R v HW

Case [2017] NSWLC 25 22 December 2017

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Local Court

New South Wales

Medium Neutral Citation: R v HW [2017] NSWLC 25
Hearing dates: 20 November 2017
Date of orders: 22 December 2017
Decision date: 22 December 2017
Jurisdiction: Criminal
Before: Magistrate Huntsman
Decision:
That the defendant is not fit to plead. That a section 32 adjournment order should be made.

Catchwords: CRIMINAL LAW - Fitness to plead or be tried - cognitive impairments - sexual offending - Local Court jurisdiction - appropriate order - permanent stay - diversion pursuant to section 32
Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 66, 202
Justice Legislation Amendment Act 2017 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW) ss 27, 32
Cases Cited: DPP v El Mawas [2006] NSWCA 154
DPP v Saunders [2017] NSWSC 760
DPP v Shirvanian (1998) 44 NSWLR 129
Eastman v R (2000) 203 CLR 1
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Kesavarajah v The Queen (1994) 181 CLR 230
Mailes v DPP [2006[ NSWSC 267
Mantell v Molyneux [2006] NSWSC 955
Ngatayi v The Queen (1980) 147 CLR 1
Pioch v Lauder (1976) 13 ALR 266
Quinn v Director of Public Prosecutions [2015] NSWCA 331
R v Mailes (2001) 53 NSWLR 251
R v Presser [1958] VR 45
Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538
TS v R [2014] NSWCCA 174
Texts Cited: NSW Law Reform Commission (NSWLRC), People with Cognitive and Mental Health Impairments in the Criminal Justice System. Criminal Responsibility and Consequences, Report No. 138 (2008)
Category: Procedural and other rulings
Parties: NSW Police (prosecution)
HW (defendant)
Representation:
Solicitors:
Police prosecutors, for the prosecution
NSW Legal Aid Commission, for the defendant

File Number(s): 2017/101166; 2017/89732; 2017/93259; 217/111775; 217/247557
Publication restriction: Name of defendant and victim supressed

Judgment

It is submitted on behalf of the accused in the current proceedings, HW, that he is not fit to plead. The medical evidence upon which the submission is based will be detailed below. The prosecution originally opposed the defence position, but now concede, after obtaining further medical evidence, that the accused is not fit to plead. The defence submits that the Local Court should find that the defendant is not fit to plead and on such finding make an order for a permanent stay. The prosecution submits that in the absence of any alternative order, other than an order for discharge or stay, the Court should make a section 32 order in the interests of community safety and accountability for HW’s future conduct.
The issues in the current proceedings are as follows:

Is HW fit to plead?

Does the Local Court have jurisdiction to determine HW’s fitness to plead?

If HW is not fit to plead, what order can be made in the Local Court; is the appropriate order in the Local Court one for discharge or for permanent stay of proceedings, or some other order?

Does the Local Court have jurisdiction to make a ‘section 32 order’ (being an order under section…

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 HW

Details

AGLC: R v HW [2017] NSWLC 25
Case: [2017] NSWLC 25
Decision Date: 22 December 2017

CaseChat Overview and Summary

The case before the court involved an individual identified as HW, who was facing charges related to sexual offences. The defendant was alleged to have committed serious sexual crimes, and the matter was heard in the Local Court of New South Wales. The primary dispute centred on HW's fitness to plead or stand trial due to his cognitive impairments. The court had to determine whether HW possessed the requisite mental capacity to understand the proceedings, to instruct his legal representatives, and to participate in his defence.

The legal issues before the court encompassed the interpretation and application of the relevant statutory provisions concerning fitness to plead and the court's jurisdiction to make an order under section 32 of the Criminal Procedure Act 1986 (NSW). The court needed to ascertain the extent of HW's cognitive impairments and their impact on his ability to participate in the trial process. Additionally, the court had to consider the appropriate course of action, including the potential for a permanent stay of the proceedings or a diversion order under section 32.

In reaching its decision, the court thoroughly examined the medical evidence provided, which indicated that HW suffered from significant cognitive impairments, including intellectual disability. The court concluded that these impairments rendered HW unfit to plead or to stand trial. Given the nature of the charges and the defendant's condition, the court found that a permanent stay of the proceedings was not appropriate. Instead, the court determined that a section 32 adjournment order would be the most suitable outcome, allowing for the possibility of future proceedings if HW's condition improved. The court's decision was grounded in the need to balance the rights of the defendant with the interests of justice, ensuring that the defendant's cognitive impairments were properly considered.

The orders made by the court were that HW was not fit to plead, and a section 32 adjournment order was to be implemented. This decision recognises the defendant's current incapacity while leaving the door open for future legal action if his condition improves.

