R v Vosota

District Court

New South Wales

Medium Neutral Citation:

R v Vosota [2021] NSWDC 621

Hearing dates:

28 October 2021

Date of orders:

28 October 2021

Decision date:

28 October 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

(1) I refer the accused person to the Mental Health Review Tribunal for a review: s 49(1)

(2) I remand the accused in custody: s 47(2)(d).

(3) The accused is to be transferred to a secure psychiatric facility for assessment and treatment: s 42(2)(e).

(4) The reports of Drs Furst and O’Dea are to be served on the Commission for Corrective Services and Justice Health.

(5) A copy of this judgment is to be forwarded to the Registrar of the Mental Health Review Tribunal, as well as the reports of Dr Furst and O’Dea.

Catchwords:

Criminal Law - accused committed for trial to determine the question of fitness - fitness hearing - not fit to be tried - mental health or cognitive impairment

Legislation Cited:

Crimes Act 1900

Cognitive Impairment Forensic Provisions Act 2020

Mental Health Forensic Provisions Act 1990

Cases Cited:

Kesavarajah v The Queen (1994) 181 CLR 230

R v Presser [1958] VR 45

Category:

Procedural rulings

Parties:

Regina (Crown)
Jiuta Vosota (Accused)

Representation:

Counsel:
Mr Kerr
Mr King

Solicitors:
Mr Thomas (DPP)
Ms Murray

File Number(s):

2020/00260430

Publication restriction:

Nil.

EX TEMPORE Judgment

INTRODUCTION

1. The accused has been charged with intentionally cause grievous bodily harm contrary to s 33 of the Crimes Act. The accused was committed for trial to determine the question of fitness.

2. The matter is to be dealt with pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which prescribes criminal procedures for the Supreme and District Court for persons affected by mental health and cognitive impairments. The Act replaced the Mental Health Forensic Provisions Act 1990, and commenced on 27 March 2021.

3. The Court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence as soon as practicable: s 42.

4. The inquiry procedures are set out in s 44 and include the following:

1. The determination is by judge alone: s 44(1).

2. The defendant is to be represented by an Australian legal practitioner unless ordered otherwise: s 44(2).

3. The inquiry is not to be conducted in an adversarial manner: s 44(3).

4. Onus of proof does not rest on any particular party: s 44(4).

5. The court is to consider modification of the trial process or assistance provided to facilitate understanding and effective participation in the trial, the length and complexity of the trial and representation of the defendant: s 44(5).

6. A determination by the judge must include the principles of law applied by the judge and the finding of fact upon which the judge relied: s 44(6).

5. Mr Vosota is represented by an Australian legal practitioner.

6. Section 36 creates an explicit statutory test for fitness based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181…