R v Polanski - [1999] NSWSC 433

CITATION: R v Polanski [1999] NSWSC 433 revised - 31/08/99

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): 70017/98

HEARING DATE(S): 3-5/5/99

JUDGMENT DATE:
5 May 1999

PARTIES :

Crown
Rafal Polanski

JUDGMENT OF: Wood CJatCL

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER:

COUNSEL : G.E. Smith (Crown)
J. Nicholson SC (Accused)

SOLICITORS: DPP
Legal Aid

CATCHWORDS:

DECISION: Unfit to Plead

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
No. 700017/98
WOOD CJ at CL

WEDNESDAY 5 MAY 1999

REGINA V RAFAL POLANSKI

JUDGMENT

1 HIS HONOUR: This matter comes before the Court as an inquiry into the fitness of the accused to be tried for the offence of murder of which he has been charged. The case is one in which a question as to his fitness to be tried arose prior to arraignment and the inquiry has been conducted following a direction from the Attorney-General pursuant s 8(1) of the Mental Health (Criminal Procedure) Act 1990.
2   The accused has elected for this issue to be tried by Judge alone following advice which I am satisfied was given to him by his solicitor.
3   As the Court of Criminal Appeal said in Mifsud, unreported, 8 November 1995, for an accused to make such an election he or she must not only receive that advice but must also understand what is involved in the election.
4   Notwithstanding some initial concerns in this regard I am, in this case, satisfied that the accused had sufficient capacity to understand, and did understand, what was involved and gave instructions for the matter to proceed Judge alone. This follows from the evidence of his solicitor, from the report of Dr Thompson and from the accused's indication that he would accept the advice which Mr Nicholson, of Senior Counsel, said was given to him, that it was preferable for the issue to be heard by Judge alone.
5   It is alleged by the Crown that the accused killed one Jozef Zimmer in a boarding house where that man lived during the evening of 18/19 October 1997. In substance, it is the Crown case that the accused, who had been drinking at the Polish Club, from which he had earlier been evicted, went with Mr Zimmer to the boarding home to sleep. There it is alleged that he struck him on the head several times with a fire extinguisher before stabbing him in the back, ransacking the flat and stealing several items of the deceased's property. It is alleged that the accused covered the body of the deceased with a mattress and other items.
6   In an ERISP he admitted to being responsible for striking the deceased with the fire extinguisher but said that he did so in circumstances where he was heavily intoxicated and where he was fearful of being raped by the deceased. Just prior to the attack he said that the deceased had played a pornographic video displaying homosexual conduct between males and had…

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 Polanski

Details

AGLC: R v Polanski [1999] NSWSC 433
Case: [1999] NSWSC 433
Decision Date: 5 May 1999

CaseChat Overview and Summary

In the case of R v Polanski, the Supreme Court of New South Wales was tasked with determining whether the accused, Rafal Polanski, was fit to stand trial for the alleged murder of Jozef Zimmer. The court was required to decide if Polanski was capable of understanding the nature of the charges against him, the proceedings, and the ability to properly instruct his legal representatives. This decision was made under the Mental Health (Criminal Procedure) Act 1990. The court considered the opinions of three expert psychiatrists who had assessed Polanski, as well as other evidence such as Polanski's history, work performance, and letters to his mother.

The court found that the opinion of Dr. Canaris, who had spoken to Polanski in his native language and established a rapport, was the most reliable. The court preferred Dr. Canaris' opinion over the other two psychiatrists, Dr. Strum and Dr. Thompson, because Dr. Canaris had the advantage of speaking directly with Polanski without the need for an interpreter. The court also took into account Polanski's history of mental disturbance and abnormal behavior, which suggested that he was not feigning his present condition. The court concluded that, on the balance of probabilities, Polanski was unfit to be tried and referred the matter to the Mental Health Review Tribunal. Polanski was to remain in custody until the Tribunal completed its review.

Orders