R v Waszczuk - [2011] NSWSC 212

Supreme Court

New South Wales

Medium Neutral Citation: R v Waszczuk [2011] NSWSC 212
Hearing dates: 29 June 2010; 24 March 2011
Decision date: 24 March 2011
Before: R A Hulme J
Decision:
The offender is unfit to be tried

Catchwords: CRIMINAL LAW - procedure - fitness to plead or be tried - question raised during sentence proceedings - inquiry held - finding of unfitness
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Cases Cited: R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina
Martin Jan Waszczuk
Representation: Counsel:
Mr P Ingram SC (Crown)
Ms J Manuell SC (Offender)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s): 2009/74187

Judgment

HIS HONOUR: This matter commenced before me on 29 June 2010 when the offender adhered to a plea of guilty that he entered in the Local Court and confirmed on arraignment in this Court in respect of an offence of murder.

There is no need to go into the detail of the offence but briefly, it involves the killing of the offender's father in circumstances that might be viewed as being somewhat bizarre.

The matter proceeded before me on 29 June with the tendering of material in the Crown case and in the defence case. Oral submissions were then made by counsel for both parties.

I developed a concern on that occasion as to the difficulty of proceeding to sentence the offender in circumstances in which there was no material before me whatsoever as to the reasons for which he did what he did to his father. There were no medico-legal reports before me on that occasion, although there was a statement by Dr Kevin Vaughan. In that statement, the doctor recounted the offender's history of being diagnosed with mental illness and the admissions and treatments he had received.

The matter was stood over to enable a report to be obtained from Justice Health. In the intervening period, reports have been provided by Professor Greenberg of 24 September 2010 and 13 December 2010, and by Dr Bruce Westmore of 1 November 2010 and 17 March 2011.

An issue has been ventilated today as to the offender's fitness to be tried. There has also been ventilated a question as to whether the Court should continue to proceed upon an acceptance of the offender's plea of guilty. I will return briefly to the latter but will now address the former.

In the report of Professor Greenberg of 13 December 2010, he says (at p 4):

"Mr Waszczuk stated that he would be willing to discuss these reasons in full why he killed his father only with his solicitor under solicitor/client privilege. He stated the only reason why he would not discuss this with the writer was that he feared these reason/s maybe aggravating factor/s in his sentencing hearing. The writer therefore had some concerns about whether he was able to give his version of the facts and instruct his legal counsel.

Should Mr Waszczuk maintained his silence to his…

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 Waszczuk

Details

AGLC: R v Waszczuk [2011] NSWSC 212
Case: [2011] NSWSC 212
Decision Date: 24 March 2011

CaseChat Overview and Summary

The case of R v Waszczuk involved the defendant, Waszczuk, who was facing sentencing after being found guilty of an offence. During the sentencing proceedings, questions arose regarding Waszczuk's fitness to be tried and subsequently sentenced. The matter was brought before the court, which was required to determine whether Waszczuk was fit to be sentenced. The court had to decide whether an inquiry into his fitness should be held and, if so, what the outcome of that inquiry would be.

The legal issues central to this case revolved around the criteria for determining an individual's fitness to be tried and sentenced in criminal proceedings. The court needed to assess the statutory provisions and case law that govern the fitness to plead or be tried, as well as the process for conducting an inquiry into fitness. The court also had to consider the implications of a finding of unfitness on the proceedings and the rights of the defendant.

The court examined the statutory framework and relevant case law to determine the appropriate course of action. It concluded that an inquiry into Waszczuk's fitness to be tried was necessary and proceeded to hold such an inquiry. After considering the evidence and expert opinions presented during the inquiry, the court found that Waszczuk was unfit to be tried. Consequently, the court decided that it could not proceed with the sentencing of Waszczuk. The court held that the proceedings must be stayed until such a time as Waszczuk may be fit to be tried.

Orders