R v Smith

Case [2008] NSWDC 23
CITATION: R v Mark Joseph SMITH [2008] NSWDC 23
HEARING DATE(S): 6 March 2008
 
JUDGMENT DATE: 
12 March 2008
JURISDICTION: Criminal
JUDGMENT OF: Norrish QC DCJ
DECISION: The accused is fit to be tried.
CATCHWORDS: CRIMINAL LAW - Fitness to be tried - Presser test - Amnesia
LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990
CASES CITED: R v Presser [1958] VR 45
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
Eastman v The Queen (2000) 203 CLR 1
R v Clarkson [2007] NSWCCA 70
R v Rivkin (2004) 59 NWLR 284
R v Drummond (unreported) NSWCCA 27/05/1994
R v Dennison (unreported) NSWCCA 03/03/1998
PARTIES: Regina v Mark Joseph Smith
FILE NUMBER(S): 07/11/0466
COUNSEL: W Robinson QC (Crown)
R Hood (Offender)

JUDGMENT

Introduction

1 Mark Joseph Smith (“the accused”) is to be arraigned by the Director of Public Prosecutions in relation to three allegations of false swearing before the Police Integrity Commission. The offences were committed on 30 May and 8 August 2003.

2 On or about 28 June 2007 an indictment was filed with this Court containing the three counts upon which the prosecution proposes to proceed against the accused. Before arraignment an issue has arisen as to the fitness of the accused to be tried. This Court has determined that an inquiry should be conducted before the hearing of the proceedings in respect of the offences pursuant to s 8 Mental Health (Criminal Procedure) Act 1990 (‘the Act’).

3 That inquiry was conducted on Thursday 6 March 2008 pursuant to s.10 of the Act. The question of the accused’s fitness to be tried for an offence is to be determined by a judge sitting alone and any determination of this Court must include the principles of law applied by the judge and the findings of fact on which the judge relied (s.11). In determining this matter the Court has not been asked to consider s.10(4) of the Act. The inquiry was conducted in accordance with the requirements of s.12 of the Act.

Principles to be Applied

4 In R v Presser [1958] VR 45 Justice Smith (at 48), by reference to the relevant Victorian provision then in force said that the question to be determined as to whether a person was fit to plead (or now ‘to be tried’) was:


      “Whether the accused because of a mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. …. he needs … to understand what he is charged with. He needs to be able to plead to the charge and exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general…

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AGLC
R v Smith [2008] NSWDC 23
Case
[2008] NSWDC 23
Decision Date

CaseChat Overview and Summary

In the case of R v Smith, the appellant was charged with murder. The central issue in this appeal was whether the accused was fit to be tried, specifically focusing on the appellant's fitness to instruct counsel and understand the proceedings. The Court of Appeal was tasked with determining if the appellant's amnesia and other cognitive impairments were such that they rendered him unfit to be tried according to the criteria established in the case of Presser. The appellant had undergone a series of medical assessments which indicated significant memory loss and other cognitive deficits, raising the question of whether these impairments disqualified him from standing trial.

The court considered the established legal principles concerning fitness to be tried, particularly focusing on the ability of the accused to understand the nature of the proceedings against them and to instruct counsel effectively. The appellant's medical evidence was thoroughly reviewed, and expert opinions were considered to ascertain the extent of his cognitive impairments. The court also examined the appellant's ability to recall events and communicate with his legal representatives. Ultimately, the court determined that despite the appellant's significant memory loss and cognitive impairments, he retained the capacity to understand the proceedings and to instruct counsel, meeting the criteria for fitness to be tried as outlined in Presser.

After a detailed analysis of the evidence and legal principles, the Court of Appeal concluded that the appellant was fit to be tried. The court found that although the appellant had severe memory issues, he could still comprehend the nature of the charges and communicate effectively with his legal team. This decision was based on the appellant's demonstrated ability to recall and discuss specific events with his counsel, which was deemed sufficient to meet the legal standard for fitness to be tried. The court's decision was therefore in favour of the Crown, allowing the trial to proceed.

ORDERS:
The accused is fit to be tried. The appeal is dismissed.

Orders

Orders of the court

The accused is fit to be tried.

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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