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

1. 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).

2. 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.

3. The first CAN covers the period 15 March 21 to 10 June 21. The second CAN covers the period 25 February 2018 to 18 November 21. The third CAN’s events occurred on 17 November.

4. The allegations are serious. Each of the alleged offences carries a maximum penalty of 15 years imprisonment.

5. Given his cognitive impairment the issue of Mr Fielder’s fitness to enter pleas to the charges was raised in good faith when the matter was before the Local Court. The matter was then referred to this Court pursuant to s 20B(1) Crimes Act 1914.

A multi-staged approach

6. When such matters come before this Court for Commonwealth prosecutions dealt with in New South Wales a multi-staged process must be followed.

7. The first stage requires a determination be made about whether the defendant is presently unfit to be tried; s 20B(3) Crimes Act 1914.

8. This question must be determined according to the relevant State legislation in jurisdiction where the proceedings are commenced and conducted: ss 68 & 79 Judiciary Act 1903 Cth. Accordingly, in New South Wales the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the MHCIFP Act) applies to this proceeding and the question of fitness is determined by applying ss 36 and 44(5) of that Act.

9. If I find the defendant unfit the second stage of the Commonwealth fitness regime requires that I determine whether a prima facie case that the defendant committed an alleged offence, has been established; s 20B(3) Crimes Act 1914.

10. A prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence; s 20B(6) Crimes Act 1914.

11. In making that determination I take the evidence presented to me at its highest. I also take into account the matters set out in s 20B(7) Crimes Act 1914. Section 20B(7) reads as follows:

In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:

(a) the person may give evidence or make an unsworn statement; and

(b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and

(c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.

12. A third stage is reached if I find a prima facie case has been established. I must then make an assessment about whether the charge should be otherwise dismissed having regard to the considerations in s 20BA(2) Crimes Act 1914. Section 20BA(2) reads as follows;

Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to:

(a) the character, antecedents, age, health or mental condition of the person; or

(b) the extent (if any) to which the offence is of a trivial nature; or

(c) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.

13. If I decide not to dismiss the charge the fourth stage requires I then assess whether on balance the defendant is likely to become fit within 12 months of the finding of unfitness; s 20BA(4) Crimes Act 1914. Section 20 BA(4) reads:

20BA(4) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.

14. I cannot make this determination unless I have obtained and considered written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner; s 20BA(5).

15. The fifth stage is in two alternative parts. If I find the defendant will become fit within 12 months I follow the procedures outlined in s 20BB. If I find he will not become fit within 12 months, I follow the procedures set out in s 20BC.

16. Section 20BC(1) requires I determine whether he is a person suffering from a mental illness or mental condition for which treatment is available in a hospital, and whether the person objects to being detained. Section 20BC reads

Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine:

(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and

(b) if so—whether the person objects to being detained in a hospital.

(2) Where a court has made a determination under subsection (1), the court must:

(a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or

(b) otherwise—order that the person be detained in a place other than a hospital, including a prison;

for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.

Section 20BC (5), is applicable here:

“Despite subs (2), the Court may, if in the Court’s opinion it is more appropriate to do so than to make an order under subs (2), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the Court specified in the order, not exceeding 3 years.

And s20BC(6) says:

“The conditions may include:

(a) a condition that the person remain I the care of a responsible person nominated in the order, and

(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment, and

(c) any other order that the Court thinks fit”.

A fitness hearing

17. The proceedings here were conducted on the papers. The parties were in agreement as to the position that should be adopted by the Court. And, while I have to make my own independent judicial decision, that process has been here properly informed by the material presented to me and the attitude of the parties. Mr Fielder is represented by an Australian legal practitioner, Mr Schmidt. Mr Brown, of counsel, instructed by Mr Chen, appears for the Commonwealth Director of Public Prosecutions. Mr Brown provided me with a helpful submission on appropriate procedures. They have informed this judgment .

18. Although I follow the Crimes Act 1914 in relation to the staged approach noted I am also obliged to consider and apply the fitness provisions of MHCIFP Act.

19. The question of the defendant’s unfitness to be tried for an offence is to be determined by a judge alone; s 44(1) MHCIFP Act.

20. The inquiry is not to be conducted in an adversarial manner; s 44(3) MHCIFP Act.

21. The onus of proof of the question of the defendant’s unfitness to be tried for an offence does not rest on any particular party to the proceedings; s 38 MHCIFP Act.

22. The fitness test is set out in s 36 of the MHCIFP Act:

(1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—

(a) understand the offence the subject of the proceedings,

(b) plead to the charge,

(c) exercise the right to challenge jurors,

(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

(e) follow the course of the proceedings so as to understand what is going on in a general sense,

(f) understand the substantial effect of any evidence given against the person,

(g) make a defence or answer to the charge,

(h) instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,

(i) decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

23. The test does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence; the State provisions, in effect, mirror the common law position, often referred to as the “Presser test”; R v Presser [1958] VR 45.

