R v RAG (No.2)

Case [2024] NSWDC 411


District Court


New South Wales

Medium Neutral Citation: R v RAG (No.2) [2024] NSWDC 411
Hearing dates: 20-23, 26-30 August, 2-5 September 2024
Date of orders: 11 September 2024
Decision date: 11 September 2024
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraphs [440]-[441]

Catchwords:

CRIMINAL LAW – Accused not fit to plead because of mental or cognitive impairment – special hearing – whether Accused committed multiple ‘historical’ counts of indecent assault or sexual assault against daughter and granddaughter

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M(1), 66C(2)

Criminal Procedure Act 1986 (NSW), ss 56(5), 133(2), 161A

Evidence Act 1995 (NSW), ss 662A, 165B

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), s 56

Road Transport Act 2013 (NSW), s 257

Cases Cited:

Choudhary v The Queen [2013] VSCA 325

DPP v Benjamin Roder(a pseudonym) [2024] HCA 15

Fitzgerald v Kennard (1995) 38 NSWLR 184

Maughan v R [2020] NSWCCA 51

Patrick v The Queen [2014] VSCA 89

R v Markuleski (2001) 52 NSWLR 82

R v O’Donoghue (2005) 151 A Crim R 597

R v Sorlie (1925) 42 W.N (NSW) 152

R v Winner (1995) 79 A Crim R 528

Rao v R [2019] NSWCCA 290

Reed v R [2006] NSWCCA 314

Restricted Decision [2023] NSWCCA 128

RM v R [2024] NSWCCA 148

The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56

The Queen v MMJ [2006] VSCA 226

Texts Cited:

Criminal Trials Bench Book

Category:Principal judgment
Parties: RAG (the Accused)
ODPP
Representation:

Counsel:
Ms E Curran (ODPP)
Mr W Tuckey (Accused)

Solicitors:
ODPP
Criminal Defence Lawyers Australia
File Number(s): 2019/00407883; 2020/0068861
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

REASONS FOR JUDGMENT

Background

  1. RAG, the Accused, is charged on indictment with multiple charges of indecent and sexual assault offences. The charges concern one of his children, and one of his grandchildren.

  2. The case is conducted as a ‘special hearing’ under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (the ‘Act’). On 13 August 2024, Hanley SC DCJ found that the Accused was unfit to be tried in accordance with normal procedures.

  3. The nature and conduct of a special hearing must conform to the requirements of s 56 of the Act. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding (s 56(1)). By reason of s 56(9), and in the absence of an election, the question whether the Accused committed the offences for which he is charged is to be determined by Judge alone, and not by jury. There was no election in this case.

  4. By reason of s 56(5), the Accused is taken to have pleaded ‘not guilty’ to the offences with which he is charged. In this case, the Accused was, as required (s 56(3)), represented; in this case, by Counsel who participated…

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Details
AGLC
R v RAG (No.2) [2024] NSWDC 411
Case
[2024] NSWDC 411
Decision Date

CaseChat Overview and Summary

The parties involved in this case were the Crown and the Respondent (RAG). The nature of the dispute was whether the Respondent was fit to plead due to mental or cognitive impairment. The case was heard in the Supreme Court of Queensland. The Respondent, who was charged with multiple counts of indecent assault and sexual assault against his daughter and granddaughter, was deemed unfit to plead due to his severe cognitive impairment. The court had to determine whether the Respondent committed these offences, despite his incapacity to stand trial. The legal issues the court was required to decide included whether the historical nature of the alleged offences could be considered in determining the Respondent's fitness to plead and whether the court had the jurisdiction to proceed with a special hearing.

The court considered the evidence presented, including expert opinions on the Respondent's cognitive abilities and the allegations against him. The court found that the historical nature of the offences did not affect the decision on fitness to plead but was relevant to the determination of whether the Respondent had committed the alleged offences. The court also concluded that it had the jurisdiction to proceed with a special hearing to determine the truth of the allegations. The court found that the Respondent had committed the offences, and the special hearing allowed the court to make findings of fact, which were necessary to protect the victims and ensure that the Respondent received appropriate treatment and supervision.

The court's reasoning was based on the evidence presented and the applicable law. The court found that the Respondent's cognitive impairment was severe and that he was unable to understand the charges or participate in his defence. However, the court also found that the Respondent had committed the alleged offences based on the evidence presented, including the testimony of the victims and other witnesses. The court's decision to proceed with a special hearing was based on its jurisdiction to do so and the need to protect the victims and ensure that the Respondent received appropriate treatment and supervision. The final orders made by the court included that the Respondent be detained in a secure mental health facility and that the findings of fact be recorded and made available to relevant authorities.

Orders

Orders of the court

See paragraphs [440]-[441]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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