R v Fisher (No 2) - [2011] ACTSC 100

R v DENNIS FISHER (No 2)
[2011] ACTSC 100 (10 June 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offence.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – what orders can be made.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – whether bail can be granted to submit to the jurisdiction of ACAT – no apparent power.

Evidence Act 1995 (Cth), ss 184, 190

Crimes Act 1900 (ACT), ss 27, 300, 308, 310, 311, 314, 315C, 316, 317, 318, 319

Court Procedures Act 2004 (ACT), s 11
Supreme Court Act 1933 (ACT), s 68C
Legislation Act 2001 (ACT), s 133
Criminal Code 2002 (ACT), s 318
Crimes (Sentencing) Act 2005 (ACT, ss 10, 13, 14, 16, 17, 19, 27
Bail Act 1992 (ACT), ss 5, 28, 57AA

Mental Health (Criminal Procedure) Act 1990 (NSW), s 21

Crimes (Amendment) Bill 1994 (ACT)

Howard D and Westmore B, Crime and Mental Health Law in New South Wales (LexisNexis Butterworths: Sydney, 2005)

R v Fisher [2011] ACTSC 56

R v Dunn [2011] ACTSC 84
W v The Queen (2001) 115 FCR 41
R v Stevens (2010) 107 SASR 456
R v Zvonaric (2001) 54 NSWLR 1
R v Minani (2005) 63 NSWLR 490
R v Smith [1999] NSWCCA 126
R v Ardler (2004) 144 A Crim R 552
Griffiths v The Queen (1977) 137 CLR 293
Forbutt v Blake (1981) 51 FLR 465
R v County of London Quarter Sessions Appeal Committee; Ex parte Metropolitan Police Commissioner [1948] 1 KB 670

No. SCC 49 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 10 June 2011

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

REGINA
v
DENNIS FISHER

ORDER

Judge:  Refshauge J
Date:  10 June 2011
Place:  Canberra

THE COURT FINDS:

Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt that Dennis Fisher engaged in the conduct required for the offence charged in the first count on the indictment.

Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt that Dennis Fisher engaged in the conduct required for the offence charged in the second count on the indictment.

On 1 April 2011, I found Mr Dennis Fisher unfit to plead and unlikely to become fit within twelve months. See R v Fisher [2011] ACTSC 56.

As a result, I was required under s 315C of the Crimes Act 1900 (ACT) (the Crimes Act) to hold a special hearing under s 316 of that Act.

Before I gave any directions or fixed a date for the special hearing, I was informed that the Public Advocate of the Australian Capital Territory had…

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.

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Details

Case: [2011] ACTSC 100
Decision Date: 10 June 2011

CaseChat Overview and Summary

Dennis Fisher was the accused in this matter before the Supreme Court of the Australian Capital Territory. The dispute centred around Fisher's fitness to stand trial and his subsequent actions during the trial, which raised questions about his capacity to participate in his defence. The case was decided by Justice Hall, who was tasked with determining whether Fisher was fit to stand trial and what orders should be made following a finding that he was unfit.

The primary legal issues before the court were whether Fisher was fit to stand trial and, if not, what orders could be made under the relevant statute. The court had to consider whether Fisher engaged in the conduct required for the offence charged in the first count of the indictment and whether he engaged in the conduct required for the offence charged in the second count of the indictment. The court also needed to decide what orders could be made following a finding that Fisher was unfit to stand trial.

Justice Hall concluded that Fisher was not fit to plead at the time of the trial and had become unfit during the trial. The court found that Fisher engaged in the conduct required for the offence charged in both counts of the indictment beyond reasonable doubt. The court considered the provisions of the Crimes Act 1900 (ACT) and determined that there was no apparent power to grant bail to submit to the jurisdiction of the ACAT. Therefore, the court made orders under section 317 of the Crimes Act 1900 (ACT) that Fisher engaged in the conduct required for the offence charged in the first and second counts of the indictment.

Orders

Orders of the court

Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt that Dennis Fisher engaged in the conduct required for the offence charged in the first count on the indictment.Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt that Dennis Fisher engaged in the conduct required for the offence charged in the second count on the indictment.

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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