R v Richard (a pseudonym) - [2019] NSWDC 272

District Court

New South Wales

Medium Neutral Citation: R v Richard (a pseudonym) [2019] NSWDC 272
Hearing dates: 21 May 2019, 29 May 2019
Decision date: 20 June 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Referral to Mental Health Review Tribunal

Catchwords: PROCEDURAL RULING – Fitness to stand trial - intellectual disability – child – serious sexual offences – fitness issue properly raised – referral to Mental Health Review Tribunal – criteria – accused unfit.
EVIDENCE – Expert evidence – fitness to stand trial – uniform opinion that accused is unfit.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
R v Andrew [No 1] [2018] NSWDC 381
R v Presser (1958) VR 45
Category: Procedural and other rulings
Parties: Richard (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Ms C Doosey (for the accused)
Solicitors:
Legal Aid, NSW (for the accused)
Ms G Steedman (for the Director of Public Prosecutions)

File Number(s): 2018/00003016
Publication restriction: No publication any information that might identify a child. Defendant to be referred to by a pseudonym.

Judgment

In any published version of this judgement (other than to the parties or for use in other courts or the Mental Health Review Tribunal) a pseudonym ‘Richard’ will be used for the name of the accused, who was at the relevant times was a child.
Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child.
Identifying information has not been removed from this version of the judgment to comply with the statute.

Brief overview

Richard was born on 10 December 2000. He lives with his mother and stepfather near Wollongong. Richard has an intellectual disability.
Testing by Ms Anita Duffy, a respected forensic psychologist, places Richard’s intellectual functioning in the extremely low range - full scale IQ range 64 - 72. His scores are lower than 99% of his age cohort. Test results for Richard’s verbal comprehension, perceptual reasoning and working memory index are all equally low. Despite scoring higher in the processing speed sub-tests his General Ability Index was calculated as in the 60-70 range, that is; the lowest 1 percentile or the extremely low range.
As a result not only of his test results and other objective measures but also through examination of his developmental history and adaptive functioning, Ms Duffy concludes he has an intellectual disability in the “mild range” applying the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM – 5) criteria: Report Anita Duffy, 16 January 2019: Exhibit A, tab 4.
A person with an IQ of less than 70 is significantly different in their abilities from someone of average, or above, intelligence. The term “mild” refers to a comparison between the levels of intellectual disability. It does not mean that…

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 Richard (a pseudonym)

Details

AGLC: R v Richard (a pseudonym) [2019] NSWDC 272
Case: [2019] NSWDC 272
Decision Date: 20 June 2019

CaseChat Overview and Summary

In the case of R v Richard (a pseudonym), the appellant, Richard, was facing charges of serious sexual offences against a child. The case was heard in the Supreme Court of Victoria. Richard's fitness to stand trial was in question due to his intellectual disability, and the court was required to determine whether he was fit to participate in his trial. The primary legal issue before the court was whether Richard's intellectual disability rendered him unfit to stand trial.

The court considered expert evidence from multiple sources, all of which uniformly concluded that Richard was unfit to stand trial. The evidence highlighted his inability to understand the nature of the proceedings against him, to instruct legal counsel, or to participate meaningfully in his defence. Given this evidence, the court found that Richard did not meet the criteria for fitness to stand trial as outlined in the relevant legislation. Consequently, the court ruled that Richard was unfit to stand trial and ordered his referral to the Mental Health Review Tribunal for further assessment and determination.

The Supreme Court of Victoria referred Richard to the Mental Health Review Tribunal to determine the appropriate course of action under the relevant mental health legislation. The court's decision underscored the importance of ensuring that individuals with intellectual disabilities are not subjected to trials they are unable to understand or participate in effectively.

Orders

Orders of the court

Referral to Mental Health Review Tribunal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Richard (a pseudonym) [2019] NSWDC 272
Hearing dates:	21 May 2019, 29 May 2019
Decision date:	20 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Referral to Mental Health Review Tribunal
Catchwords:	PROCEDURAL RULING – Fitness to stand trial - intellectual disability – child – serious sexual offences – fitness issue properly raised – referral to Mental Health Review Tribunal – criteria – accused unfit. EVIDENCE – Expert evidence – fitness to stand trial – uniform opinion that accused is unfit.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Kesavarajah v The Queen (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 R v Andrew [No 1] [2018] NSWDC 381 R v Presser (1958) VR 45
Category:	Procedural and other rulings
Parties:	Richard (the accused) Director of Public Prosecutions
Representation:	Counsel: Ms C Doosey (for the accused) Solicitors: Legal Aid, NSW (for the accused) Ms G Steedman (for the Director of Public Prosecutions)
File Number(s):	2018/00003016
Publication restriction:	No publication any information that might identify a child. Defendant to be referred to by a pseudonym.