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:

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Judgment

1. 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.

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

1. 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.

1. 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.

1. Since 5 April 2012, Ms Clark has arranged for Dr Furst to again examine the Accused and that occurred on 2 May 2012. A further report of Dr Furst dated 6 May 2012 concluded that the Accused remained unfit to be tried.

1. The Crown arranged for the Accused to be examined by Dr Adam Martin, forensic psychiatrist. In a report dated 28 March 2012, Dr Martin expressed the opinion that the Accused was probably fit to be tried.

1. Ms Clark made arrangements once again for Dr Furst to examine the Accused prior to the scheduled inquiry, and Dr Furst did so on 25 July 2012. In a report dated 1 August 2012, Dr Furst expressed the opinion that the Accused was now fit to be tried.

1. It is not necessary, for the purpose of this judgment, to expand upon the circumstances which gave rise to the question as to the Accused's fitness to be tried. It is sufficient to observe that it is apparent from the psychiatric reports (in particular, the most recent report of Dr Furst) taken with the helpful affidavit of Ms Clark dated 7 August 2012, that the medication regime being utilised with respect to the Accused in custody has had the effect where his mental health is markedly better than in previous months.

1. The affidavit of Ms Clark also reveals the observations she has made of the Accused, and opinions which she has formed over the period of time that she has been acting for him. There have been conferences with Ms Clark and Mr Pearsall of counsel, with the Accused on 19 July 2012, and last week on 8 August 2012.

1. Ms Clark has explained in her affidavit, her view that from the point of view of the solicitor for the Accused, he is presently fit to be tried. Mr Pearsall, who appears today, supports that submission.

1. The statutory regime in the Mental Health (Forensic Provisions) Act 1990 requires a Court, when an issue as to fitness arises prior to arraignment, to direct that an inquiry take place: s.8(1). The only limitation upon that procedure is one where it can be considered that the question as to unfitness has not been raised in good faith: s.10(2). There is no suggestion in this case that the issue of fitness has not been raised in good faith.

1. Where an inquiry is directed under s.8(1), the Court must determine the question of fitness, unless the Court has subsequently determined before the inquiry is commenced that there is no longer any need for such an inquiry to be conducted: s.10(1)(a). That provision picks up s.8(2) of the Act which provides that "The Court may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted".

1. It is apparent then in the statutory scheme, that an inquiry is not mandatory once directed. If the Court is in a position to determine, no doubt by reference to a body of reliable evidence, that there is no longer a question as to fitness to be tried raised, the Court may determine that an inquiry is no longer needed.

1. In some cases, there may still be uncertainties which require the Court to proceed with an inquiry.

1. In the present case, I am satisfied that the evidence from the solicitor for the Accused, Ms Clark, and as contained in Dr Furst's report of 1 August 2012 (taken with the earlier reports of Dr Furst and the report of Dr Martin), brings about a situation where the Court may determine that there is no longer any need for an inquiry to be conducted.

1. In approaching this question, I have kept in mind the nature of a fitness inquiry, and the issues which would have fallen for determination by the Court if an inquiry took place. This involves the application of what is commonly described as the Presser test. That test emerges from the decision of the Supreme Court of Victoria in R v Presser [1958] VR 45 at 48 and is applied in this State by reference to cases such as R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at 294-295 [279]-[286], and as further explained in the decision of the High Court in Australia in Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at 5 [9] (footnote 2).

1. It is also appropriate to bear in mind that a legal practitioner for an accused person has an ethical obligation to raise the issue of fitness as part of the overriding duty to the Court, even without the client's instructions: Eastman v The Queen [2000] HCA 29; 203 CLR 1 at 99 [297]; R v Zhang [2000] NSWCCA 344 at [29]; Howard and Westmore, "Crime and Mental Health Law in New South Wales", 2nd edn, 2010, paragraphs 5.4-5.5. In mentioning this, I am not suggesting that Ms Clark has raised the issue contrary to the wishes of her client. Rather, I am seeking to emphasise that Ms Clark, in my view, has discharged her obligation to her client and to the Court by raising the issue and then monitoring it in the ways that I have described, by seeking re-examination by Dr Furst on more than one occasion, and then by making her own assessment in conferences as to her client's fitness. The Court is grateful that Ms Clark has approached the matter with the thoroughness displayed in the evidence.

1. The procedure under s.8(2) has been utilised on a prior occasion: Coles v R [2008] NSWSC 672. Grove J was faced with a situation, not unlike that presented to the Court today, where the evidence was all one way. The evidence pointed clearly to fitness and it could not be said that there was a need to conduct an inquiry. In those circumstances, Grove J determined, for the purpose of s.8(2), that there was no longer any need to conduct an inquiry.

1. In the circumstances of this case, by reference to the psychiatric evidence and the affidavit of Ms Clark, I am satisfied that there is no longer a need for an inquiry as to the fitness of the Accused to be tried.

1. Accordingly, 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.

1. I direct that the proceedings be placed in the Arraignments List on 7 September 2012 for the purpose of fixing a trial date. Bail is refused.

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Decision last updated: 27 March 2013