R v John Smith*
[2011] NSWDC 233
•16 September 2011
District Court
New South Wales
Medium Neutral Citation: R v John SMITH* [2011] NSWDC 233 Decision date: 16 September 2011 Before: Cogswell SC DCJ Decision: Fit to be tried.
Catchwords: CRIMINAL LAW - procedure - fitness to be tried. Legislation Cited: Mental Health (Forensic Provisions) Act 1990, s 12. Cases Cited: Regina v Presser [1958] VR 45; [1958] ALR 248. Category: Principal judgment Parties: Regina (Crown)
John SMITH (Accused)Representation: Counsel:
L Shaw (Crown)
D C McCallum (Accused)
File Number(s): DC 2010/233760 Publication restriction: It is an offence to publish the name, or any information that identifies a complainant in certain sexual offence cases. * A pseudonym has been used to protect the identities of the complainants in accordance with s 578A of the Crimes Act 1900.
Judgment
John Smith has been charged with some serious crimes. They are allegations of sexual assaults committed against people who were under 16 years of age. They are said to have been committed in the early to mid 1990s.
There were tendered before me a report from a neuro-psychologist, Dr Susan Pulman, dated 12 November 2010 and a report from the Forensic Psychiatrist Dr Stephen Allnutt dated 27 June 2010.
Mr Smith has not yet been arraigned on charges for those offences which are alleged against him. The reports raised - Mr L Shaw of counsel who is Crown Prosecutor and Mr D C McCallum of counsel, representing Mr Smith, agreed - a question of Mr Smith's unfitness to be tried for the offences. I determined that an enquiry should be conducted into that question and I took into account the evidence of those two reports. I am satisfied that the question has been raised in good faith.
Mr McCallum represented Mr Smith throughout the inquiry which was not conducted in an adversary manner and I note the provisions of s 12 of the Mental Health (Forensic Provisions) Act 1990 regarding the onus of proof. The question of whether or not a person is fit to be tried - or, as the Act says, the question of a person's unfitness to be tried - is usually judged according to criteria set out by Smith J in the Victorian decision of Regina v Presser [1958] VR 45; [1958] ALR 248. I will return to those criteria shortly.
In her report Dr Pulman described Mr Smith as a "[age] year old man with a history of alcohol dependence who sustained an extremely traumatic .. injury in [year]". She thought that Mr Smith's "difficulties in encoding of new material are likely to impact on his fitness to stand trial". She recommended that Mr Smith "undergo a psychiatric review to determine whether his self reported memory difficulties relating to his past maybe due to psychological factors".
That is why Dr Allnutt was asked to assess Mr Smith. Dr Allnutt expressed the opinion that when he saw Mr Smith, Mr Smith "was manifesting some mild depressive symptoms more consistent with an adjustment disorder with a depressed mood than a major depressive episode". He has, apparently, retrograde amnesia going back some years and has no recollection of the time or circumstances of the allegations against him. Dr Allnutt noted that in Dr Pulman's review Mr Smith could not recall the nature of the charges or the role of the Prosecutor or how he provided instructions, and he also noted that there was some concern about his memory but said that "when it comes to fitness to stand trial the most significant concern would be his capacity encode new material, as this could impact on his capacity to follow proceedings".
Dr Allnutt then reviewed some findings he made during his interview and concluded that the factors which he reviewed "suggest a relative ability to encode new material and an ability to encode new material as they pertain to his legal proceedings". He thought he understood about entering a plea to the charge and the nature of pleas available to him and the consequences of pleading one way or the other. He generally understood the nature of the proceedings and what was going on in court in a general sense. He understood what evidence was and that it could be used for and against him.
Dr Allnutt said that "the issue of concern would be his capacity to follow the course of the proceedings and assist in his defence by giving counsel instructions; overall there is evidence to suggest that he has had interactions with counsel and has understood them and has been negotiating with counsel around his trial." Dr Allnutt believed that Mr Smith "is capable of providing his version of the facts, even though he has lack of memory for the actual facts." Dr Allnutt concluded as follows -
"Generally I would be of the view that while this is a somewhat difficult case (given his lack of drive and concern about performance in neuropsychological assessment and the ongoing evidence for progenitive deficient), on balance, he is fit to stand trial."
