R v Bober (No 2)

[2008] SASC 250

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v BOBER (No 2)

[2008] SASC 250

Judgment of The Honourable Justice Gray

19 September 2008

CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - OTHER MATTERS

Defendant found unfit to stand trial with respect to charge of attempted murder, pursuant to section 269MA(5)(b) Criminal Law Consolidation Act 1935 (SA) – nolle prosequi entered on attempted murder charge and new charge of aggravated causing serious harm with intent laid against defendant – application by defendant for a finding to be recorded that she is mentally unfit to stand trial with respect to charge of aggravated causing serious harm with intent.

Held: investigation into defendant’s fitness to stand trial dispensed with by consent – finding that defendant mentally unfit to stand trial recorded pursuant to section 269MA(5)(b) Criminal Law Consolidation Act – declaration that defendant is liable to supervision under Part 8A Criminal Law Consolidation Act made pursuant to section 269MB(2) Criminal Law Consolidation Act.

Criminal Law Consolidation Act 1935 (SA) s 23(1), s 269MA(5)(b), s 269MB(1) and s 269MB(2), referred to.

R v BOBER (No 2)
[2008] SASC 250

Criminal

GRAY J.

1. In this matter, at a time when Sandra Kaye Bober was charged with attempted murder, I made an order on 19 June 2008 recording my finding that, pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA), Ms Bober was mentally unfit to stand trial.

2. Since that time, a new information has been laid alleging Ms Bober committed the offence of aggravated unlawfully causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act.  A nolle prosequi has now been entered in regard to the earlier charge of attempted murder.

3. I have taken the view that I need to make a separate finding of unfitness to stand trial with respect to the new information.

4. I have had regard to the evidence before the Court on the earlier occasion and the further report of Dr Andrew Czechowicz of 29 July 2008. I also note that the prosecution and the defence agree that I can dispense with any investigation into the defendant’s fitness to stand trial in respect of the charge of aggravated unlawfully causing serious harm with intent to cause serious harm.

5. In these circumstances, I formally record my finding, pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act, that the defendant, Sandra Kaye Bober, is mentally unfit to stand trial in respect of the charge of aggravated unlawfully causing serious harm with intent to cause serious harm.

6. I have received evidence, pursuant to section 269MB(1) of the Criminal Law Consolidation Act, by the prosecution and defence relevant to the question of whether a finding should be recorded that the objective elements of the offence were established.

7. Having regard to the tendered evidence including the statement of agreed facts, I am satisfied beyond reasonable doubt that the objective elements of the offence charged – namely, the offence of aggravated unlawfully causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act – have been established.  I record my finding in those terms.

8. Pursuant to section 269MB(2) of the Criminal Law Consolidation Act, I declare that Sandra Kaye Bober is liable to supervision under Part 8A of the Criminal Law Consolidation Act.