R v Abdulla - [2005] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ABDULLA
Ruling of His Honour Judge Millsteed
30 May 2005
CRIMINAL LAW
Application to stay proceedings – applicant deaf and mute – unfit to plead – applicant's condition covered by s269H Criminal Law Consolidation – applicant to be dealt with in accordance with Division 3 of Part 8A of Criminal Law Consolidation Act – application for stay dismissed.
Criminal Law Consolidation 1935 s49(1), referred to.
Eastman v The Queen (2000) 74 ALJR 915; Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; R v Sexton (2000) 77 SASR 405; R v WRC (2003) 59 NSWLR 273; Question of Law Reserved (No 1 of 1997) 70 SASR 251; R v Podola [1960] 1 QB 325; Ngatayi v The Queen (1980) 147 CLR 1; R v Pritchard (1836) 7 C & P 303 (173 ER 135); R v Berry (1876) 1 QBD 447; R v Dyson (1831) 7 C & P 305 (173 ER 135); R v Stafford Prison (Governor) Ex parte Emery [1909] 2 KB 81; R v Roberts [1953] 2 All ER 340; R v Kovalky [1895] 6 QLJR 219; Ebatarinja v Deland (1998) 194 CLR 444, considered.

R v ABDULLA
[2005] SADC 61
Introduction

The applicant Scott Brett Abdulla is charged on information with unlawful sexual intercourse with a person under 12 years contrary to s49 (1) of the Criminal Law Consolidation Act 1935 (“CLCA"). By notice dated 15 February 2005 the applicant has applied for an order permanently staying proceedings on the information as an abuse of process. The application was heard by me on 19 May 2005. The applicant was represented by Mr Boucaut of counsel. Ms Mealor appeared for the Director of Public Prosecutions (DPP). The DPP opposed the application.
Factual background
The facts upon which the application is based are as follows. The applicant is a 21 year old aboriginal. He is deaf and mute. He lost his hearing when he was an infant as a result of contracting meningitis. On the hearing of the application two expert reports were put before me. The first is a report from Dr Craig Raeside, a forensic psychiatrist, dated 6 April 2004. The report was procured by Mr Abdulla’s legal representatives. The second is a report from Dr Heather Baron a Senior Speech Pathologist with the Royal Adelaide Hospital dated 5 October 2004, which was ordered by the Court pursuant to s269WA of the CLCA.
The reports disclose that the applicant is unable to communicate verbally or by sign language and is illiterate. Consequently, his ability to understand and comprehend matters is severely impaired. However he does not suffer from a mental illness.
Both Dr Raeside and Dr Baron are of the opinion, and the DPP accepts, that the applicant is unfit to plead and to be tried on the information. In his report Dr Raeside states…

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 v Abdulla

Details

AGLC: R v Abdulla [2005] SADC 61
Case: [2005] SADC 61
Decision Date: 30 May 2005

CaseChat Overview and Summary

The case of R v Abdulla involves the applicant who is deaf and mute, and thus unfit to plead. The application was made to stay the proceedings against the applicant under Section 269H of the Criminal Law Consolidation. The matter was heard in the Supreme Court of South Australia. The applicant's condition, being deaf and mute, raises issues as to their capacity to participate in the criminal proceedings, and thus their ability to enter a plea or participate in their defence.

The primary legal issue before the court was whether the applicant's condition should result in a stay of the proceedings, or whether the court should proceed in accordance with Division 3 of Part 8A of the Criminal Law Consolidation Act, which deals with the treatment of unfit defendants. The court considered the statutory provisions and case law on the matter of unfitness to plead due to mental incapacity and the legislative framework that governs such cases. The court needed to determine if the application should be dismissed, allowing the proceedings to continue under the statutory provisions, or if a stay was appropriate to address the applicant's condition.

The court found that the applicant's condition was indeed covered by Section 269H, which provides for the treatment of defendants who are unfit to plead due to mental incapacity. The court noted that the statutory framework provides specific procedures for dealing with such defendants, and the applicant's condition did not warrant a stay of the proceedings. Instead, the court was to proceed in accordance with the legislative provisions, which allow for the defendant to be dealt with in a manner appropriate to their condition. The court dismissed the application for a stay, affirming that the proceedings should continue under the statutory guidelines.

The final orders of the court were that the application to stay the proceedings was dismissed, and that the matter was to proceed in accordance with Division 3 of Part 8A of the Criminal Law Consolidation Act. The court made no further orders regarding the applicant's condition or treatment.

Orders