I am satisfied upon Dr Allnutt's evidence that all of the criteria set out by Smith J in Presser are met. The one reservation I have is - as Dr Allnutt had - about Mr Smith's ability to follow the course of the proceedings.
Mr McCallum in his submissions - in which he made clear that he did not urge me to find one way or the other - drew my attention to the basis upon which Dr Allnutt reached his view about his client's ability to encode new material. I have some reservations about that ability but, like Dr Allnutt, on balance, which is the standard that I must apply, I find that he is able to encode new material and would be able to follow the course of the proceedings and I am of the opinion that he is fit to stand trial.
Needless to say, as the Act provides, a question of a person's unfitness for trial can be raised at anytime. It may well be, in a case such as this, that when the trial gets underway the concerns which the psychiatrist and the psychologist had in predicting or anticipating Mr Smith's future behaviour may be realised. It may be found that he is not able to follow the course of the proceedings but, at this stage, like them, I am limited to expressing an opinion as to the likelihood. Hence, I repeat, in my opinion Mr Smith is fit to be tried.
HIS HONOUR: I think that is all. I just express that opinion and then things follow according to the Act. The proceedings are to continue or recommence and Mr Shaw lent me this, the Howard Westmore book, Mr Davies if you would return that to Mr Shaw with my thanks. Now Mr McCallum.
MCCALLUM: Just in relation to the further conduct your Honour I suspect your Honour, the appropriate order to make is that your Honour will put it into a telephone call over at some stage.
HIS HONOUR: I will do whatever you two think is the appropriate course. What do I do?
MCCALLUM: Perhaps in four weeks time your Honour, if your Honour--
HIS HONOUR: Okay, give me a date, I'll make an order.
MCCALLUM: Wednesday the 19 October.
I list this matter for a telephone callover on Wednesday 19 October 2011.
HIS HONOUR: Any other order I need to make?
MCCALLUM: I'd ask your Honour to continue the bail.
HIS HONOUR: Present conditions Mr Davies?
DAVIES: Bail is not opposed.
Bail is continued on the same conditions as presently fixed, which means a blue form will be coming.
MCCALLUM: I know your Honour has stressed a number of times on each occasion that this mention has been mentioned in open court, that Mr Smith's name is not to be mentioned outside of the court. Just one matter that is causing him considerable stress and he has asked me to put on the record.
HIS HONOUR: Yes.
MCCALLUM: And that is your Honour there has apparently been some internet publicity connecting Mr Smith with the crimes that he is alleged to have committed and that is a matter that is causing him some considerable anxiety and stress your Honour and it is something that in his mind is creating perception that he is not going to be able to get a fair trial. He has just asked that I place that on the record your Honour.
HIS HONOUR: Am I right in thinking the reason for his name not being able to be mentioned in open court, is that it could identify the alleged victims, is that the case?
MCCALLUM: I suspect that is right your Honour.
DAVIES: That's correct your Honour.
HIS HONOUR: And am I right in thinking that anyone who identifies an alleged victim of a sexual assault outside the court room is guilty of an offence?
DAVIES: Yes your Honour.
HIS HONOUR: Mr Smith is quite right and thank you Mr McCallum for drawing it to my attention on two points. One is that it is important that Mr Smith receives a fair trial and any internet publicity could adversely impact on a jury, although hopefully no one would be reading it, but nevertheless it has that potential. Secondly, it should be noted that my understanding is, confirmed by Mr Davies, that publicising the name or identifying an alleged victim of a sexual assault outside the court is a criminal offence and in this case according to what I am told, identifying Mr Smith is a means of identifying the alleged victims. I'm just putting that on the record.
MCCALLUM: Thank you your Honour, I will make some inquiries about, I haven't done any searches for my own part to confirm the instructions, I've just been told today but I will do that your Honour--
HIS HONOUR: It's appropriate to put it on the record, there is nothing I can do about it apart from saying what I have said, which really doesn't go anywhere apart from confirming that Mr Smith should be concerned. It is appropriate for him to be concerned and people should not be disclosing his identity on the Internet and bail is continuing until a date to be fixed.
**********
Decision last updated: 08 May 2012
0
0
1