R v Hongfeng Ma - [2011] ACTSC 126

R v HONGFENG MA
[2011] ACTSC 126 (28 July 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – real or substantial question raised about fitness to plead in the Magistrates Court – committed to the Supreme Court for trial.
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 offences.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – accused ordered to submit to the jurisdiction of ACAT.

Court Procedures Rules 2006 (ACT), r 4733
Crimes Act 1900 (ACT), ss 308, 314, 316, 317, 319
Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), ss 184, 190

R v Whitney [2011] ACTSC 105
R v Fisher (No 2) [2011] ACTSC 100
R v Zvonaric (2001) 54 NSWLR 1

EX TEMPORE JUDGMENT

No. SCC 394 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 28 July 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 394 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

R
V
HONGFENG MA

ORDER

Judge:  Refshauge J
Date:  28 July 2011
Place:  Canberra

THE COURT FINDS THAT:

Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt Hongfeng Ma engaged in the conduct required for each offence charged on the indictment dated 2 June 2011.
It is not necessary for Hongfeng Ma to be detained in custody, having regard to the criteria for detention set out in s 308 of the Crimes Act 1900 (ACT).

AND THE COURT ORDERS THAT:

Hongfeng Ma submit to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) for the purpose of ACAT making a Mental Health Order.

Proceedings

Following an incident on 16 August 2010 in Dickson, the accused, Hongfeng Ma, was arrested and charged in the Magistrates Court with inflicting grievous bodily harm on another person, by intentionally and unlawfully using a Swiss pocket knife likely to cause a person grievous bodily harm and recklessly inflicting actual bodily harm on another person.

It became clear during the proceedings in the Magistrates Court that there was a real and substantial question about the fitness of Mr Ma to plead. While a Forensic Mental Health Assessment as to his fitness to plead was ordered and a report dated 30 November 2010 was prepared by Consultant Psychiatrist Dr Graham George in which he concluded that Mr Ma was, indeed, unfit to plead, no further proceedings seemed to be taken in respect of that matter in the Magistrates Court.

Indeed, notwithstanding that report, Mr Ma was, on 9 December 2010, committed to this court for trial. At the first directions hearing after committal (see r 4733 of the Court Procedures Rules 2006 (ACT)), I was satisfied, as required under s 314(1) of the Crimes Act 1900 (ACT) (the Crimes Act), that there was a real and substantial question as…

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.

Continue reading R v Hongfeng Ma

Details

AGLC: R v Hongfeng Ma [2011] ACTSC 126
Case: [2011] ACTSC 126
Decision Date: 28 July 2011

CaseChat Overview and Summary

In the case of R v Hongfeng Ma, the defendant faced a criminal trial in the Supreme Court of the Australian Capital Territory. The dispute centred around the defendant's fitness to plead and his capability to participate in the trial. The matter was initially raised in the Magistrates Court, but due to a real or substantial question regarding the defendant's fitness to plead, it was transferred to the Supreme Court.

The legal issues that the court had to decide included whether the defendant was fit to plead or whether he became incapable during the trial. Additionally, the court had to consider the disposition following a non-acquittal, specifically what ancillary orders should be made in light of the defendant's condition. The court was also tasked with deciding if the defendant needed to be detained in custody and whether he should be subject to the jurisdiction of the Administrative Appeals Tribunal (ACAT).

The court determined that the defendant, Hongfeng Ma, engaged in the conduct required for each offence charged beyond reasonable doubt. Despite the concerns about his fitness to plead, the court found that he was capable of participating in the trial and that there was no necessity for him to be detained in custody. The court also ordered that the defendant submit to the jurisdiction of ACAT, ensuring that appropriate measures were in place to manage his condition. These findings and orders were made under section 317 of the Crimes Act 1900 (ACT) and in accordance with the criteria for detention outlined in section 308 of the same Act.

Orders

Orders of the court

Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt Hongfeng Ma engaged in the conduct required for each offence charged on the indictment dated 2 June 2011. It is not necessary for Hongfeng Ma to be detained in custody, having regard to the criteria for detention set out in s 308 of the Crimes Act 1900 (ACT).

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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