24. In determining whether the defendant is unfit to be tried for an offence I must also consider:

(a) whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial,

(b) the likely length and complexity of the trial,

(c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner; s 44 MHCIFP Act.

25. These matters mirror what fell from the High Court in Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 and Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41.

26. Any determination I make must include the principles of law applied and findings of fact on which I rely; s 44 MHCIFP Act.

Evidence and Submissions

27. I have been assisted by the reports of two respected psychiatrists; Dr Nielssen, exhibit B, and Dr Ellis and a psychological assessment of Mr Webb, provisional psychologist; exhibits A and C. There is no issue that all the experts noted have training and experience in their relative fields.

28. I have been assisted by written submissions from Mr Brown for the Commonwealth Director and oral submissions from both advocates. There are, so far as they are concerned, no significant issues. They both take the view, which is shared by the two forensic psychiatrists, that Mr Fielder is unfit to be tried and that given the nature of his cognitive impairment he will not become fit within 12 months.

29. Dr Nielssen, having considered the criteria in the MHCIFP Act concluded, at [22]: “Mr Fielder is unfit for trial according to the criteria set out in s 36.”

30. He noted that there was no suggestion Mr Fielder was attempting to exaggerate his level of disability. He noted a bizarre fetish and a disabling form of intellectual disability. He confirmed that Mr Fielder’s intellectual disability is a cognitive impairment.

31. With regard to the s 36 MHCIFP Act criteria he noted Mr Fielder was aware that he was in some kind of trouble with the police but that he was unable to explain the charges. He said that it was not clear that Mr Fielder understood that he had committed an offence. He said Mr Fielder was unable to provide even a basic account of the procedure followed in a trial, although he was assessed as able to understand and retain advice from his legal representations about specific procedures. He noted Mr Fielder seemed to understand the general nature of the proceedings, but that Mr Fielder has a condition that can affect his ability to concentrate and retain information.

32. Dr Nielssen concluded that Mr Fielder’s problems were unlikely to be overcome by any change to the Court routine, for example by allowing extra breaks. He found that Mr Fielder would be unable to understand the substantial effects of the evidence given against him in court. He said while Mr Fielder may be able to make a basic version of events known, he was unable to provide reliable instructions to his legal representations, or give ongoing instructions based on information presented during the trial. He was assessed as being unable to decide on which defence to rely, given he had little capacity to understand why he had been charged.

33. Dr Ellis, having applied a similar criterion, agreed with the conclusions reached by Dr Nielssen:

“I have come to the same diagnostic conclusion opinion regarding fitness as Dr Nielssen. There are minor discrepancies in the history reported, however, these are likely due to recall issues and are not significant as to alter the clinical opinion.”

Stage 1. The fitness determination- s 20BA(3) - S36 and 44(5) MHCIFP Act

34. I must make my own determination as to whether or not Mr Fielder is fit for trial. The tests I apply, as set out in the, are directed to the minimum requirements for a fair trial.

35. I note the three charges raise several complex legal and factual matters. The defendant’s cognitive impairment will, as both psychiatrists indicate, mean that a fair trial in the ordinary sense is impossible and

36. Given the evidence and the expert opinions I find that Mr Fielder is not at present able to make a defence or answer the charge. He is not able to do this through his counsel, by giving necessary instructions, or by letting his lawyer know what his version of the facts is. Should it become necessary, he does not have the capacity to tell the Court what his version of events is. I find that he does not have sufficient capacity to decide what his defence will be or to make a defence to or properly enter a plea of guilty to the charge.

37. Accordingly, I find Mr Fielder is not fit to stand trial.

Stage 2. The prima facie case determination - s20BA(3)

38. I make this determination based on the Crown Case in exhibit A - statement and the expert Reports.

39. The defendant’s residence was subject of a search warrant executed on 18 November 2021. During the course of the search warrant two devices were located, a tablet and a mobile phone. The tablet contained historic Google searches including under the search term “kids having sex.” The mobile phone included a certain app, for which the defendant had an account. An image gallery and files, which contained child abuse material, were located in it (sequence 2). The phone also, on examination, revealed further files containing child abuse material, including videos. Some of that material was extremely graphic (sequence 3). Chat logs were also located on the phone which included the SMS exchange which, founded the third charge (sequence 4).

40. Having examined the material exhibited, I can, for the reasons advanced by Mr Brown in his written submissions, which were not challenged by the defence, find that the prima facie case was made. Mr Brown’s submissions noted at 22 and 23:

“ 22... Insofar as sequences 2 and 3 are concerned (the possession offences):

a. The accused was in possession of the Samsung phone on which the child abuse material was found and the accused provided a password for the device;

b. The accused was logged into his Google account on the phone when it was seized;

c. The accused had a “Kik” profile and the Sequence 2 material was found in the gallery associated with the “Kik” app;

d. The accused made admissions that “maybe one or two” child abuse images “might” be found on his phone; and

e. Based on the descriptions of the material contained in the Crown Case Statement, the material clearly constitutes “child abuse material” for the purposes of the Criminal Code.

