R v KF

[2011] NSWLC 14

Local Court

New South Wales

Medium Neutral Citation:	R v KF [2011] NSWLC 14
Hearing dates:	7/04/2011
Decision date:	19 May 2011
Jurisdiction:	Criminal
Before:	Magistrate Heilpern
Decision:	The application is dismissed, and an urgent hearing date will be allocated.
Catchwords:	CRIMINAL LAW - application for permanent stay of proceedings - defendant suffering from dementia and adjustment disorder with depressed mood - whether defendant fit to be tried - Presser test
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Connelly v DPP [1964] AC 1254 Grassby v The Queen (1989) 168 CLR 1 Jago v District Court of NSW (1989) 168 CLR 23 Mantell v Molyneux [2006] NSWSC 955 Police v AR (Children's Law News, 18 November 2009) R v Basha (1989) 39 A Crim R 337 R v Littler [2001] NSWCCA 173 Ngatayi v R (1980) 147 CLR 1 R v Presser [1958] VR 45 Watson v Attorney-General (NSW) (1987) 8 NSWLR 685
Category:	Procedural and other rulings
Parties:	Crown KF (Defendant)
Representation:	Mr G Kumarasinhe for the Defendant Mr Baker, Police Prosecutor
File Number(s):	2010/212005
Publication restriction:	It is an offence to publish the name, or any information that identifies a complainant in certain sexual offence cases.

JUDGMENT

1. An application has been made for a permanent stay of proceedings, and this judgment gives reasons for the dismissal of that application. As this is the second such application I have dealt with in a matter of months, I have put my reasons in writing lest there be any assistance to other magistrates considering such an application, and so that my reasons are clear for both parties to consider.

1. The defendant, KF, was born in 1931. He has no prior convictions, has been married for the past 55 years, did not attend high school and has farmed for all of his working life. He has a seriously disabled granddaughter (who I shall refer to as A) who is aged in her 20's and has been diagnosed with PCDH19 gene mutation. A's cognitive ability is similar to a three-year-old child. She resides in specialist intensive supported accommodation.

1. During a visit with A, the defendant is alleged to have deliberately rubbed her breast for sexual gratification. The facts state that a disability support worker witnessed the incident and reported it to the Program Co-ordinator immediately who contacted the police.

1. The defendant has been charged with aggravated indecent assault. An application has been made that these proceedings be permanently stayed as the defendant, through his legal representative, claims that he is unfit to be tried.

1. This judgment is written without the benefit of the transcript of the submissions from the parties.

Legal Issues

1. There are five legal issues which need to be considered before moving to the evidence supporting the application:

• "Fitness to Plead" or "Fitness to be Tried"
• Permanent Stay in the Local Court
• The onus and standard of proof
• The " Presser " test
• Later cases

Fitness to be Tried

1. During the application, the term "fitness to plead" was…