R v Dolan - [2005] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOLAN
Ruling of His Honour Judge David
5 August 2005
CRIMINAL LAW
Fitness to plead
Criminal Law Consolidation Act 1935 s269H, referred to.
R v Sexton 77 SASR 495; R v Presser 1958 VR 45, applied.

R v DOLAN
[2005] SADC 98

An investigation has been taken pursuant to Division 3 of Part 8A of the Criminal Law Consolidation Act 1935 (CLCA) to ascertain whether the defendant is unfit to stand trial.
Ms S Spence, defence counsel, called one witness namely Dr Jane Hecker who was of the opinion that pursuant to the criteria set out under Section 269H of the above Act the defendant was unfit to stand trial.
Ms A Trengove for the DPP called two psychiatrists Drs Koopowitz and Branson and one clinical psychologist Mr Mark Reid. All three were of the opinion that the defendant was fit to stand trial.
The defendant is charged with 16 counts which relate to sexual offences allegedly committed upon two under aged girls. Dates range from March 1983 to November 1992. It is alleged that when these events happened the defendant was in a defacto relationship with the mother of both of the complainants.
Law
I set out Section 269H of the Criminal Law Consolidation Act:-
Mental unfitness to stand trial
269H. 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 challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
If any of those three criteria are made out then the defendant would be unfit to plead. I remind myself that the defendant’s fitness to stand trial is to be determined at the date of the trial and I also remind myself that Section 269H “encapsulates the same criteria as the common law in regard to the determination of unfitness for trial” R v Sexton 77 SASR 405 at page 414, Gray J. The common law test for fitness to stand trial or fitness to plead is set out in R v Presser 1958 VR 45 at page 48:-
He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a…

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 Dolan

Details

AGLC: R v Dolan [2005] SADC 98
Case: [2005] SADC 98
Decision Date: 5 August 2005

CaseChat Overview and Summary

The case of R v Dolan involved a defendant charged with multiple counts of sexual offences against two underage girls. The dispute centred on the defendant's fitness to stand trial, as his physical and cognitive conditions were in question. The matter was heard in the District Court of South Australia. The primary legal issue was whether the defendant, who suffered from severe rheumatoid arthritis, short-term memory problems, and executive function impairments, met the criteria for being considered unfit to stand trial under Section 269H of the Criminal Law Consolidation Act 1935. This section outlines the conditions under which a person may be deemed unfit, including an inability to understand the charge, exercise procedural rights, or follow the proceedings.

The court was required to weigh the evidence of four expert witnesses, each with differing opinions on the defendant's fitness. Dr. Jane Hecker, called by the defence, believed the defendant was unfit to stand trial due to his cognitive impairments. Conversely, the three experts called by the Director of Public Prosecutions (DPP) — Drs Koopowitz and Branson and Mr. Mark Reid — concluded that the defendant was fit to stand trial, albeit with some allowances needed for his physical and cognitive difficulties. The court found the clinical assessments and experience of the DPP's experts more persuasive, leading to the conclusion that the defendant's impairments, while present, were not severe enough to render him unfit to stand trial. The court held that the trial could proceed with appropriate measures to accommodate the defendant's conditions.

In light of the evidence presented, the court ruled that the defendant was fit to stand trial. The court acknowledged the defendant's physical and cognitive challenges but determined that these could be managed within the trial process and with the assistance of his legal counsel. Consequently, the court directed that the trial proceed, subject to the implementation of necessary accommodations for the defendant's conditions.

Orders