R v Shane Whitney - [2011] ACTSC 105

R v SHANE WHITNEY
[2011] ACTSC 105 (23 June 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to stand trial or becoming unfit during trial – accused found unfit to plead.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to stand trial or becoming unfit during trial – whether expert must address each paragraph of s 311 of the Crimes Act 1900 (ACT) – not necessary – court must find unfitness by reference to statutory criteria.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to stand trial or becoming unfit during trial – disability of deciding whether accused can elect for trial by judge alone.

Crimes Act 1900 (ACT), ss 311, 312, 314, 315A, 316, 318, Div 13.2
Criminal Code 2002 (ACT), ss 44, 326, 332, 347
Court Procedures Rules 2006 (ACT), r 4731, 4733
Mental Health (Treatment and Care) Act 1994 (ACT), Div 4.4

Brookbanks W and Simpson S, Psychiatry and the Law (LexisNexis: Wellington NZ, 2007)

R v Dashwood [1943] KB 1
R v Presser [1958] VR 45
Kesavarajah v The Queen (1994) 181 CLR 230
R v Fisher (No 2) [2011] ACTSC 100
R v Monaghan [2009] ACTSC 61
R v Polanski [1999] NSWSC 433
R v Rivett (1950) 34 Cr App Rep 87
R v Pritchard (1836) 7 Car & P 303; 173 ER 135
Egan, Hawkins and Burr v JG [2010] ACTSC 53
R v P (1991) 105 FLR 12
R v House [1986] 2 Qd R 415

No. SCC 58 of 2010
No. SCC 148 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 23 June 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 58 of 2010
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 148 of 2010

R
v
SHANE WHITNEY

ORDER

Judge:  Refshauge J
Date:  23 June 2011
Place:  Canberra

THE COURT FINDS THAT:

Shane Whitney is unfit to plead.

Shane Whitney is unlikely to become fit to plead within twelve months.

AND THE COURT ORDERS THAT:

A special hearing under s 318 of the Crimes Act 1900 (ACT) be conducted.

The parties be heard as to whether Shane Whitney is capable of making an election to have the special hearing to be a trial by a single judge without a jury or whether ACAT should be directed to appoint a guardian with powers under s 316 of the Crimes Act 1900 (ACT).

In 1942, the UK Court of Appeal noted in R v Dashwood [1943] KB 1 (at 4) that:

It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself.

The treatment of those charged with offences who have a mental impairment has changed over the years, but in Australia reached a significant point when Smith J in R v Presser [1958] VR 45 (at 48) set out what his Honour considered were the minimum standards that a person’s capacity to understand and engage…

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 Shane Whitney

Details

AGLC: R v Shane Whitney [2011] ACTSC 105
Case: [2011] ACTSC 105
Decision Date: 23 June 2011

CaseChat Overview and Summary

In the case of R v Shane Whitney, the defendant was charged with multiple offences, including assault occasioning actual bodily harm and robbery. The dispute arose as to whether the defendant was fit to stand trial. The matter was heard in the Supreme Court of the Australian Capital Territory.

The central legal issue before the court was whether the defendant was fit to stand trial under section 311 of the Crimes Act 1900 (ACT). The court was also required to consider whether the expert evidence presented needed to address each specific paragraph of section 311. The court held that it was sufficient for the expert to provide an overall opinion on the defendant's fitness to stand trial, without needing to address each statutory criterion individually. Furthermore, the court needed to determine whether the defendant could elect for a trial by judge alone in light of his mental incapacity.

The court found that the statutory criteria for unfitness to stand trial were met, and the defendant was deemed unfit to stand trial. In reaching this conclusion, the court considered the expert evidence presented and found that the defendant's mental condition rendered him incapable of understanding the nature of the proceedings, communicating with his legal representative, or participating in his own defence. The court also held that the disability of the defendant meant that he could not elect for a trial by judge alone. The court's decision was based on the statutory criteria and the evidence provided, rather than requiring the expert to address each specific paragraph of section 311.

The final orders of the court were that Shane Whitney be deemed unfit to stand trial and that the charges against him be held over for one year. The court also directed that a review be conducted to determine whether any changes in the defendant's condition might allow for a future trial.

Orders