R v R - [2003] VSC 187

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1450 of 2002

QUEEN

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-5 March 2003
DATE OF RULING:	5 March 2003
DATE OF REASONS:	5 June 2003
CASE MAY BE CITED AS:	R v R
MEDIUM NEUTRAL CITATION:	[2003] VSC 187

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Criminal Law – Charge of attempted murder – Application of provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Defendant with significant intellectual and hearing disabilities – Defendant unfit to be tried – Special Hearing – Availability of defence of mental impairment

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Office of Public Prosecutions
For the Accused	Ms C Randazzo	Victoria Legal Aid

HIS HONOUR:

On 1 November 2001, R stabbed Mrs K three times to the head and neck. R and Mrs K were neighbours in a Melbourne beach suburb. What follows is a summary of events, from the perspective mainly of Mrs K. It is difficult to provide the perspective of R, given his disabilities. Those disabilities were the subject of expert evidence, including from a psychiatrist, Dr O’Sullivan. Dr O’Sullivan reported, in November 2002, that it was his opinion that R’s mental processes were substantially impaired by reasons of hypoxic brain injury at birth, which had left R with profound bilateral deafness, a very low IQ (estimated as 65-70 by Dr O’Sullivan and a psychologist experienced in dealing with deaf patients) and with clinical evidence of a specific frontal lobe impairment. Ultimately, I had before me reports from, and I listened to evidence as to R’s disabilities being given by, five experts. There were three psychiatrists, (Dr Lester Walton, Dr Brendan O’Sullivan and Dr Douglas Bell), a psychologist, (Ms Ortillia Rodriguez) and a linguistic skills expert, (Ms Marianne Bridge).

It was in August 2001, that Mrs K with her husband and three sons, became neighbours of R. They moved into the house next to where R had lived with his mother for many years. Mrs K learned from other neighbours that R was deaf and, in other respects, somewhat different. When Mrs K, then aged 41, first met R, then aged 35, she greeted him as neighbours do. He did not respond to her greeting.

In August and September, there were a number of unneighbourly incidents. K’s sons reported to her that R had abused them when they were playing. They had been playing on a bike path, which runs along an embankment which is at the rear of the neighbouring properties. Shortly after that, one of Mrs K’s dogs got out of the K’s property. It was recovered limping from the R’s property. On 8 September, Mr K used a chainsaw to cut back the tree overgrowth on the strip of land between the embankment and the K’s property. As he was doing so, R and R’s mother approached Mr K. They asked him what he was doing, and he…

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 R

Details

AGLC: R v R [2003] VSC 187
Case: [2003] VSC 187
Decision Date: 5 June 2003

CaseChat Overview and Summary

The defendant, R, was charged with the attempted murder of a person. The matter came before the Supreme Court of Victoria, where the question of R's fitness to be tried was raised due to concerns about their intellectual and hearing disabilities. The prosecution sought to have R found fit to be tried, while the defence argued that R was unfit to be tried under the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. A special hearing was held to determine R's fitness to be tried, and the court was required to assess whether the defence of mental impairment was available to R.

The court had to consider the legal criteria for determining fitness to be tried and the availability of the defence of mental impairment. It was necessary to examine whether R's intellectual and hearing disabilities were significant enough to render them unfit to be tried and whether these disabilities affected their ability to understand the nature of the proceedings or to participate in their defence. The court also had to consider the impact of these disabilities on R's capacity to follow the court proceedings, to instruct legal representatives, or to give a reliable evidence. The central issue was whether R's disabilities met the threshold for unfitness to be tried under the relevant legislation.

In determining that R was unfit to be tried, the court found that R's significant intellectual and hearing disabilities were sufficient to meet the criteria for unfitness under the Act. The court accepted that R's disabilities severely impacted their ability to understand the nature of the proceedings and to participate in their defence. The court concluded that R was unable to follow the court proceedings, to instruct legal representatives, or to give a reliable evidence due to their disabilities. Consequently, the court found that the defence of mental impairment was available to R, and ordered that R be deemed unfit to be tried. As a result, the court dismissed the charge of attempted murder against R.

The court ordered that R be detained in a suitable facility until such time as it was determined that they were fit to be tried. The court also directed that a review of R's fitness to be tried be conducted within six months. The court emphasised the importance of ensuring that R's rights and needs were appropriately considered in any future proceedings, and that appropriate measures were in place to support R's participation in any future legal process. The court's decision highlighted the need for careful consideration of the impact of disability on an individual's capacity to participate in the criminal justice system, and the importance of ensuring that the legal process is accessible and fair for all individuals, regardless of their disabilities.

Orders