R v Fisher

[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…