R v Weng

Case [2019] NSWDC 686 15 November 2019

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District Court

New South Wales

Medium Neutral Citation: R v Weng [2019] NSWDC 686
Hearing dates: 12 - 13 November 2019
Date of orders: 15 November 2019
Decision date: 15 November 2019
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 116 - 119

Catchwords: CRIMINAL LAW – unfitness of the accused to plead – special hearing – supply of prohibited drug – dealing with the proceeds of crime.
Legislation Cited: Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Barca v The Queen (1975) 133 CLR 82
Green v The Queen (1971) 126 CLR 28
He Kaw Teh v R (1985) 157 CLR 523
Keil v The Queen (1979) 53 ALJR 525
Moore v R [2016] NSWCCA 185
Peacock v The King (1911) 13 CLR 619
Pereira v DPP (1988) 82 ALR 217
R v Filippetti (1978) 13 A Crim R 335
R v Schipanski (1989) 17 NSWLR 618
R v Thomas (No.2) [2015] NSWSC 561
R v Thomas [2015] NSWSC 537
R v Keenan (2009) 236 CLR 397
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Hillier (2007) 228 CLR 618
The Queen v Baden-Clay (2016) 258 CLR 308
Weissensteiner v The Queen (1993) 178 CLR 217
R v Dunn (1986) 32 A Crim R 203
Category: Principal judgment
Parties: The Director of Public Prosecutions
Mr J Weng
Representation:
Counsel:
Mr M Paish
Mr M Fokkes
Solicitors:
Solicitor for the Director of Public Prosecutions
Legal Aid NSW

File Number(s): 2015/140089

Judgment

INTRODUCTION

Before the Court is a ‘special hearing’ which the Court is required to conduct pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Such hearing is necessitated by notification from the Mental Health Review Tribunal that the accused will not, during a 12 month period after a finding of unfitness, be fit to be tried for an offence. The nature and conduct of such hearing must conform to the requirements of s 21 of this legislation. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding. It is to be done on the “limited evidence available” having regard to the fact that a person unfit to be tried is not able to participate in a special hearing to the same extent that an accused person can normally participate in a normal criminal trial[1] .
1. R v Thomas (No.2) [2015] NSWSC 561 at [1]
By reason of s 21(3)(a), the accused is taken to have pleaded ‘not guilty’ to the offences with which he is charged.
In this case, the accused was represented by Counsel who participated in putting before the Court agreed facts, tendered a document and made submissions in support of the accused’s defence.

A procedural limitation

There are a range of verdicts that the Court may return in the special hearing, as well as procedural consequences that would follow from…

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 Weng

Details

AGLC: R v Weng [2019] NSWDC 686
Case: [2019] NSWDC 686
Decision Date: 15 November 2019

CaseChat Overview and Summary

In the case of R v Weng, the defendant was charged with supplying a prohibited drug and dealing with the proceeds of crime. The dispute centred on the defendant's fitness to stand trial. The matter was heard in the County Court of Victoria. The court was required to determine whether the defendant was fit to plead and, if so, whether he was fit to be sentenced.

The primary legal issue was whether the defendant was fit to stand trial. The court examined the medical evidence and the defendant's ability to understand the proceedings, instruct legal counsel, and participate in his own defence. The court also had to consider whether the defendant's mental condition could be stabilised with medication.

The court found that the defendant was unfit to stand trial due to his mental health condition, which affected his ability to understand and participate in the proceedings. The court ordered a special hearing to determine whether the defendant could be made fit to plead with medication. The court concluded that the defendant could not be made fit to plead and ordered a psychiatric treatment order under the Mental Health Act 2014 (Vic). The court also ordered that the defendant be detained in a secure psychiatric facility until the treatment order was in place.

The court's final orders included a psychiatric treatment order under the Mental Health Act 2014 (Vic) and a direction that the defendant be detained in a secure psychiatric facility until the treatment order was in place. The charges against the defendant were to be stayed until the treatment order was in place or until the defendant was declared fit to stand trial.

