R v Monaghan (No 2)

[2011] ACTSC 62

R v JONATHON MONAGHAN (NO 2)
[2011] ACTSC 62 (14 April 2011)

CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming incapable during trial – accused found unfit to plead – question of whether likely to become fit to plead within twelve months – relevant principles and factors – finding revisited – accused fit to plead.
CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming incapable during trial – intellectual disability – need for specific assistance to participate in the trial adequately – fit if assistance provided – requirement to provide such assistance.

Criminal Code 2002 (ACT), ss 310, 318
Crimes Act 1900 (ACT), ss 311, 315A, 316
Mental Health (Treatment and Care) Act 1994 (ACT), Div 4.5, s 36A
Guardianship and Management of Property Act 1991 (ACT)

Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 9

American Psychiatric Association’s Diagnostic and Statistical Manual IV – Text Revision

R v Monaghan [2009] ACTSC 61
R v Fisher [2011] ACTSC 56
R v Presser [1958] VR 45
R v Chanthasaeng (2008) 7 DCLR (NSW) 158
Ngatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
Eastman v The Queen (2000) 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
R v Smith [2008] NSWDC 23
R v Tuigamala [2007] NSWSC 493

No. SCC 26 of 2009

Judge:             Refshauge J
Supreme Court of the ACT

Date:              14 April 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 26 of 2009
AUSTRALIAN CAPITAL TERRITORY )          

THE QUEEN

v

JONATHON MONAGHAN

ORDER

Judge:  Refshauge J
Date:  14 April 2011
Place:  Canberra

THE COURT FINDS THAT:

1. So long as the special measures outlined in the reasons for judgment delivered on 14 April 2011 are implemented, Jonathon Monaghan is fit to plead.

1. This application has taken a slightly unusual turn, which is now to result in a change of decision.

1. The accused, Jonathon Monaghan, was charged with three offences:  aggravated robbery (s 310 of the Criminal Code 2002 (ACT)) and two counts of dishonestly and without consent driving a motor vehicle (s 318(2) of the Criminal Code).

1. A question arose about Mr Monaghan’s fitness to plead and an investigation was conducted under s 316 of the Crimes Act 1900 (ACT). Following that investigation, I found Mr Monaghan unfit to plead. See R v Monaghan [2009] ACTSC 61. I was, however, not able to make a finding, as required by s 315A(4) of the Crimes Act, as to whether Mr Monaghan was likely to become fit to plead within twelve months:  R v Monaghan (at [38]). Accordingly, I adjourned the proceedings for determination of that issue.

1. It is regrettable that this is not the only time that this part of the determination of the question of fitness to plead has been overlooked.  See R v Fisher [2011] ACTSC 56 (at [80]).

1. Nevertheless, a further report of Dr Graham George dated 9 October 2009 was prepared.  Unfortunately,…