Orders

Orders of the court

That the defendant is not fit to plead. That a section 32 adjournment order should be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v HW [2017] NSWLC 25

Most Recent Citation

NSW Police v Williamson [2018] NSWLC 25

Cases citing this decision · 3 of 3 shown

R v Cameron
[2024] NSWLC 12 Para 38

…Marien P of the Children's Court 18 November 2009, R v KF [2011] NSWLC 14 Heilpern LCM; NSW Police v Smith [2016] NSWLC 24 Mulroney ALCM; R v HW [2017] NSWLC 25, per Huntsman LCM and NSW Police v Williamson [2018] NSWLC 25 per M O’ Brien LCM.…
Jones v Booth
[2019] NSWSC 1066 Para 62

…h have considered s.32 MHFP Act have involved reports by psychologists: Director of Public Prosecutions v El Mawas at 95 [8], 96-97 [20]-[22]; R v HW [2017] NSWLC 25 at [16]-[25], [74]; Director of Public Prosecutions (NSW) v Saunders at [7]-[8]; Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180 a…
NSW Police v Williamson
[2018] NSWLC 25 Para 30

…Huntsman LCM in R v HW [2017] NSWLC 25, finding that the defendant was unfit to plead (in which the prosecution and defence did not contend otherwise), turned her mind to the question of what orders were appropriate in all of the circumstances of that case. In the interests of time, I paraphrase her observations a…

View all 3 citing cases →

Cases cited in this decision · 25 of 25 shown

Director of Public Prosecutions (NSW) v Saunders
[2017] NSWSC 760 Para 69

…refer DPP v El Mawas [2006] NSWCA 154; Quinn v Director of Public Prosecutions [2015] NSWCA 331; Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760).…
Quinn v Director of Public Prosecutions
[2015] NSWCA 331 Para 69

…icity of a treatment plan, and issues of deterrence in sentencing (refer DPP v El Mawas [2006] NSWCA 154; Quinn v Director of Public Prosecutions [2015] NSWCA 331; Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760).…
TS v R
[2014] NSWCCA 174 Para 49

…In the Court of Criminal Appeal decision in TS v R [2014] NSWCCA 174, Bellew J, with whom Leemings JA and Adams J agreed, provided the following summary of relevant principles (at [61]-[64]):…
R v Edwards
[2009] HCA 20

…Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ. In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 in the following terms…
Boulos v R
[2008] NSWCCA 119 Para 46

…er Mason CJ at 582. The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].…
Mantell v Molyneux
[2006] NSWSC 955 Para 26

…he fails to meet certain minimum standards which he needs to equal if he can be tried without unfairness or injustice to him”: Mantell v Molyneux [2006] NSWSC 955 at [30], citing R v Presser [1958] VR 45 . The Supreme Court in Mantell v Molyneux ( at [30] – [31]) states the test for whether an accused is fit to ple…
DPP v El Mawas
[2006] NSWCA 154 Para 69

…of a section 32 order (6 months), the efficacy and specificity of a treatment plan, and issues of deterrence in sentencing (refer DPP v El Mawas [2006] NSWCA 154; Quinn v Director of Public Prosecutions [2015] NSWCA 331; Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760).…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27

…er for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].…
Mailes v Director of Public Prosecutions and 1 Or
[2006] NSWSC 267 Para 54

…an unfit defendant be detained (refer provisions of MHFPA and s 27 of that Act, refer also the discussion of Justice Hulme in Mailes v DPP And 1 Or [2006] NSWSC 267).…
R v Mailes
[2003] NSWSC 707 Para 30

…In Mantell at [31], Adams J cites with approval the decision of Hunt CJ at CL in R v Mailes (2001) 53 NSWLR 251 noting that:…
Eastman v The Queen
[2000] HCA 29

…“In Eastman v The Queen (2000) 203 CLR 1 the issue of fitness to be tried arose in the context of s428E of the Crimes Act 1900 (ACT) and s68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT) in relation to whether an appellate court has a duty to consider fitness to plead of its own initiative, that is, where the m…
Ridgeway v the Queen
[1995] HCA 66

…and precluding the undermining of confidence in courts generally: see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited” [1995] Crimple 864. Stays to prevent…
Rogers v The Queen
[1994] HCA 42

…oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, “Halting Criminal Prosecutions: The Abuse of Proce…
Kesavarajah v The Queen
[1994] HCA 41

