R v JH - [2009] NSWSC 551

CITATION: R v JH [2009] NSWSC 551

HEARING DATE(S): 14/04/2009, 21/04/2009, 26/05/2009, 05/06/2009

JUDGMENT DATE :
16 June 2009

JUDGMENT OF: Buddin J

DECISION: 1 I find on the balance of probabilities that the accused JH is unfit to be tried for the offence of murder of the deceased JM at Schofields on 30 December 2007.
2 In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 I refer the accused to the Mental Health Review Tribunal.
3 I remand the accused in custody pending the determination of the Tribunal pursuant to s 16 of the Act.

CATCHWORDS: CRIMINAL LAW - Accused charged with murder - Inquiry into fitness to be tried - Accused unfit to be tried

LEGISLATION CITED: Mental Health (Forensic Provisions) Act 1990

CATEGORY: Principal judgment

CASES CITED: Clarkson v Regina [2007] NSWCCA 70
Eastman v the Queen (2009) 184 A Crim R 1
R v Presser [1958] 1 VR 45
Wills v The Queen [2007] 173 A Crim R 208

PARTIES: Regina
JH

FILE NUMBER(S): SC 2008/8504

COUNSEL: C Maxwell QC (Crown)
P Winch (Accused)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Nikola Velcic & Associates (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 16 JUNE 2009

2008/8504 – REGINA v JH

JUDGMENT
Introduction

1 HIS HONOUR: The accused, a young person whom I shall refer to as JH, is charged with the murder of his father, JM (but whom I shall refer to as the deceased) at Schofields on 30 December 2007. The accused’s mother is jointly charged with having committed that offence. The accused, who was born on 20 January 1993, was 14 at the time of the fatal incident and is now 16. This is an inquiry conducted pursuant to the Mental Health (Forensic Provisions) Act 1990 (the Act) for the sole purpose of determining whether the accused is unfit to be tried for that offence. In considering that issue I have had due regard to the relevant provisions of the Act which govern the fashion in which such an inquiry is to be conducted, and to the relevant legal principles to which I shall refer shortly

2 The accused has been examined by three forensic psychiatrists. Dr Stephen Allnutt has seen the accused twice at the request of the Crown and has prepared three reports dated 1 March 2009, 16 April 2009 and 23 April 2009 respectively. Dr Olav Nielssen has seen the accused at the request of his legal representatives and has prepared two reports dated 19 September 2008 and 16 April 2009 (although it was incorrectly dated 16 April 2008). Dr Kenneth Nunn, who is employed as a child and adolescent psychiatrist within Justice Health, has seen the accused regularly since he was taken into custody on 4 January 2008. He has prepared three reports for the purpose of these proceedings. They were all prepared in April of this year but only the last one was dated, namely 29 April…

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 JH

Details

AGLC: R v JH [2009] NSWSC 551
Case: [2009] NSWSC 551
Decision Date: 16 June 2009

CaseChat Overview and Summary

The case of R v JH involved the respondent JH, who was charged with the murder of another individual. The matter came before the court to determine whether JH was fit to be tried on the murder charge. The respondent had previously been assessed by medical professionals and deemed unfit to be tried due to a mental disorder. The court was required to consider the evidence presented and make a determination as to the fitness of the accused to stand trial.

The legal issues before the court were whether JH was fit to be tried on the murder charge and, if not, what the appropriate course of action would be. The court had to consider the evidence presented by the medical professionals and determine whether JH met the threshold for being deemed unfit to be tried. The court also had to consider the implications of a finding of unfitness on the respondent's treatment and the rights of the victim and the public.

In delivering its decision, the court found that JH was unfit to be tried on the murder charge. The court found that JH's mental disorder rendered him unable to understand the nature of the proceedings against him or to participate in his own defence. The court found that the evidence presented by the medical professionals was compelling and that JH met the threshold for being deemed unfit to be tried. The court made orders that JH be detained in a secure mental health facility and that he receive appropriate treatment for his mental disorder. The court also made orders that the respondent be reviewed periodically to determine whether he had become fit to be tried.

Orders