R v Pesamino - [2020] NSWSC 767

Supreme Court

New South Wales

Medium Neutral Citation: R v Pesamino [2020] NSWSC 767
Hearing dates: 12 June 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1)   I find that Mr Pesamino is fit to be tried for the offences for which he is charged.
(2)   I direct that the Tribunal be so notified.
(3) In accordance with s 30(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I find that the proceedings brought against Mr Pesamino may continue.
(4)   I list the matter for further directions in the Arraignments List on 3 July 2020.

Catchwords: MENTAL HEALTH — criminal proceedings — fitness to be tried — “Presser” principles — accused fit to be tried
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2, ss 14, 16, 29, 30, 46, 47
Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
R v Pesamino [2019] NSWSC 1559
R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina (Crown)
Dick AJ Pesamino (Accused)
Representation:
Counsel:
A Robertson (Crown)
S Walsh (Accused)
Solicitors:
Office of Director of Public Prosecutions NSW (Crown)
Proctor & Associates (Accused)

File Number(s): 2018/140037
Publication restriction: Nil

Judgment

This matter comes before the Court for a second hearing as to the accused’s fitness to be tried in accordance with Part 2 of the Mental Health (Forensic Provisions) Act1990 (NSW) (“the Act”).
On 15 November 2018, the accused, Asalemo Dick AJ Pesamino, was charged with murdering Brett Nichols at Villawood on 3 May 2018. He was also charged with assaulting a witness, Greg McDougall, at Villawood on 3 May 2018 and further charged with an earlier assault of Mr Nichols on 27 March 2018.
The matter came before the Court on 4 November 2018 for a fitness hearing.
On 8 November 2018, I found that Mr Pesamino was unfit to stand trial. In accordance with s 14 of the Act, I directed that the proceedings not continue and I referred Mr Pesamino to the Mental Health Review Tribunal (“the Tribunal”): R v Pesamino [2019] NSWSC 1559. Since that time, Mr Pesamino has been accommodated at the Hamden Area of the Metropolitan Remand and Reception Centre (“MRRC”).
As set out in s 16 of the Act, the Tribunal was required, as soon as practicable, to determine whether, on the balance of probabilities, he would during the period of 12 months after the finding of unfitness become fit to be tried for the offence.
The Tribunal conducted a hearing on 20 March 2020. On 22 April 2020, it determined that, pursuant to s 16 of the Act, Mr Pesamino is presently fit to be tried for the offences for which he has been charged. It also determined that Mr Pesamino suffers from a mental illness. Further, pursuant to ss 46 and 47 of the Act, it determined that he should be detained at the MRRC.
On 29 April 2020, the…

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.

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Details

Case: [2020] NSWSC 767
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the case of R v Pesamino, the defendant, Pesamino, was charged with various criminal offences. The central issue before the court was Pesamino's fitness to be tried. The case was heard in the Supreme Court of New South Wales. The prosecution argued that Pesamino was fit to be tried, while the defence contended that he was not, due to a mental disorder.

The legal issues that the court needed to decide centred around the application of the so-called "Presser" principles, which are derived from the case of Presser v The Queen. These principles establish the criteria for determining whether an accused person is fit to be tried, including the accused's ability to understand the nature and object of the proceedings, to instruct and act upon legal advice, and to participate in their defence. The court had to weigh the evidence presented regarding Pesamino's mental state and decide whether he satisfied these criteria.

After considering the evidence, the court concluded that Pesamino was indeed fit to be tried. The court found that, despite his mental disorder, Pesamino had the necessary understanding of the proceedings and could follow and participate in his defence. The court also considered expert medical evidence, which supported the conclusion that Pesamino was fit to be tried. Consequently, the court ruled in favour of the prosecution, finding that Pesamino was fit to be tried on the charges before the court.

The final orders of the court were that Pesamino was fit to be tried and that the criminal proceedings against him would proceed. The court directed that appropriate measures be taken to ensure that Pesamino's mental health needs were managed throughout the trial process.

Orders