…NSWSC 760 DPP v Shirvanian (1998) 44 NSWLR 129 Eastman v R (2000) 203 CLR 1 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Kesavarajah v The Queen (1994) 181 CLR 230 Mailes v DPP [2006[ NSWSC 267 Mantell v Molyneux [2006] NSWSC 955 Ngatayi v The Queen (1980) 147 CLR 1 Pioch v Lauder (1976) 13 ALR 266 Q…
Walton v Gardiner
[1993] HCA 77

…(1989) 168 CLR 23 at 34 per Mason CJ. In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 in the following terms (at 720): ".... whether, in all of the circumstances, the continuation of the proceedings would involve unacceptab…
Williams v Spautz
[1992] HCA 34

…168 CLR 23), or are being conducted for a purpose which in the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown C (1989) 17 NSWLR 472 at…
R v Glennon
[1992] HCA 16

…ng to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR…
Jago v District Court (NSW)
[1989] HCA 46

…its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ. In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton…
Barton v the Queen
[1980] HCA 48

…trial judge can do can relieve against its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ. In R v Edwards (2009) 83 ALJR 717 the High Court…
Ngatayi v The Queen
[1980] HCA 18

…6; (1989) 168 CLR 23 Kesavarajah v The Queen (1994) 181 CLR 230 Mailes v DPP [2006[ NSWSC 267 Mantell v Molyneux [2006] NSWSC 955 Ngatayi v The Queen (1980) 147 CLR 1 Pioch v Lauder (1976) 13 ALR 266 Quinn v Director of Public Prosecutions [2015] NSWCA 331 R v Mailes (2001) 53 NSWLR 251 R v Presser [1958] VR 45 Smi…
Bunning v Cross
[1978] HCA 22

…ences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v. Cross 143 (1978) 141 CLR 54; Reg. v. Sang (1980) AC 402. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivab…
Sinclair v The King
[1946] HCA 55

…the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. Dixon, J, as he then was, mentioned in Sinclair v R (1946) 73 CLR 316, that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. B…
(1972) 407 US 514
(1972) 407 US 514

…e reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ord…
(1980) AC 402
(1980) AC 402

…nly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v. Cross 143 (1978) 141 CLR 54; Reg. v. Sang (1980) AC 402. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could…
Bell v DPP
(1985) AC 937

…ed's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case a…

Legislation cited in this decision · 8

Criminal Procedure Act 1986 (NSW)
202, 66 3 mentions (from Para 43)
Mental Health (Forensic Provisions) Act 1990 (NSW)
27, 32 3 mentions (from Para 4)
Constitution Act 1902 (SA)
1 mention
Crimes Act 1900 (ACT)
1 mention
Criminal Lunatics Act 1800 (UK)
1 mention
Justice Legislation Amendment Act 2017 (NSW)
1 mention (from Para 68)
Local Courts Act 1982 (NSW)
1 mention
Mental Health (Treatment and Care) Act 1994 (ACT)
1 mention

Medium Neutral Citation:	R v HW [2017] NSWLC 25
Hearing dates:	20 November 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Criminal
Before:	Magistrate Huntsman
Decision:	That the defendant is not fit to plead. That a section 32 adjournment order should be made.
Catchwords:	CRIMINAL LAW - Fitness to plead or be tried - cognitive impairments - sexual offending - Local Court jurisdiction - appropriate order - permanent stay - diversion pursuant to section 32
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 66, 202 Justice Legislation Amendment Act 2017 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) ss 27, 32
Cases Cited:	DPP v El Mawas [2006] NSWCA 154 DPP v Saunders [2017] NSWSC 760 DPP v Shirvanian (1998) 44 NSWLR 129 Eastman v R (2000) 203 CLR 1 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Kesavarajah v The Queen (1994) 181 CLR 230 Mailes v DPP [2006[ NSWSC 267 Mantell v Molyneux [2006] NSWSC 955 Ngatayi v The Queen (1980) 147 CLR 1 Pioch v Lauder (1976) 13 ALR 266 Quinn v Director of Public Prosecutions [2015] NSWCA 331 R v Mailes (2001) 53 NSWLR 251 R v Presser [1958] VR 45 Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 TS v R [2014] NSWCCA 174
Texts Cited:	NSW Law Reform Commission (NSWLRC), People with Cognitive and Mental Health Impairments in the Criminal Justice System. Criminal Responsibility and Consequences, Report No. 138 (2008)
Category:	Procedural and other rulings
Parties:	NSW Police (prosecution) HW (defendant)
Representation:	Solicitors: Police prosecutors, for the prosecution NSW Legal Aid Commission, for the defendant
File Number(s):	2017/101166; 2017/89732; 2017/93259; 217/111775; 217/247557
Publication restriction:	Name of defendant and victim supressed