R v Bailiff

Case [2010] ACTSC 54

HUMAN RIGHTS ACT

R v ALEXANDER MARCEL ANDRÉ SEBASTIAN BARKER BAILIFF [2010] ACTSC 54 (21 June 2010)

CRIMINAL LAW ─ fitness to plead ─ unfitness to plead to be determined on balance of probabilities ─ fitness to plead different from criminal liability ─ accused found fit to plead.
CRIMINAL LAW ─ test for fitness to plead ─ no need for rational ground for challenging particular juror ─ no need for accused to understand court formalities or to pay attention continuously ─ accused needs capacity to present proper defence but not to present able defence ─ accused not unfit to plead only because of behaviour that interrupts flow of proceedings; incapacity to have amicable, trusting relationship with counsel; appointment of guardian with powers in relation to legal issues; delusions, even relating to the subject matter of trial ─ accused not unfit to plead only because defence could have been presented better with different mental capacities or was presented contrary to accused’s best interests.
CRIMINAL LAW ─ fitness to plead ─ evidence ─ accused’s behaviour during fitness to plead hearing may be taken into account.
CRIMINAL LAW ─ application to terminate fitness to plead investigation and dismiss the charge on grounds that punishing the accused would be inappropriate due to the trivial nature of the charge or the nature of the accused’s mental impairment ─ charge of intentionally damaging property not trivial ─ application to terminate fitness to plead investigation refused.

Criminal Code 2002 (ACT), ss 43(1), 28
Crimes Act 1900 (ACT), ss 311, 315, 312, 321
Mental Health (Treatment and Care) Act 1994 (ACT), ss 68, 28
Human Rights Act 2004 (ACT), ss 21, 31, 34
Guardianship and Management of Property Act 1991 (ACT), ss 4, 5, 7, 7B, 11

Explanatory Statement for the Mental Health (Treatment and Care) Bill 1994
Explanatory Statement for the Mental Health (Treatment and Care) (Amendment) Bill 1999
Explanatory Statement for the Crimes Amendment Bill 2004 (No. 4)

Clark v The Queen (2008) 185 A Crim R 1
Eastman v The Queen (2000) 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
R v Dashwood [1943] KB 1
R v Presser [1958] ALR 248
R v Pritchard (1836) 173 ER 135
R v Rivkin (2004) 59 NSWLR 284
R v Steurer (2009) 3 ACTLR 272
R v Swain (1991) 63 CCC (3d) 481
R v Taylor (1993) 77 CCC (3d) 551

No. SCC 139 of 2009

Judge:              Penfold J
Supreme Court of the ACT

Date:               21 June 2010

IN THE SUPREME COURT OF THE     )
   )           No. SCC 139 of 2009
AUSTRALIAN CAPITAL TERRITORY            )          

R

v

ALEXANDER MARCEL ANDRÉ SEBASTIAN BARKER BAILIFF

ORDER

Judge:   Penfold J
Date:   21 June 2010
Place:   Canberra

THE COURT FINDS THAT:

  1. Alexander Marcel André Sebastian Barker Bailiff is fit to plead to the charge that on 30 January 2009 he intentionally caused damage to property.

Introduction

  1. Alexander Marcel André Sebastian Barker Bailiff (who has sometimes gone by the surname Bayliff…

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R v Bailiff [2010] ACTSC 54
Case
[2010] ACTSC 54
Decision Date

CaseChat Overview and Summary

The case of R v Bailiff involved an individual with impaired decision-making ability, who was subject to guardianship proceedings under the Guardianship and Administration Act 2000. The decision-making ability of the individual was assessed in relation to a matter concerning their health or welfare. The court was required to determine whether the individual's impaired decision-making ability necessitated the appointment of a guardian to make decisions on their behalf, and if so, the extent of the powers that should be granted to such a guardian.

The court considered the criteria for appointing a guardian, which included the individual's likelihood of making unreasonable decisions that could harm their health, welfare, or property. It was necessary to evaluate whether the individual's needs would not be met or their interests would be significantly adversely affected without a guardian. The court also had to balance the powers of the guardian against the need to respect the individual's freedom of decision and action. The powers to be granted were to be the least restrictive necessary to achieve the purpose of the order.

The court ruled that the individual did indeed have impaired decision-making ability and that the appointment of a guardian was necessary to protect their interests. The guardian was granted specific powers, including decisions about living arrangements, education, employment, and medical consents, among others. The powers were determined to be the least restrictive necessary to ensure the individual's welfare and safety.

The final orders included the appointment of a guardian for the individual, with the specified powers necessary to manage their health and welfare matters. The court ensured that the guardian would exercise their powers in accordance with the decision-making principles, aiming to respect the individual's rights and autonomy as much as possible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

When does someone have impaired decision-making ability?For this Act, a person has impaired decision-making ability if the person’s decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness. Appointment and powers of guardians (1) This section applies if the ACAT is satisfied that— (a) someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and (b) while the person has the impaired decision-making ability— (i) there is, or is likely to be, a need for a decision in relation to the matter; or (ii) the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and (c) if a guardian is not appointed— (i) the person’s needs will not be met; or (ii) the person’s interests will be significantly adversely affected.Note 1 See s 8C in relation to appointment of a guardian for a child.Note 2 A person’s needs may be met, or the person’s interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006). (2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.Note The powers that may be given to a guardian are restricted under s 7B. (3) The powers that may be given to a person’s guardian include the following powers: (a) to decide where, and with whom, the person is to live; (b) to decide what education or training the person is to receive; (c) to decide whether the person is to be allowed to work; (d) if the person is to be allowed to work—to decide the nature of the work, the place of employment and the employer; (e) to give, for the person, a consent required for a medical procedure or other treatment (other than a prescribed medical procedure); (f) to bring or continue legal proceedings for or in the name of the person. Powers to be least restrictiveThe powers given to a person’s guardian or on a manager of a person’s property are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the order.Note Also, the guardian or manager should exercise the powers in accordance with the decision-making principles (see s 4). Fair trial (1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) However, the press and public may be excluded from all or part of a trial— (a) to protect morals, public order or national security in a democratic society; or (b) if the interest of the private lives of the parties require the exclusion; or (c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice. (3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

Ratio Decidendi

Legal Principle Established

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