R v Bober - [2008] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BOBER
[2008] SASC 162
Judgment of The Honourable Justice Gray
19 June 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - OTHER MATTERS
Application by defendant for a finding to be recorded, pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA), that she is mentally unfit to stand trial - defendant charged with attempted murder - Director of Public Prosecutions consented to the Court recording a finding that Ms Bober was mentally unfit to stand trial before holding the trial of the objective elements of the offence - psychiatric opinions stated that defendant was not fit to stand trial.
Held: investigation into defendant's fitness to stand trial dispensed with - finding recorded that defendant mentally unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269L, s 269MA, s 269MB and s 269WA, referred to.
R v Ridings (2006) 96 SASR 202, considered.

R v BOBER
[2008] SASC 162
Criminal
GRAY J

This is an application by the defendant, Sandra Kaye Bober, for a finding to be recorded, pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA), that she is mentally unfit to stand trial.
The defendant was charged with one count of attempted murder. The particulars of the charge were that on 15 March 2007 she attempted to murder Edward Bober, her husband.
Initially a question arose as to whether it was appropriate to examine the mental fitness of the defendant before or after holding a trial of the objective elements of the offence. However, the Court was advised that the Director of Public Prosecutions consented to the Court recording the finding that Ms Bober was mentally unfit to stand trial before holding the trial of the objective elements of the offence. On 30 April 2008 I dispensed with the investigation into Ms Bober’s fitness to stand trial.[1] I then ordered that the defendant was unfit to stand trial. I now publish my reasons for my order.[2]
[1] Pursuant to section 269MA(5)(a) of the Criminal Law Consolidation Act 1935 (SA).
[2] Pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA).
The defendant was committed for trial on 13 August 2007. A report was ordered by a judge of this Court, pursuant to section 269WA of the Criminal Law Consolidation Act, regarding the defendant’s fitness to instruct her lawyers. Andrew Czechowicz, a psychiatrist, provided a report on 29 August 2007.
Section 269H of the Criminal Law Consolidation Act provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right 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 v Bober

Details

AGLC: R v Bober [2008] SASC 162
Case: [2008] SASC 162
Decision Date: 19 June 2008

CaseChat Overview and Summary

The case of R v Bober concerned a defendant who applied for a finding to be recorded under section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA) that she was mentally unfit to stand trial. The defendant, Ms Bober, was charged with attempted murder and was subject to a psychiatric evaluation that concluded she was unfit to stand trial. The Director of Public Prosecutions agreed that a finding of unfitness should be made before proceeding with the trial of the objective elements of the offence.

The court was tasked with determining whether Ms Bober was indeed unfit to stand trial and, if so, what the appropriate steps were under the statute to address her unfitness. The legal issue at the heart of this case revolved around the interpretation and application of section 269MA(5)(b) of the Act, which deals with the fitness of an accused person to stand trial. The court needed to consider the psychiatric evidence presented and the legal standards required to make a finding of unfitness.

The court reviewed the psychiatric opinions and the consent of the Director of Public Prosecutions, which confirmed that Ms Bober was not fit to stand trial. Based on these factors, the court found that Ms Bober was mentally unfit to stand trial. The court concluded that the statutory provisions were satisfied, and it was in the interests of justice to record a finding of unfitness. The court's decision was in line with the statutory framework and the recommendations of the psychiatric experts and the prosecution.

The final orders of the court included a finding that Ms Bober was mentally unfit to stand trial, and the case was adjourned pending further psychiatric assessment and treatment of the defendant. The court's decision was made in accordance with the statutory requirements and aimed to ensure that Ms Bober received appropriate care and that the legal process was upheld.

Orders