R v Robinson - [2019] NSWDC 661

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Robinson [2019] NSWDC 661
Hearing dates: 11 – 12 November 2019
Date of orders: 18 November 2019
Decision date: 18 November 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the offence charged.

Catchwords: MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing
CRIME — Sexual offences — Act of indecency — meaning of word ‘towards’
Legislation Cited: Crimes Act 1900.
Evidence Act
Mental Health (Forensic Provisions) Act 1990
Summary Offences Act 1988 (NSW)
Cases Cited: Eades v Director of Public Prosecutions (2010) 77 NSWLR 173; [2010] NSWCA 241
R v Barrass [2005] NSWCCA 131
R v Chonka [2000] NSWCCA 466
R v Francis (1989) 88 Cr App R 127
R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21
R v McIntosh (unreported CCA 26/9/1994)
Category: Principal judgment
Parties: Regina (Crown)
Tony William Robinson (Accused)
Representation:
Counsel:
P Kerr (Crown)
C Mendes (Accused)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid Commission NSW/ACT

File Number(s): 2017/00174837
Publication restriction: Names of complainants

Judgment

INTRODUCTION

On 3 May 2018 Walmsley SC DCJ found Tony William Robinson unfit to be tried on two charges of an act of indecency towards a child and referred the matter to the Mental Health Review Tribunal. On 19 February 2019 the Tribunal determined that Mr Robinson was unfit and on the balance of probabilities he would not become fit to be tried for the offence with which he has been charged within 12 months of the Court’s finding of unfitness.
On 5 April 2019 the DPP gave notice that pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (‘the Act’) that it intended to proceed with the charges against Mr Robinson.
Pursuant to s 19(1)(b) of the Act, as a result of that notice the Court “is to conduct a special hearing as soon as practicable unless the DPP advises that no further proceedings will be taken”.
A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be found proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged: s 19(2).

NATURE AND CONDUCT OF A SPECIAL HEARING

Mr Robinson appeared before me on Monday 11 November 2019. He was represented by Ms Mendes of counsel, an Australian legal practitioner. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings: s 21(1).
Mr Robinson was arraigned and pleaded not guilty with the assistance of his counsel. At a special hearing the accused person is to be taken to have pleaded not…

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 Robinson

Details

AGLC: R v Robinson [2019] NSWDC 661
Case: [2019] NSWDC 661
Decision Date: 18 November 2019

CaseChat Overview and Summary

In the case of R v Robinson, the accused faced charges of committing an act of indecency towards a child under the age of 16. The defendant was deemed unfit to be tried due to mental health issues, leading to a special hearing under the Mental Health (Forensic Provisions) Act 1990. The court was tasked with determining the appropriate disposition under the Act, specifically whether the defendant was not guilty by reason of unfitness to be tried.

The central legal issue before the court was the interpretation of the term 'towards' in the context of the offence of committing an act of indecency. The court had to decide whether the act of indecency needed to be directed towards the child or if the mere occurrence of the act in the presence of the child was sufficient to constitute the offence. This interpretation was crucial in assessing the defendant's fitness to be tried and the applicability of the Mental Health Act provisions.

The court concluded that the term 'towards' required the act of indecency to be directed at the child. Since the evidence did not establish that the act was directed towards the child, the court found that the defendant did not commit the offence as charged. Consequently, under section 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, the court declared the defendant not guilty of the offence due to unfitness to be tried. The defendant was ordered to be detained in a mental health facility, reflecting the court's decision regarding the defendant's fitness and the necessity for ongoing mental health care.

Orders

Orders of the court

Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the offence charged.

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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Medium Neutral Citation:	R v Robinson [2019] NSWDC 661
Hearing dates:	11 – 12 November 2019
Date of orders:	18 November 2019
Decision date:	18 November 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the offence charged.
Catchwords:	MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing CRIME — Sexual offences — Act of indecency — meaning of word ‘towards’
Legislation Cited:	Crimes Act 1900. Evidence Act Mental Health (Forensic Provisions) Act 1990 Summary Offences Act 1988 (NSW)
Cases Cited:	Eades v Director of Public Prosecutions (2010) 77 NSWLR 173; [2010] NSWCA 241 R v Barrass [2005] NSWCCA 131 R v Chonka [2000] NSWCCA 466 R v Francis (1989) 88 Cr App R 127 R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 R v McIntosh (unreported CCA 26/9/1994)
Category:	Principal judgment
Parties:	Regina (Crown) Tony William Robinson (Accused)
Representation:	Counsel: P Kerr (Crown) C Mendes (Accused) Solicitors: Solicitor for Public Prosecutions Legal Aid Commission NSW/ACT
File Number(s):	2017/00174837
Publication restriction:	Names of complainants