R v Rush, Shayne

[2009] NSWDC 325

CITATION:	R v Rush, Shayne [2009] NSWDC 325
EX TEMPORE JUDGMENT DATE:	30 November 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Accused unfit to be tried. Matter is referred to Mental Health Tribunal. Proceedings djourned pending the outcome of the review. Accused remanded into custody until determination of the Tribunal.
CATCHWORDS:	Criminal Law - unfitness to be tried - unfitness raised by defence counsel against wishes of accused - fitness hearing conductedc- principles to be applied - absence of expert psychiatric evidence - bizzare conduct by accused towards defence team - apparent incapacity to instruct counsel - refusal to submit to psychiatric examination - absence of power to order psychiatric examination - only explanation held to be unidentified mental condition.
CASES CITED:	R v Presser [1958] VR 45 at p48 R v Tigger unreported [2001] NSW CCA 53 R v Mailes (2001) 53 NSW LR 251 R v Dennison, unreported, NSW CCA 3 March 1988.
PARTIES:	Regina Shayne Rush
FILE NUMBER(S):	2009/70788
COUNSEL:	Accused: J O'Sullivan
SOLICITORS:	Crown: Mr Stewart

JUDGMENT
1. On 27 August 2009 the accused appeared before his Honour Judge Sorby. He was arraigned on an indictment containing seven counts and pleaded not guilty to each count. At that time his Honour stood the matter over for trial to commence on Monday 23 November with an estimate of three to four days. On 23 November 2009 I was allocated the matter for trial. The indictment contains seven charges, three of them aggravated indecent assault, three of them aggravated sexual assault and one of them incite an act of indecency.

2. When the matter came on for hearing Mr O’Sullivan of counsel who appears for the accused raised the question of fitness in the sense that he expressed concern that his client may not be fit to be tried. It became abundantly clear during the discussion (if I can just describe it that way) that then followed, that the accused was not a party to making any application for an inquiry as to his fitness.

3. But bearing in mind Mr O’Sullivan’s role as an officer of the court, his duties to the court and other matters that were raised at that time, I indicated that I would like the accused to be assessed by properly trained forensic psychiatrists for the purpose of determining whether he would be fit for trial or not. It was also made clear to me at that point in time that the accused was unwilling to be so assessed.

4. Concerned that the court may be putting someone on trial who may not have reached the appropriate minimum standards of mental health or awareness of issues, I invited Mr O’Sullivan and his instructing solicitor, Mr Quinn, to consider whether they thought it was appropriate for an affidavit to be put on- without breaching any instructions, or at least getting some advice as to whether ethically they could reveal such matters as had passed between them and the accused on the question…