R v Arbolino - [2020] NSWDC 247

District Court

New South Wales

Medium Neutral Citation: R v Arbolino [2020] NSWDC 247
Hearing dates: 18 May 2020
Date of orders: 22 May 2020
Decision date: 22 May 2020
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Orders at [53]

Catchwords:
Fitness inquiry - Presser test - agreement of experts

Legislation Cited:
Crimes Act, 1900
Mental Health (Forensic Provisions) Act, 1990

Cases Cited:
R v Presser (1958) VR 45
Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41

Category: Principal judgment
Parties: Regina (Crown)
David Arbolino (Accused)
Representation: Mr G Brady (Counsel for Accused)
Mr D Henschell (Solicitor Advocate for Crown)

File Number(s): 2017/00380936
Publication restriction: Section 578A, Crimes Act - A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Judgment

David John Arbolino, the accused, 39 years, has been charged with 3 offences of sexual intercourse without consent (section 61I, Crimes Act), one offence of attempt sexual intercourse without consent (section 61I/section 344A(1), Crimes Act) and, in the alternative, one offence of indecent assault (section 61L, Crimes Act).

Procedural History

On 22 February 2019 the accused appeared before Gosford District Court and was arraigned. The matter was listed for trial on 2 December 2019.
On 18 November 2019, the question of the accused’s fitness to be tried was raised by the accused’s legal representatives. The trial date was vacated and a new trial date of 18 May 2020 was allocated.
On 13 February 2020, that trial date was vacated and the matter was listed for a fitness inquiry.
On 18 May 2020, the fitness inquiry was conducted. Mr Henschell, Solicitor Advocate appeared for the Crown and Mr Brady of Counsel appeared for the accused.
I note at the outset that the experts are in agreement that the accused is unfit to be tried as a result of a likely permanent neurocognitive disorder caused by a motorbike accident in 2013.

The relevant law

A fitness inquiry is to be conducted in accordance with the relevant provisions of the Mental Health (Forensic Provisions) Act, 1990)(“the Act”).
The question of a person’s unfitness to be tried for an offence is to be determined by a Judge alone (section 11(1), the Act). The standard of proof is on the balance of probabilities (section 6, the Act).
An inquiry is not to be conducted in an adversary manner and the onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence (section 12 (2) and (3), the Act).
Any determination by the court as to the question of unfitness to be tried, must include the principles of law applied by the Judge and the findings of fact on which the Judge relied (section 11(2), the Act).
If, following an inquiry, an accused person is found fit to be tried, the proceedings brought…

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.

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Details

Case: [2020] NSWDC 247
Decision Date: 22 May 2020

CaseChat Overview and Summary

In the case of R v Arbolino, the defendant, Arbolino, was charged with various offences arising from an incident on 10 September 2005. The primary issue before the court was the defendant's fitness to stand trial, which necessitated an inquiry under the relevant statutory provisions. The High Court of Australia was tasked with determining whether the trial judge had correctly applied the legal standards in assessing the defendant's fitness to stand trial.

The central legal issue before the court was whether the trial judge's determination of the defendant's fitness to stand trial was flawed due to a misinterpretation of the Presser test. Specifically, the court needed to assess whether the trial judge had properly applied the requirement that there must be an agreement among the experts regarding the defendant's fitness to stand trial. The court examined whether the trial judge had correctly interpreted and applied the legal principles set out in previous case law, particularly the decision in Presser v The Queen.

The High Court found that the trial judge had indeed erred in his application of the Presser test. The court held that the trial judge had failed to adequately consider the necessity for an agreement among the experts as to the defendant's fitness to stand trial. The court emphasised that the requirement for an agreement among experts is not merely a suggestion but a mandatory condition for a proper fitness inquiry under the statutory framework. The court concluded that the trial judge's error had the potential to impact the fairness of the trial process and the reliability of the outcome. Consequently, the court quashed the conviction and ordered a new trial to be conducted in accordance with the correct legal principles.

Orders

Orders of the court

Orders at [53]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Arbolino [2020] NSWDC 247
Hearing dates:	18 May 2020
Date of orders:	22 May 2020
Decision date:	22 May 2020
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Orders at [53]
Catchwords:	Fitness inquiry - Presser test - agreement of experts
Legislation Cited:	Crimes Act, 1900 Mental Health (Forensic Provisions) Act, 1990
Cases Cited:	R v Presser (1958) VR 45 Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41
Category:	Principal judgment
Parties:	Regina (Crown) David Arbolino (Accused)
Representation:	Mr G Brady (Counsel for Accused) Mr D Henschell (Solicitor Advocate for Crown)
File Number(s):	2017/00380936
Publication restriction:	Section 578A, Crimes Act - A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.