter. 3. It is not appropriate that the charges be otherwise dismissed. 4. Mr Fielder will not become fit within 12 months 5. Mr Fielder should not be detained in a hospital 6. Mr Fielder be released on conditions Orders and conditions at [52]-[53]
Catchwords:	CRIME - Possess/control child abuse material-use carriage service - Use carriage service to solicit child abuse material - fitness to be tried MENTAL HEALTH - Criminal proceedings – Commonwealth offences - fitness to be tried – procedures to be applied – Crimes Act 1914 Cth provisions applied - Mental Health and Cognitive Impairment Forensic Provisions Act(NSW) provisions picked up and applied MENTAL HEALTH — Criminal proceedings - fitness to be tried – person unfit to be tried - person will not be fit to be tried in 12 months - not appropriate to dismiss charges - conditional release
Legislation Cited:	Crimes Act 1900 NSW Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Evidence Act 1995 NSW Judiciary Act 1903 (Cth) Mental Health and Cognitive Impairment Forensic Provisions Act 2020(NSW)
Cases Cited:	Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Michael Fielder (the defendant) Commonwealth Director of Public Prosecutions
Representation:	Counsel: Mr A Brown (for Commonwealth Director of Public Prosecutions) Solicitors: Mr P Schmidt, Kells (for the defendant)
File Number(s):	2021/00328429