R v Fisher

Case [2011] ACTSC 56


HUMAN RIGHTS ACT

THE QUEEN v DENNIS FISHER
[2011] ACTSC 56 (1 April 2011)

CRIMINAL LAW – jurisdiction, practice and procedure –fitness to plead – intellectual disability – relevant principles and factors – Crimes Act 1900 (ACT) s 311.

Human Rights Act 2004 (ACT), s 21
Crimes Act 1900 (ACT), ss 311, 312, 314(1)(2), 315, 316, 375A
Guardianship and Management of Property Act 1991 (ACT), s 7
Criminal Code 2002 (ACT), s 318(2)

Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser [1958] VR 45
Bailiff v The Queen [2011] ACTCA 7
Egan and Ors v JG [2010] ACTSC 53
R v Bailiff (2010) 5 ACTLR 1
R v Mailes [2001] 53 NSWLR 251
R v Taylor (1992) 77 CCC (3d) 551
R v Rivkin (2004) 59 NSWLR 284
R v Khallouf [1981] VR 360
R v Stevens [2010] 107 SASR 456
R v McKitterick (2004) 36 SR (WA) 115
R v Polanski [1999] NSWSC 433
Ngatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Smith [2008] NSWDC 23
R v Tuigamala [2007] NSWSC 493
R v Stevens [2009] SADC 143
R v Griffith [2008] ACTSC 77
R v Miller (No 2) [2000] SASC 152
R v House [1986] 2 Qd R 415
R v Monaghan [2009] ACTSC 61

Ierace, M, Intellectual Disability:  a Manual for Criminal Lawyers (Redfern Legal Centre Publishing:  Sydney, 1989)

American Psychiatric Association, Diagnostic and Statistical Manual IV – Text Revision

No. SCC 49 of 2010

Judge:             Refshauge J
Supreme Court of the ACT

Date:              1 April 2011

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

REGINA

v

DENNIS FISHER

ORDER

Judge:  Refshauge J
Date:  1 April 2011
Place:  Canberra

THE COURT FINDS THAT:

  1. Dennis Fisher is unfit to plead and is unlikely to become fit to plead within twelve months.

  1. An essential element to a fair trial, to which all charged with a criminal offence are entitled, and which is now mandated by s 21 of the Human Rights Act 2004 (ACT), is that the accused person can participate to the fullest extent he or she desires in the trial.

  1. The elements of such participation have been summarised by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 in terms of the minimum standards with which the accused must comply before he or she can be tried without unfairness or injustice. The court described them (at 245) as follows:

Those standards ... require the ability (1) to understand the nature of the charge;  (2) to plead to the charge and to exercise the right of challenge;  (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged;  (4) to follow the course of the proceedings;  (5) to understand the substantial effect of any evidence that may be given in support of the prosecution;  and (6) to make a defence or answer the…

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AGLC
R v Fisher [2011] ACTSC 56
Case
[2011] ACTSC 56
Decision Date

CaseChat Overview and Summary

The appellant, Dennis Fisher, is being tried for charges of burglary, theft, and assault. The case was heard in the Supreme Court of the Australian Capital Territory, which had to determine whether Fisher was fit to plead to the charges against him. Fisher's fitness to plead was called into question due to his intellectual disability. The court needed to decide whether Fisher met the criteria for being unfit to plead under section 311 of the Crimes Act 1900 (ACT). The court considered the principles and factors relevant to determining a defendant's fitness to plead, including whether Fisher understood the nature of the charges, could instruct his lawyers, and could follow the trial process. The court concluded that Fisher did not meet the required threshold of fitness to plead. His intellectual disability impaired his ability to understand the proceedings and participate in his defence. Therefore, Fisher was deemed unfit to plead, and it was unlikely that he would become fit to plead within twelve months. The court ordered that Fisher be deemed unfit to plead and that he be placed under a supervision order.

Orders

Orders of the court

Dennis Fisher is unfit to plead and is unlikely to become fit to plead within twelve months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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