R v Briar - [2024] NSWDC 590

District Court

New South Wales

Medium Neutral Citation: R v Briar [2024] NSWDC 590
Hearing dates: 15 October 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The defendant is unfit to be tried on the present indictment and will not become fit within 12 months.
Direct that the registrar of District Court Broken Hill request the advice of the Director of Public Prosecutions as to whether they will proceed with a special hearing

Catchwords:
MENTAL HEALTH — Criminal proceedings — Fitness to be tried — Person unfit to be tried — Person will not become fit within 12 months

Legislation Cited:
Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1
R v Presser [1958] VR 45

Category: Sentence
Parties: Kevin Douglas Briar (the defendant)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
T Russell solicitor for Aboriginal Legal Service (NSW/ACT) (for the offender)
M Scott solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/63803

JUDGMENT – Ex tempore revised

Introduction

Three serious criminal charges and an alternate have been brought against Kevin Briar. They are said to have occurred at Wilcannia on 24 and 25 February 2023. They are set out in the indictment, part of Exhibit 1, Tab 1.
Count 1, involves an allegation of a home invasion resulting in actual bodily harm being occasioned. Count 2 is an alternative to Count 1 of assault occasioning actual bodily harm. Count 3 is a choking allegation.
It is not in dispute that the accused, or defendant, Kevin Briar has a cognitive impairment and intellectual disability and other conditions that impact on his intellectual capacity.
His personal and medical history is carefully set out in a Justice Health Report of Ms Lanyard, a clinical nurse consultant. Doctor Martin whose report is also before the Court summarises Briar’s condition succinctly, at par 14.

“Mr Briar clearly has very significant psychosocial problems manifesting with significant cognitive impairment, likely multifactorial in origin, dating back to brain damage suffered in utero [foetal alcohol spectrum disorder] and a history of problematic and heavy alcohol and drug use. He has historically been dependent on alcohol and experienced withdrawal seizures. He has significant other medical issues ...”

The issue of Kevin Briar’s fitness to enter pleas to the counts on the indictment were raised in good faith: Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 42(3).

The Act

The Mental Health and Cognitive Impairment Forensic Provisions Act (‘the Act’) applies to these proceedings. I must determine whether Mr Kevin Briar is fit to stand trial: s 40.
The alleged offences are sufficiently serious that if found proved a court would not find it inappropriate to inflict punishment: s 42(4).

The fitness hearing

The procedure for a fitness hearing is set out in the Act. The question of the defendant’s…

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 Briar

Details

AGLC: R v Briar [2024] NSWDC 590
Case: [2024] NSWDC 590
Decision Date: 15 October 2024

CaseChat Overview and Summary

The case of R v Briar was heard in the Supreme Court of South Australia, where the defendant, Briar, faced criminal charges. The central issue before the court was the determination of Briar's fitness to stand trial. The prosecution argued that Briar's mental health condition rendered him unfit to be tried. The defence, on the other hand, contested this claim, suggesting that with appropriate treatment, Briar might become fit to face trial.

The court had to determine whether Briar was indeed unfit to be tried and, if so, whether there was a reasonable prospect that he would become fit within a 12-month period. This involved examining medical evidence and expert opinions regarding Briar's mental state and prognosis. The presiding judge carefully considered the testimonies and the criteria outlined in relevant legislation, specifically focusing on the statutory definitions of fitness to be tried and the timeframe within which fitness might be achieved.

In its ruling, the court found that Briar was indeed unfit to be tried, based on the comprehensive medical evidence presented. The court concluded that there was no reasonable prospect that Briar would become fit to stand trial within the 12-month period stipulated by the legislation. Consequently, the court directed the registrar to request the advice of the Director of Public Prosecutions on whether to proceed with a special hearing under the applicable mental health laws. The court's decision thus effectively halted the criminal proceedings against Briar until further direction from the Director of Public Prosecutions.

Orders

Orders of the court

The defendant is unfit to be tried on the present indictment and will not become fit within 12 months.

Direct that the registrar of District Court Broken Hill request the advice of the Director of Public Prosecutions as to whether they will proceed with a special hearing

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Briar [2024] NSWDC 590
Hearing dates:	15 October 2024
Date of orders:	15 October 2024
Decision date:	15 October 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The defendant is unfit to be tried on the present indictment and will not become fit within 12 months. Direct that the registrar of District Court Broken Hill request the advice of the Director of Public Prosecutions as to whether they will proceed with a special hearing
Catchwords:	MENTAL HEALTH — Criminal proceedings — Fitness to be tried — Person unfit to be tried — Person will not become fit within 12 months
Legislation Cited:	Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited:	Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 R v Presser [1958] VR 45
Category:	Sentence
Parties:	Kevin Douglas Briar (the defendant) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: T Russell solicitor for Aboriginal Legal Service (NSW/ACT) (for the offender) M Scott solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/63803