R v Khan (No 2) - [2018] NSWSC 663

Supreme Court

New South Wales

Medium Neutral Citation: R v Khan (No 2) [2018] NSWSC 663
Hearing dates: 16 May 2018
Date of orders: 16 May 2018
Decision date: 16 May 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) The jury is discharged.
(2) The proceedings are listed before me for further directions at 9.15am on Monday, 9 July 2018 with a view to setting a hearing date to determine the issue of the accused’s fitness to stand trial.

Catchwords:
CRIMINAL LAW – Practice and procedure – Where accused indicted for committing a terrorist act – Alternative count of attempted murder – Where accused pleaded not guilty to both counts on the grounds of mental illness – Where issue of the accused’s fitness to stand trial arose during the course of the trial – Inconclusive preliminary medical opinion as to fitness – Consideration of legislative scheme where issue of fitness raised – Necessity to conduct fitness hearing – Jury discharged and matter adjourned for further directions
WORDS AND PHRASES – “raising question of fitness”
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Code 1995 (Cth)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: R v Khan (No 1) [2018] NSWSC 577
R v Presser [1958] VR 45
R v Sharrouf [2008] NSWSC 1450
R v Tier [2001] NSWCCA 53
R v Zhang [2000] NSWCCA 344
Category: Procedural and other rulings
Parties: Regina (Crown)
Ihsas Khan (Accused)
Representation:
Counsel:
P W Neil SC and A N Williams (Crown)
M Ierace SC (Accused)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Legal Aid (NSW) (Accused)

File Number(s): 2016/272232
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

The accused Ihsas Khan has pleaded not guilty on the grounds of mental illness to an indictment alleging that on or about 10 September 2016 at Minto in the State of New South Wales, he engaged in a terrorist act and in the alternative, that he wounded Wayne Greenhalgh with intent to murder him. The first of those counts is contrary to s 101 of the Criminal Code1995 (Cth) (“the Code”). The alternative count is contrary to s 27 of the Crimes Act 1900 (NSW) (“the Act”).
The Crown case is that on 10 September 2016, the accused was armed with a knife, and saw Mr Greenhalgh walking along a street in Minto. He stabbed him repeatedly, shouting “allahu akbar” and making reference to (inter alia) “brothers being killed in Syria”. There is no dispute about the circumstances of the attack on Mr Greenhalgh. The sole issue, as would be evident by the accused's pleas, concerns his mental state at the time of the attack.
The accused's trial initially commenced before me on 30 April 2018, but the jury was discharged on 2 May 2018 for reasons given at the time: R v Khan (No 1) [2018] NSWSC 577. The current trial commenced on 2 May 2018. By 9 May 2018, the proceedings had reached the stage where the totality of the evidence surrounding…

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 Khan (No 2)

Details

AGLC: R v Khan (No 2) [2018] NSWSC 663
Case: [2018] NSWSC 663
Decision Date: 16 May 2018

CaseChat Overview and Summary

The case of R v Khan (No 2) involved the respondent, Khan, who was indicted for committing a terrorist act and an alternative count of attempted murder. Khan pleaded not guilty to both counts, citing mental illness as his defence. During the trial, the issue of Khan's fitness to stand trial arose, prompting the need for a medical assessment. The preliminary opinion provided by medical experts was inconclusive regarding Khan's fitness, leading to a necessity for a formal fitness hearing.

The legal issues before the court involved determining the appropriate procedure to follow when a defendant raises a question of fitness during a trial, especially in cases involving serious offences such as terrorism and attempted murder. The court had to consider the relevant legislative framework that governs the conduct of such hearings, ensuring that the process adheres to the principles of justice and fairness while protecting the rights of the defendant.

The court examined the legislative provisions that mandate a fitness hearing when the issue of a defendant's fitness is raised. Given the inconclusive preliminary medical opinion, the court concluded that a formal fitness hearing was necessary. Consequently, the jury was discharged, and the matter was adjourned to allow for further directions to be given, including the scheduling of the fitness hearing.

The final orders of the court included the discharge of the jury and the adjournment of the trial for further directions. The court's decision underscored the importance of adhering to legislative requirements when dealing with issues of a defendant's fitness to stand trial, ensuring that the legal process is conducted appropriately and justly.

Orders