R v Dennis Fisher (No 3)

[2011] ACTSC 111

R v DENNIS FISHER (No 3)
[2011] ACTSC 111 (10 June 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – what orders can be made.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – accused ordered to submit to the jurisdiction of ACAT.

Crimes Act 1900 (ACT), s 308, 318

R v Fisher (No 2) [2011] ACTSC 100

EX TEMPORE JUDGMENT

No. SCC 49 of 2010

Judge:             Refshauge J
Supreme Court of the ACT

Date:              10 June 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 49 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

R

v

DENNIS FISHER

ORDER

Judge:  Refshauge J
Date:  10 June 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. Mr Dennis Fisher submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow that Tribunal to make a Mental Health Order in its discretion if it considers that it has power to do so.

1. In this matter I found, today, that Mr Fisher had engaged in the conduct required for offences charged on an Indictment dated 1 April 2011, being that he dishonestly and without consent, drove a certain motor vehicle on two occasions in November 2010. 

1. I have had advice from the ACT Civil and Administrative Tribunal (ACAT), as is available to me under s 308 of the Crimes Act 1900 (ACT) (the Crimes Act), which sets out the criteria for detention if I am considering making an order that Mr Fisher be detained in custody until that Tribunal orders otherwise. 

1. The Tribunal made no specific recommendations, but it made a number of detailed findings in relation to Mr Fisher and disclosed a careful, and if I might say so, thoughtful approach by the Tribunal to the difficult issue of how to respond to the situation presented by Mr Fisher.  In particular, I note that Mr Fisher is currently in custody in respect of further offences of a similar kind and that a further hearing on his fitness to plead and consequential decisions is presently listed before the ACT Magistrates Court. 

1. I note that Mr Fisher has been in custody for some nine months and in all the circumstances, it seems to me that nine months would be a likely period for the custodial confinement of Mr Fisher, were I to be sentencing him for the offences that are in the Indictment. Section 318(2) of the Crimes Act, allows me to make the orders that I consider appropriate, including detaining Mr Fisher in custody, or simply requiring him to submit to the jurisdiction of ACAT.

1. I raised in my earlier judgment (see R v Fisher (No 2) [2011] ACTSC 100) the difficulty that the absence of a power to grant bail would have in ensuring that someone in the position of Mr Fisher were required to submit to the jurisdiction of ACAT. In this case, I have to consider that no further, for Mr Fisher is in custody on the other matters to which I have referred and, accordingly, there will be no difficulty in arrangements being made and ensuring that he attends before ACAT. It seems to me, and it is consistent with the approach set out by ACAT, that a Community Care Order may be appropriate.

1. I note that ACAT addresses this and indicates that it will need further assessment and information so that it can make findings about Mr Fisher’s intellectual disability and whether there are reasonable grounds for believing that he is likely to do serious harm to himself or others or suffer serious mental or physical deterioration, which appear to be pre-conditions for the making of a Community Care Order; whether treatment, care or support is likely to reduce any such harm;  and whether treatment, care or support can be provided in a way that involves less restriction of Mr Fisher’s freedom of choice. 

1. I simply note that it is difficult to see how the community can appropriately respond to the difficulties that Mr Fisher faces and which will inevitably result in further interaction with the criminal justice system if the further offences, which have been proffered against him, are found either to be proved or that he engaged in the conduct which constitutes them.  That would be unfortunate if it was not possible somehow to provide appropriate support if a Community Care Order is unable to be made. 

1. I am not suggesting for one minute that ACAT should do other than discharge its obligations and act within its power, but I would hope that there is some mechanism to provide appropriate support and assistance to Mr Fisher in those circumstances.

1. In all the circumstances, having had regard to the period of approximately nine months that Mr Fisher has spent in custody, and I do not consider that it is necessary to detain him further in custody on this count, I shall dispose of this matter today. 

1. I therefore order that he submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow that Tribunal to make a Mental Health Order in its discretion if it considers that it has power to do so.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Ex Tempore Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 10 June 2011

Counsel for the Crown:  Ms M Hunter
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused:   Dr B Boss
Solicitor for the Accused:  Craig Lynch and Associates
Date of hearing:  20 August 2010
Date of judgment:  10 June 2011