R v Dunn - [2012] NSWSC 946

Supreme Court

New South Wales

Medium Neutral Citation: R v Dunn [2012] NSWSC 946
Hearing dates: 13 August 2012
Decision date: 13 August 2012
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Pursuant to s.8(2) Mental Health (Forensic Provisions) Act 1990, the Court determines that there is no longer any need for an inquiry to be conducted concerning the Accused's fitness to be tried.
The proceedings are to be placed in the Arraignments List on 7 September 2012 for the purpose of fixing a trial date.
Bail is refused.

Catchwords: CRIMINAL LAW - Accused charged with murder and armed robbery - question raised as to fitness of Accused to be tried - fitness inquiry directed - later evidence unanimous that Accused fit to be tried - whether necessary to proceed with inquiry - power under s.8(2) Mental Health (Forensic Provisions) Act 1900 to determine that inquiry no longer necessary - Court determines under s.8(2) that inquiry no longer necessary
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Cases Cited: R v Presser [1958] VR 45
R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284
Subramaniam v The Queen [2004] HCA 51; 211 ALR 1
Eastman v The Queen [2000] HCA 29; 203 CLR 1
R v Zhang [2000] NSWCCA 344
Coles v R [2008] NSWSC 672
Texts Cited: Howard and Westmore, "Crime and Mental Health Law in New South Wales", 2nd edn, 2010
Category: Procedural and other rulings
Parties: Regina (Crown)
David John Dunn (Accused)
Representation: Counsel:
Mr LL Lungo (Crown)
Mr PJ Pearsall (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2010/301016; 2010/398890
Publication restriction: ---

Judgment

JOHNSON J: On 9 September 2010, the Accused, David John Dunn, was arrested and charged with the murder of Rebecca Apps at Barrack Heights that day, and armed robbery at Warrawong on 8 September 2010.

On 16 November 2011, the Accused was committed from the Wollongong Local Court for trial in the Supreme Court on those charges.

The Accused was scheduled to appear for the purpose of arraignment before Latham J on 5 April 2012. Before then, the solicitor for the Accused, Ms Clark, had concerns with respect to his mental state and arranged for him to be examined by a forensic psychiatrist, Dr Richard Furst. Dr Furst proceeded to examine the Accused and on 15 November 2011, he reported that he considered that the Accused was not fit to be tried.

The fact that there was a question as to the Accused's fitness to be tried was communicated to the Crown and to the Court. On 5 April 2012, Latham J, for the purposes of s.8(1) Mental Health (Forensic Provisions) Act 1990, directed that an inquiry as to the fitness of the Accused to be tried should be conducted, and that inquiry was fixed to proceed today, 13 August 2012.

Since 5 April 2012, Ms Clark has arranged for Dr Furst to again examine the Accused and that occurred…

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 Dunn

Details

AGLC: R v Dunn [2012] NSWSC 946
Case: [2012] NSWSC 946
Decision Date: 13 August 2012

CaseChat Overview and Summary

The defendant, Dunn, was charged with murder and armed robbery. The case raised the issue of Dunn's fitness to stand trial, leading to a directed fitness inquiry. Subsequent evidence showed unanimous agreement that Dunn was fit to be tried. The court was tasked with deciding whether the fitness inquiry needed to proceed despite the new evidence, and whether it had the power under section 8(2) of the Mental Health (Forensic Provisions) Act 1990 to determine that the inquiry was no longer necessary.

The court considered the purpose of the fitness inquiry, which was to assess whether the defendant could understand the proceedings, instruct counsel, and participate in their own defence. Given the unanimous evidence that Dunn was fit to be tried, the court found it unnecessary to proceed with the inquiry. The court determined that it had the power under section 8(2) of the Act to decide that the fitness inquiry was no longer necessary.

Having considered the evidence and the provisions of the Act, the court concluded that it was not necessary to proceed with the fitness inquiry. The court exercised its discretion under section 8(2) to determine that the inquiry was no longer necessary, and the trial proceeded with the original charges against Dunn.

Orders