R v Gregory Clive Griffith

[2008] ACTSC 84

R v GREGORY CLIVE GRIFFITH
[2008] ACTSC 84 (1 October 2008)

CRIMINAL LAW – determination of whether accused likely to become fit to plead – to be determined on balance of probabilities.

Crimes Act 1900 (ACT), ss 312, 315A

No. SCC 66 of 2007

Judge:              Penfold J
Supreme Court of the ACT

Date:               1 October 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC of 66 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

THE QUEEN

v

GREGORY CLIVE GRIFFITH

FINDING

Judge:  Penfold J
Date:  1 October 2008
Place:  Canberra

THE COURT FINDS THAT:

1. Gregory Clive Griffith is not likely to become fit to plead to a charge of negligent driving causing death within the next 12 months.

1. On 27 August 2008 I found Gregory Clive Griffith unfit to plead to a charge of negligent driving causing death. Under s 315A of the Crimes Act 1900 (ACT), it is also necessary for me to determine whether he is likely to become fit to plead within the next 12 months.

1. Subsection 315A(4) is as follows:

(4)If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.

1. Under s 312 of the Crimes Act 1900, the question of a person’s fitness to plead is to be decided on the balance of probabilities, with no party bearing an onus of proof.  Although it is not expressly stated, I assume that these provisions apply also to a determination of whether a person is likely to become fit to plead within the next 12 months.

1. The finding made on 27 August 2008 relied on several medical assessments from Dr Graham George and Dr Tania Lioulios, in particular a report provided by Dr Lioulios on 10 February 2008 with which Dr George agreed in a letter dated 18 March 2008.

1. The reports, which span a period of nearly 18 months, indicate considerable deterioration in Mr Griffith’s underlying condition, while recording minor improvements in certain functions associated with changes in his care arrangements.  There is nothing in the reports to suggest that Mr Griffith’s condition is likely to improve in any of the aspects that led me to find him unfit to plead.

1. Dr George’s final assessment, provided on 18 March 2008, agrees with Dr Lioulios’ conclusion that Mr Griffith is unfit to plead based on Dr Lioulios’ demonstration in her report that Mr Griffith is suffering a dementia, and concludes that “Mr Griffith is Unfit to Plead and likely to remain so for in excess of 12 months”.

1. In the absence of any indication that Mr Griffith’s impairments are reversible, or that there is a possibility of those impairments being overcome in the future, and noting Dr George’s assessment in March 2008, I find, on the balance of probabilities, that Mr Griffith is not likely to become fit to plead within the next 12 months.

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:

   Date:     1 October 2008

Counsel for the prosecution:  Mr M Thomas
Solicitor for the prosecution:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr R Davies
Solicitor for the accused:  Legal Aid Office (ACT)
Date of hearing:  27 August 2008
Date of judgment:  1 October 2008