R v Cromwell (a pseudonym) - [2022] NSWDC 80

District Court

New South Wales

Medium Neutral Citation: R v Cromwell (a pseudonym) [2022] NSWDC 80
Hearing dates: 15 February 2022
Decision date: 15 February 2022
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
The accused is unfit for trial - State charges referred to the ODPP (NSW) - Commonwealth charges to proceed to a determination as to whether a prima facie case is made out.

Catchwords:
Fitness hearing - different State and Commonwealth regimes if accused found to be unfit.

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

Cases Cited:
R v Presser (1958) VR 45; Kesavarajah v R (1994) 181 CLR 245;R v Munday [2021] NSWDC 374; Taylor v R (1978) 22 ALR 599; R v Denison (a pseudonym) [2020] NSWDC 267

Category: Procedural rulings
Parties:
Regina (Crown)
Mr Cromwell (a pseudonym) (the Accused)
Representation:
Ms Brain (Commonwealth Crown Prosecutor)
Ms Moen (Counsel for the accused)

File Number(s): 2020/00334224
Publication restriction: Statutory non publication of the name of the accused or of anything else which might, directly or indirectly, identify him.

Judgment

On 24 November 2020, Mr Cromwell (a pseudonym) was on parole in connection with various child sex offences. On that date, he was arrested following the execution of a search warrant by police at premises at which Mr Cromwell was residing.
Following Mr Cromwell’s arrest on 24 November 2020, he was charged with 15 offences involving a combination of both New South Wales and Commonwealth legislation.
In due course, Mr Cromwell appeared before McAnulty LCM in the Campbelltown Local Court on 20 October 2021 by which stage the proceedings had been through the charge certificate process - and through that process, a number of the charges which Mr Cromwell originally faced were withdrawn - such that, by the time the proceedings were before his Honour again on 18 November 2021, only six of the original 15 charges were being pressed by the prosecuting authorities.
Two of the alleged offences are Commonwealth matters; the remaining four are New South Wales matters.
An issue was raised before his Honour as to whether Mr Cromwell was fit for trial in relation to the remaining 4 charges; and, as is mandated by s 20B of the relevant Commonwealth legislation and s 93(1) of the relevant New South Wales legislation, the question of Mr Cromwell’s fitness for trial was, in effect, referred to this Court for determination.
In preparing for the fitness hearing which was listed for hearing today, three relevant experts reports were obtained. The Crown obtained a report from Dr Adam Martin (a forensic psychiatrist) dated 23 November 2021. The legal representatives for the accused obtained two reports: a report from Dr Melissa Hughes (a clinical neuropsychologist and forensic psychologist) dated 20 September 2021; and a report from Dr Sathish Dayalan (a forensic psychiatrist) dated 10 February 2022.
I pause to observe that Dr Dayalan’s report was sought, in addition to that of Dr Hughes, because there was some perceived…

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 Cromwell (a pseudonym)

Details

AGLC: R v Cromwell (a pseudonym) [2022] NSWDC 80
Case: [2022] NSWDC 80
Decision Date: 15 February 2022

CaseChat Overview and Summary

The case of R v Cromwell involved the defendant being brought before the court under pseudonym Cromwell. The dispute centred around Cromwell's fitness to stand trial on charges laid by both the Commonwealth and the State of New South Wales. The High Court of Australia was tasked with determining the appropriate procedures for handling Cromwell's fitness to stand trial, given the differing legislative frameworks governing fitness to stand trial in the Commonwealth and New South Wales.

The primary legal issues before the court were whether the trial judge should have referred the matter to the Director of Public Prosecutions in New South Wales if Cromwell was found unfit to stand trial on state charges, and whether the Commonwealth charges should proceed to a determination as to whether a prima facie case is made out. The court needed to reconcile the different statutory provisions and decide on the correct course of action under each jurisdiction.

The court concluded that the New South Wales legislation required the reference of the state charges to the Director of Public Prosecutions if Cromwell was found unfit to stand trial, while the Commonwealth charges should proceed to a determination as to whether a prima facie case is made out. The court emphasised the importance of following the specific statutory requirements of each jurisdiction and ensuring that Cromwell's rights were protected under both the state and federal frameworks.

The final orders of the court were that Cromwell was unfit for trial. The state charges were referred to the Director of Public Prosecutions in New South Wales, while the Commonwealth charges were to proceed to a determination as to whether a prima facie case is made out.

Orders

Orders of the court

The accused is unfit for trial - State charges referred to the ODPP (NSW) - Commonwealth charges to proceed to a determination as to whether a prima facie case is made out.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Cromwell (a pseudonym) [2022] NSWDC 80
Hearing dates:	15 February 2022
Decision date:	15 February 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	The accused is unfit for trial - State charges referred to the ODPP (NSW) - Commonwealth charges to proceed to a determination as to whether a prima facie case is made out.
Catchwords:	Fitness hearing - different State and Commonwealth regimes if accused found to be unfit.
Legislation Cited:	Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited:	R v Presser (1958) VR 45; Kesavarajah v R (1994) 181 CLR 245;R v Munday [2021] NSWDC 374; Taylor v R (1978) 22 ALR 599; R v Denison (a pseudonym) [2020] NSWDC 267
Category:	Procedural rulings
Parties:	Regina (Crown) Mr Cromwell (a pseudonym) (the Accused)
Representation:	Ms Brain (Commonwealth Crown Prosecutor) Ms Moen (Counsel for the accused)
File Number(s):	2020/00334224
Publication restriction:	Statutory non publication of the name of the accused or of anything else which might, directly or indirectly, identify him.