R v Mu

Case [2021] ACTSC 144 1 February 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v MU
Citation:	[2021] ACTSC 144
Hearing Dates:	10 November 2020, 27 November 2020
DecisionDate:	1 February 2021
ReasonsDate:	22 July 2021
Before:	Loukas-Karlsson J
Decision:	See [228]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to Plead – Intellectual Disability – General Principles – Presumption of Fitness – Determination on balance of probabilities – Criteria Considered – Accused found unfit to plead – Accused found unlikely to become fit to plead within 12 months
Legislation Cited:	Crimes Act 1900 (ACT) ss 309, 311, 312, 315, 315A, 315C, 316, 334 Criminal Code 2002 (ACT) s 405 Emergencies Act 2004 (ACT) s 116 Magistrates Court Act 1930 (ACT) ss 88B, 90B
Cases Cited:	Bailiff v The Queen [2011] ACTCA 7 Kesavarajah v The Queen (1994) 181 CLR 230 R v Al-Harazi (No 5) [2017] ACTSC 61 R v Bailiff [2010] ACTSC 54; 5 ACTLR 1 R v BF (No 4) [2019] ACTSC 346 R v Dashwood [1943] KB 1 R v Chemhere (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 18 May 2012) R v Chute (No 3) [2017] ACTSC 409 R v Dunne [2001] WASC 263 R v Fisher [2011] ACTSC 56; 210 A Crim R 199 Ngatayi v The Queen (1980) 147 CLR 1 R v Griffith [2008] ACTSC 77 Egan v JG [2010] ACTSC 53 R v House [1986] 2 Qd R 135; A Crim R 344 R v Monaghan (No 2) [2011] ACTSC 62 R v Monaghan [2009] ACTSC 61 R v Monfries (No 2) [2011] ACTSC 205 R v Presser [1958] VR 45 R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 R v Smith [2008] NSWDC 23 R v Steurer [2008] ACTSC 141 R v Tuigamala [2007] NSWSC 493
Parties:	The Queen (Crown) MU (Accused)
Representation:	Counsel K Lee (Crown) B Morrisroe (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Accused)
File Numbers:	SCC 103 of 2020; SCC 104 of 2020

LOUKAS-KARLSSON J:

Introduction

On 17 June 2020, I determined that I was satisfied there was a real and substantial question about MU’s (the accused) fitness to plead and I reserved the question for investigation: s 314(3) Crimes Act 1900 (ACT) (Crimes Act). After the investigation into the accused’s fitness to plead on 10 November 2020 and 27 November 2020, I found on 1 February 2021 that the accused was unfit to plead and unlikely to become fit to plead within the next 12 months: ss 312(2), 315A(3) and (4) Crimes Act. These are the reasons for those findings.

Procedural Background

This matter commenced in the Magistrates Court when the accused was charged with an offence contrary to s 116(1) of the Emergencies Act 2004 (ACT) that on 4 January 2020, he lit a fire during a total fire ban (the summary offence). The maximum penalty for this offence is 2 years imprisonment and or 200 penalty units, being a fine…

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 Mu

Details

AGLC: R v Mu [2021] ACTSC 144
Case: [2021] ACTSC 144
Decision Date

CaseChat Overview and Summary

The case of R v Mu involved a legal dispute regarding the accused's fitness to plead. The Supreme Court of the Australian Capital Territory presided over the case, and the decision was issued on 1 February 2021, with reasons provided on 22 July 2021. The case was heard before Justice Loukas-Karlsson, and the parties involved were the Crown, represented by Counsel K Lee, and the accused, represented by Counsel B Morrisroe and solicitors Boxall Legal. The case numbers were SCC 103 of 2020 and SCC 104 of 2020.

The legal issues in the case revolved around the determination of the accused's fitness to plead and whether he was likely to become fit to plead within the next 12 months. The court had to consider the statutory criteria set out in the Crimes Act 1900 (ACT) and relevant case law in making its decision.

Justice Loukas-Karlsson found that the accused was unfit to plead and unlikely to become fit to plead within the next 12 months. The court considered the evidence provided by experts and the parties, and applied the legal principles established in relevant case law. The court also determined that the accused was incapable of making an election for a special hearing to be a trial by a single judge without a jury.

As a result, the court made the following orders:

1. The accused is unfit to plead.
2. The accused is unlikely to become fit to plead within the next 12 months.
3. The accused is incapable of making an election to have a special hearing to be a trial by a single judge without a jury.
4. The Australian Capital Territory Administrative Tribunal (ACAT) is directed to appoint a guardian with power to notify the court whether in the guardian's opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.
5. The matter is to be set down for a special hearing.

The special hearing is to be a trial by a single judge without a jury and is listed before Justice Loukas-Karlsson to commence on 5 August 2021.

Orders