R v Jones

[2019] NSWDC 655

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Jones [2019] NSWDC 655
Hearing dates:	4 November 2019, 7 November 2019
Decision date:	07 November 2019
Jurisdiction:	Criminal
Before:	Haesler DC DCJ
Decision:	Trial date vacated. Matter fixed for fitness hearing - see [23] to [25].
Catchwords:	CRIMINAL PROCEDURE - Trial - Sexual offence proceedings — Adjournment - unfitness to be tried - issue genuinely raised   MENTAL HEALTH - Practice and procedure - unfitness to be tried issue genuinely raised - procedural fairness
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 (NSW) Mental Health (Forensic Procedure) Act 1900 Bail Act 2013
Cases Cited:	R v Presser [1958] VR 45
Category:	Procedural and other rulings
Parties:	Gary Jones (the accused - a pseudonym) Director of Public Prosecutions
Representation:	Solicitors: Mr B Peterson, RMB Lawyers (for the offender) Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2018/00320930
Publication restriction:	Pseudonyms have been used for the names of the accused and the complainants who were at the relevant times children. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes

Judgment

1. Pseudonyms have been used for the names of the accused and the complainants who were at the relevant times children. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes.

Important matters for trial

2. Mr Jones was born in 1946. He is now 73 years old. In October 2018 he was charged with three counts alleging the indecent assault of his daughter “Betty” and nine counts alleging the indecent assaults on his daughter “Jill”. The events are said to have occurred in 1980 through to 1983: s 61E(1) Crimes Act 1900 (NSW), as it then was.

3. Mr Jones was committed for trial in May 2019.

4. On 2 July 2019 a 12 count indictment was presented. Mr Jones was not arraigned but his solicitor indicated that pleas of not guilty would be entered at trial. His trial was fixed for 11 November 2019. It is now the only trial listed for Court 3, Wollongong District Court that day. It is a category A priority matter. It has before been before this court on 4 June 2019, 2 July 2019 and on 16 July 2019, for directions and the super call over of all trials listed in the Wollongong District.

Application to vacate trial date

5. On 5 November 2019, at the call over to confirm trial readiness, Mr Peterson, solicitor for the accused, asked that the trial date be vacated. Mr Coulton, Solicitor Advocate, for the Director of Public Prosecutions, did not oppose the application. I refused to grant the application. I stood the matter over to 2 PM today so that the issues raised could be properly and fully ventilated.

6. On 5 November 2019, I received a medical report from Dr Krishnan, a geriatrician, dated 23 October 2019. The report raises concerns about Mr Jones’ capacity to comprehend things when confronted with unfamiliar and complex situations.

7. Mr Jones has a number of significant cognitive disabilities. They date back to 1999, when he was diagnosed with meningioma; a tumour of the meninges- the brain’s membranes. He suffered post-operative short-term memory loss and personality change. Dr Krishnan notes that:

• Mr Jones has improved since but suffered two major breakdowns with depression.

• His recent memory is not great but that his remote memory is reasonable to some extent.

• Mr Jones’ wife does most things for him.

• Some symptoms and signs of frontal lobe impairment.

• Problems associated with cognition that result from chronic opioid use related to a long-term back pain problem.

8. Dr Krishnan concludes, that after recent cognitive testing:

“Gary can cope well, yes, he can do simple one stage commands. He does have some insight into his medical illness…. I suspect that when he is outside his routine, outside his comfort zone, he has trouble comprehending complex issues, especially in a complex situation… I am worried that Gary when put in an unfamiliar complex situation like a court situation, he will really struggle to comprehend a lot of things, especially with his cognitive disabilities in multiple domains…. I suspect that Gary would be suffering in such a situation and he might not be able to do a proper trial, given his multiple cognitive disabilities stated above.”

9. The adjournment application was made on the basis of that opinion. If granted it will mean that an enquiry into Mr Jones’ fitness to be tried must be held: see Mental Health (Forensic Procedure) Act 1900.

10. Initially, I was not convinced such an enquiry was necessary, although I accept that the issue was raised in good faith.

