R v Lipohar

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lipohar [2024] NSWDC 374

Hearing dates:

13 August 2024

Date of orders:

26 August 2024

Decision date:

13 August 2024

Jurisdiction:

Criminal

Before:

Bennett SC ADCJ

Decision:

The Accused is Unfit for Trial

Catchwords:

Mental Health Fitness Hearing – Accused’s fitness to stand trial

Legislation Cited:

Crimes Act 1900 s33(1)(b)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Part 4

Cases Cited:

Kesavarajah v The Queen [1994] HCA 41

Reg. v.Presser(3) (1958) VR 45

Category:

Principal judgment

Parties:

Dushan James Lipohar (Accused)
Rex (Prosecutor)

Representation:

Counsel:
M Davies (Counsel for the accused)
T Bailey (Crown)
Solicitors:
R Harrison (Defence)
Office of the Director of Public Prosecutions

File Number(s):

2023/00219775

Publication restriction:

Nil

JUDGMENT

Introduction

1. Dushan James Lipohar was committed to the District Court of New South Wales for the following offence presented upon indictment in the following terms:

On 10 July 2023, at Albury in the State of New South Wales, did wound James Wearing with intent to cause James Wearing grievous bodily harm.

S 33(1)(b) Crimes Act 1900 Law part code 63628

2. It is uncontroversial that the question of fitness might be raised when it was in the prosecution sequence and that there was no need for the accused to be arraigned before the question is considered and determined.

3. It is also uncontroversial that the question of fitness was raised in good faith.

The Hearing

4. The proceedings were mentioned on 12 August 2024, the first day of the current sittings of the court in Albury. The parties provided the following documents:

1. The indictment.

2. Proposed orders upon which the parties are agreed should the accused by referred to the Mental Health Review Tribunal.

3. The Crown Case Statement.

4. The report from Dr Adam Martin, Forensic Psychiatrist, of 15 May 2024.

5. The reports of Dr Richard Furst, Forensic Psychiatrist, of 21 December 2023 and 26 July 2024.

The Crown Case

5. About 10:00 am on Monday 10 July 2023 James Wearing and his co-worker were delivering furniture to an address in Albury, during which they disassembled a bed so that it could be brought into the apartment where it would be reassembled. When he went to retrieve a piece of the furniture from outside the accused tapped his shoulder, and felt a sharp object penetrate his neck. The accused had two knives. Mr Wearing retreated to the apartment, locked the door, followed by the accused who kicked at it. The three-to-five-centimetre knife wound to the left of Mr Wearing’s neck was not life threatening but the weapon narrowly missed a critical artery. The police arrested the accused in Unit 4 in the building. He appeared confused and disorientated. He said initially he was troubled by the noise but later offered that he thought Mr Wearing was there to rob him.

The Accused’s Fitness

6. These proceedings are pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which in Part 4 provides for the determination of a…