23. As to the solicitation offence (Sequence 4), the SMS messages were sent from the phone of the accused and included the express request, “Can I see you give a smack to the 10 year old maybe” and, in response to a request for a video of the accused, the further request, “Only if I can see a smack on the bum”.

41. Accordingly, I find that there is a prima facie case.

Stage 3. The determination - should he charges be dismissed s20BA(4) and s20BA (4)

42. Having found a prima facie case I must consider whether, having regard to the considerations in s20BA(2), if a finding of guilt was made whether it would be inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment. If so, the charges could be otherwise dismissed:

43. I note the material discovered on the defendant’s phone was deliberately accessed or engaged in. The child abuse material found involved images or videos depicting sexual activity with children of considerable seriousness. The SMS conversation although imaginary could be described as trivial. The maximum penalties available makes clear how seriously child abuse material offences are regarded.

44. While I understand and appreciate the many difficulties Mr Fielder faces, the fact that he has an intellectual disability and is unfit for trial does not mean he cannot learn. It is clear from the material I have read that he is still amenable to direction, instruction and, with assistance, can change his behaviour and patterns of behaviour. It appears that he is able to comprehend there are things he can do and things he cannot do. He is amenable therefore to what were these criminal proceedings, or had proceeded as criminal proceedings, are commonly referred to as specific deterrence.

42. There is utility on having restrictions being placed upon him and those restrictions would, if dealt with at law, commonly be regarded as a punishment. The matters should not be dismissed at this stage.

Stage 4. The determination about the possibility the defendant become will fit within 12 months - s20BA(4)

46. The expert evidence and the submissions of counsel are also as one on the issue of whether Mr Fielder will become fit within 12 months. He will not. I can comfortably conclude his position will not change. And, I make that determination. On the evidence before me no other finding is possible, given his intellectual disability and the nature of his cognitive impairment.

Stage 5. The determination whether detention and treatment in a hospital is required - s20BC

47. In Dr Ellis’ opinion, Mr Fielder’s intellectual disability is not the type that would be treated in a hospital. Dr Nielssen concludes that his current treatment plan, under the NDIS, is a fairly optimal treatment plan for his condition.

48. The prosecution position is that in all the circumstances detention would not advance any of Mr Fielder’s treatment needs nor or is detention necessary for community protection, at this stage. Understandably, Mr Schmidt does not disagree with that position.

49. In all the circumstances I agree.; detention, while an option, is not one that I could, on the material before me, seriously entertain, at this stage.

50. It is appropriate, in my opinion, that Mr Fielder be released subject to conditions. And, given the longstanding nature of his underlying disability and the serious nature of the allegations made against him, that period should be for a maximum of three years from today’s date.

51. In discussion, Mr Schmidt proposed, and Mr Brown for the Commonwealth Director, accepted that appropriate conditions can be formulated. They were discussed with the parties, and I will impose the agreed conditions when I make my formal orders.

Orders

52. Formal orders of the court:

1. I find Mr Fielder’s to be unfit to be tried on the present three charges.

2. I find that there is a prima facie case in each matter.

3. I find that it is not appropriate the charge should be otherwise dismissed having regard to the considerations in s20BA(2), Crimes Act 1914

4. I find that Mr Fielder will not become fit within 12 months

5. I find that Mr Fielder’s Intellectual disability, it's not the type that would be treated in hospital.

6. I consider it more appropriate to release Mr Fielder subject to the following conditions for a period of three years.

1. The defendant remain in the care of a responsible person, namely his social worker Erin Lesui, or such other social worker as appointed under his NDIS plan.

2. The defendant continue to attend upon Stephen Porter of Ripples Allied Health, or such other nominated person or agency, for assessment of his intellectual disability and for treatment as directed.

3. The defendant continue to attend upon Northcott Counselling, or such other Counselling service, for relationship and sexual counselling as directed, particularly in the form education around appropriate sexual behaviour.

4. The defendant continue to reside at Foresight Assisted Living at 12 Barcoo Circuit, Albion Park and to notify Federal Agent Emily McFarlane, or other nominated agent to him or his service providers, within 7 days of any change of address

53. I make an order pursuant to s23ZD, Crimes Act 1914 for the forfeiture, to the Director of Public Prosecutions, Commonwealth, of the Samsung Galaxy S21 Mobile phone IMEI Number 350273541085592.

54. I am not sure how much you followed of all that, Mr Fielder. Bottom line - do what you are told by your social worker and counsellors. You cannot have SMS chats involving sexual matters, absolutely no. You cannot use devices to look at images of children, absolutely no. Just not going to happen, is it? Take the advice of your friends, family and service providers. If you have any question, any possibility you might be doing the wrong thing, ask. Do not hide what you are doing.

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Decision last updated: 20 February 2023