11. If there is a genuine issue as to an accused’s fitness then of course the proposed trial must be delayed if the issue of fitness cannot be resolved before the date fixed for trial. I note that this trial was fixed, with priority, some months ago. More importantly there has already been a delay of 36 years in bringing the matter before the court. It appears Mr Jones condition will not improve and could deteriorate, so the sooner the matter is resolved, the sooner the inevitable stressors and burdens on both the accused and the witnesses for the prosecution will end.

12. A court must also take into account the consequences to the system if trials are taken out of busy lists with insufficient time to list other matters. In this case special arrangements have been made for an acting judge to attend Wollongong next week. Case management and costs to system should never be an end in themselves but they remain a consideration.

13. Today I received an affidavit from Mr Petersen. He sets out the difficulties he has had in obtaining instructions and the crucial role played by Mrs Jones in assisting her husband in all aspects of his life. She will be a defence witness at trial. In the usual course she would not therefore be in court able to assist him in court until after she has given evidence. If allowed to remain to help the prosecution might have a ready basis to attack her credibility. If she remained in court and an attack was made on her credibility as a consequence, the trial judge would have to astutely and carefully construct a direction so as not adversely affect the case of either party.

14. It would thus be of considerable assistance, whether the trial proceeds as a trial or a special hearing pursuant to the Mental Health (Forensic Procedure) Act, if an alternative support person can be made available. That cannot happen next week. Mr Petersen also notes that since coming to Wollongong to prepare for trial Mr Jones has had a number of falls – the result of his confusion in unfamiliar surroundings.

15. I am not being asked to determine fitness today. Frankly, a basis for such a determination has not been shown and appropriate and innovative directions and procedures may be able to alleviate unfairness. But, as Mr Petersen properly submits, I am not being asked to determine the matter today, just vacate and adjourn the proceedings so that a fitness hearing can be held and all relevant evidence presented. This would include additional and more comprehensive defence medical opinion and that prepared for the Crown. Such proceeding are not adversarial.

16. The Mental Health (Forensic Provisions) Act 1990 provides:

If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence: s 8. [emphasis added]

17. Accordingly, the Court must as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence: s10.

18. The main legal principle that applies to an application to vacate a trial date is procedural fairness. While this court can, and often does, refuse an adjournment application it must ensure that both parties have a reasonable opportunity to present their case.

19. A court must also consider the circumstances which gave rise to the application and the consequences to the party if an adjournment is not granted: To what extent, if any, will the case for the applicant be prejudiced?

Determination

20. The issue having been genuinely raised and the application not being opposed the parties must be given the opportunity to explore this issue. If the trial proceeds next week and the accused is arraigned when not in fact fit - the trial will miscarry. The trial was able to be listed expeditiously. An adjournment will cost the court listing time next year and arrangements made for the second judge in Wollongong will need to be cancelled. Another trial cannot now be listed.

Determining Fitness or unfitness to be tried

21. A fitness hearing must be conducted in a non-adversarial manner. The issues to be raised are those set out in R v Presser [1958] VR 45, at 48.

The accused needs:

1. to be able to understand what it is that he is charged with

2. to be able to plead guilty or not guilty to the charge

3. to exercise her/his right to challenge members of the jury panel

4. to understand generally the nature of the proceedings, namely that it is an inquiry or trial as to whether he did what he is charged with

5. to be able to follow the course of the proceedings so as to understand what is going on in a general sense, though he need not of course understand the purpose of all the various court formalities

6. to be able to understand the substantial effect of the evidence to be given against her/him, and

He needs:

7. to be able to make his defence or answer the charge

8. to be able to do this through his counsel and solicitor by giving any necessary instructions and letting her/his lawyers know what his version of the facts is

9. if necessary to be able to tell the Court what his version of the facts is (although he need not be conversant with court procedure or have the mental capacity to make an able defence).

22. Mr Petersen requires 6 week qualifying a psychiatrist. He consents to Mr Jones seeing a Crown psychiatrist.

Orders

23. I vacate the trial fixed for 11 November 2019.

24. I fix the matter for fitness hearing on 24 February 2020

25. I fix Tuesday 11 February for mention and further direction. Mr Jones excused on that day. In accordance with the Bail Act 2013 the present bail continues until further order.

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Amendments

11 November 2019 - Typographical error in [11]

Decision last updated: 11 November 2019