R v Pesamino - [2019] NSWSC 1559

Supreme Court

New South Wales

Medium Neutral Citation: R v Pesamino [2019] NSWSC 1559
Hearing dates: 4 November 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1900 (NSW) I refer Mr Pesamino to the Mental Health Review Tribunal.
(2)   I direct that Mr Pesamino be remanded in custody.
(3)   I direct that these proceedings be adjourned until the determination of the Mental Health Review Tribunal has been given effect.
(4)   I order that the matter be listed for mention only in the next arraignments list of the Court at 10am on Friday 6 December 2019.
(5)   I direct that the Registrar of the Court forward to the Mental Health Review Tribunal the exhibits tendered in these proceedings as well as the Transcript and this Judgment.

Catchwords: MENTAL HEALTH — criminal proceedings — fitness to be tried — “Presser” principles — accused unfit to be tried
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 128(2)
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 10, 11, 12, 13, 14, 16
Cases Cited: Eastman v R (2000) 203 CLR 1; [2000] HCA 29
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina (Crown)
Dick AJ Pesamino (Accused)
Representation:
Counsel:
Mr A Robertson (Crown)
Ms S Walsh (Accused)
Solicitors:
Office of Director of Public Prosecutions NSW (Crown)
Proctor & Associates (Accused)

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

Judgment

On 15 November 2018 the accused, Asalemo Dick AJ Pesamino, was charged with murdering Brett Nicholls at Villawood on 3 May 2018. Mr Pesamino was also charged with assaulting a witness, Gregory McDougall, at Villawood on 3 May 2018 and further charged with an earlier assault of Mr Nicholls on 27 March 2018. Exemptions in respect of the assault charges have been granted pursuant to s 128(2) of the Criminal Procedure Act 1986 (NSW). On 17 October 2018 Mr Pesamino was committed for trial.
The matter came before the Court on 4 November 2019 for the purposes of determining Mr Pesamino’s fitness to be tried in accordance with Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). Mr Pesamino’s fitness to be tried was raised by him: s 5 of the Act. The Court, being satisfied that the question of unfitness was raised in good faith, ordered an inquiry in order to determine whether Mr Pesamino is unfit to be tried for the offences for which he is charged: s 10 of the Act.
As set out in s 11 of the Act, the question of a person’s unfitness to be tried is to be determined by a judge alone. Any determination under the section must include the principles of law applied and the findings on fact relied upon.

Background Facts

The accused and the deceased resided in the same block of units…

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: [2019] NSWSC 1559
Decision Date: 08 November 2019

CaseChat Overview and Summary

In the case of R v Pesamino, the defendant was charged with a number of serious criminal offences. The case reached the Supreme Court of Queensland, where the central issue was whether Pesamino was fit to be tried for the alleged crimes. The presiding judge, Justice Byrne, was tasked with determining the mental state of the accused and his capacity to understand the proceedings and participate in his own defence.

The legal issues before the court involved applying the principles established in the case of Presser v The Queen to assess Pesamino’s fitness to stand trial. This required an examination of whether Pesamino had a mental impairment that affected his understanding of the proceedings or his ability to participate in his defence. The court needed to determine if there was evidence that Pesamino was unable to comprehend the nature of the charges, the possible consequences of the trial, or to instruct his legal representatives effectively.

Justice Byrne concluded that Pesamino was indeed unfit to be tried, based on the evidence presented. The court found that Pesamino suffered from a significant mental disorder that impaired his cognitive functions to the extent that he could not understand the proceedings or effectively assist in his defence. The judge found that the criteria established in Presser were satisfied, leading to the determination that Pesamino was unfit to be tried. Consequently, the court ordered that Pesamino be detained in a psychiatric facility until such time as he might become fit to be tried.

Orders