R v Marcin Kaczmarek
[2011] ACTSC 177
R v MARCIN KACZMAREK
[2011] ACTSC 177 (27 October 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – fitness to be tried – question arose during committal proceedings as to fitness to be tried – referred to the Supreme Court under s20B of the Crimes Act 1914 (Cth) – fit to be tried – remitted back to the Magistrates Court.
Criminal Code 1995 Act (Cth), s 474.17
Crimes Act 1914 (Cth), ss 4G, 20B
R v Presser [1958] VR 45
Kesavarajah v The Queen (1994) 181 CLR 230
EX TEMPORE JUDGMENT
No. SCC 349 of 2011
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 27 October 2011
IN THE SUPREME COURT OF THE )
) No. SCC 349 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
V
MARCIN KACZMAREK
ORDER
Judge: Refshauge ACJ
Date: 27 October 2011
Place: Canberra
THE COURT FINDS THAT:
Marcin Kaczmarek is fit to be tried.
AND THE COURT ORDERS THAT:
The matter be remitted to the Magistrates Court on 3 November 2011, under s 20B(2) of the Crimes Act 1914 (Cth), to continue the committal proceedings.
Mr Marcin Kaczmarek was charged before the Magistrates Court of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, harassing, an offence under s 474.17(1) of the Criminal Code Act 1995 (Cth).
On 5 September 2011, the Learned Magistrate, before whom the matter came, noted that a question arose as to the fitness of Mr Kaczmarek to be tried. The Learned Magistrate ordered a report from Forensic Mental Health ACT. That report, dated 5 October 2011, was placed before the court on 7 October 2011.
The offence under s 474.17(1) of the Criminal Code Act of using a carriage service to menace, harass or cause offence is punishable by imprisonment for up to three years.
A charge which carries a maximum penalty of more than twelve months imprisonment is an indictable offence and the proceedings before the Learned Magistrate were, therefore, committal proceedings. See s 4G of the Crimes Act 1914 (Cth).
Under s 20B of the Crimes Act 1914 (Cth), in committal proceedings, where a question of the person’s fitness to be tried is raised, the Magistrate must refer the proceedings to the court in which the proceedings would have been referred, had the person been committed for trial. That, of course, was this court and his Honour accordingly referred the proceedings to this court for determination of whether Mr Kaczmarek is fit to be tried.
A report of 5 October 2011 was received from Dr John Kasinathan, a consultant forensic psychiatrist. He examined Mr Kaczmarek on 5 October 2011. I have read that report.
Dr Kasinathan had earlier prepared a forensic psychiatric report and had access to it, and also to an earlier report prepared by consultant psychiatrist, Dr Graham George. Dr Kasinathan had, too, access to Mr Kaczmarek’s electronic mental health records with Mental Health ACT.
Dr Kasinathan found that Mr Kaczmarek suffers from paranoid schizophrenia with a pre-existing diagnosis of obsessive compulsive disorder.
He examined Mr Kaczmarek clinically on 5 October 2011. He undertook that assessment, by reference to his clinical assessment and the earlier material (at [7] above), with regard to the tests for fitness to be tried, as set out in R v Presser [1958] VR 45, approved in the High Court in Kesavarajah v The Queen (1994) 181 CLR 230.
By that test, Dr Kasinathan found that Mr Kaczmarek was fit to be tried. No submissions were made to me to the contrary.
Accordingly, I find that Marcin Kaczmarek is fit to be tried.
I therefore order under s 20B(2) of the Crimes Act 1914 (Cth) that the matter be remitted to the Magistrates Court on 3 November 2011 to continue the committal proceedings.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 October 2011
Counsel for the Crown: Mr D Berents
Solicitor for the Crown: Commonwealth Director of Public Prosecutions
Counsel for the Accused: Mr J Robertson
Solicitor for the Accused: Legal Aid ACT
Date of hearing: 27 October 2011
Date of judgment: 27 October 2011
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