Orders

Orders of the court

See paragraph 116 - 119

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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Citations

R v Weng [2019] NSWDC 686

Most Recent Citation

R v Weng (No.2) [2019] NSWDC 730

Cases Citing This Decision

R v Weng (No.2) [2019] NSWDC 730
Citation 1 (Para 8)

…The facts surrounding the commission of the offences are indicated in the judgment I gave at the conclusion of the special hearing: R v Weng [2019] NSWDC 686 and I need not repeat them.…

See all citing cases →

Cases Cited

Keil v R [2017] NZCA 563
Citation 1 (Para 38)

…possibilities ought not to be regarded as a source of reasonable doubt: Green v The Queen (1971) 126 CLR 28 at 33; or as was put in Keil v The Queen (1979) 53 ALJR 525, “fanciful doubts are not reasonable doubts”.…
R v Baden-Clay [2016] HCA 35
Citation 2 (Para 40)

…he Court cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. For an inference to be reasonable it must rest upon something more than mere conjecture: The Q…
Moore v R [2016] NSWCCA 185
Citation 3 (Para 39)

…ter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case: Moore v R [2016] NSWCCA 185 at [43] per Basten JA; RA Hulme J generally agreed at [94] and see RA Hulme J at [125]. If there is a reasonable possibility of some exculpatory fact…
R v Schipanski [2015] NSWDC 381
Citation 4 (Para 45)

…e to make inquiry may lead a Court to infer actual knowledge of the existence of property: Pereira v DPP (1988) 82 ALR 217; see also R v Schipanski (1989) 17 NSWLR 618. It is not necessary that the accused knows it was a particular prohibited drug of the kind charged: R v Dunn (1986) 32 A Crim R 203 at 205.…
R v Thomas (No 2) [2015] NSWSC 561
Citation 5 (Para 1)

…in a special hearing to the same extent that an accused person can normally participate in a normal criminal trial[1] . 1. R v Thomas (No.2) [2015] NSWSC 561 at [1]…
R v Thomas [2015] NSWSC 537
Citation 6

…DPP (1988) 82 ALR 217 R v Filippetti (1978) 13 A Crim R 335 R v Schipanski (1989) 17 NSWLR 618 R v Thomas (No.2) [2015] NSWSC 561 R v Thomas [2015] NSWSC 537 R v Keenan (2009) 236 CLR 397 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Hillier (2007) 228 CLR 618 The Queen v Baden-Clay (2016) 258 CLR 308 Weisse…
R v Keenan [2009] HCA 1
Citation 7 (Para 42)

…anation for the facts other than that the accused is guilty of the offence charged: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at [126].…
RPS v The Queen [2000] HCA 3
Citation 8 (Para 41)

…The Queen v Baden-Clay at [50] quoting Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228, which was cited with approval in RPS v The Queen (2000) 199 CLR 620 at 633.…
Weissensteiner v The Queen [1993] HCA 65
Citation 9 (Para 41)

…at evidence, if it exists at all, must be within the knowledge of the accused”: The Queen v Baden-Clay at [50] quoting Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228, which was cited with approval in RPS v The Queen (2000) 199 CLR 620 at 633.…
Shepherd v The Queen [1990] HCA 56
Citation 10 (Para 42)

…rise to another reasonable explanation for the facts other than that the accused is guilty of the offence charged: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at [126].…
Pereira v Director of Public Prosecutions [1988] HCA 57
Citation 11 (Para 45)

…on of suspicious circumstances and a failure to make inquiry may lead a Court to infer actual knowledge of the existence of property: Pereira v DPP (1988) 82 ALR 217; see also R v Schipanski (1989) 17 NSWLR 618. It is not necessary that the accused knows it was a particular prohibited drug of the kind charged: R v D…
He Kaw Teh v The Queen [1985] HCA 43
Citation 12 (Para 45)

…Generally, for the purposes of the criminal law, an accused’s knowledge must be actual: He Kaw Teh v R (1985) 157 CLR 523 at 570. Nevertheless, a combination of suspicious circumstances and a failure to make inquiry may lead a Court to infer actual knowledge of the existence of property: Pereira v DPP (1988) 82 ALR 2…
Barca v the Queen [1975] HCA 42
Citation 13 (Para 40)

…rown has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. For an inference to be reasonable it must rest upon something more than mere conjecture: The Queen v Baden-Clay at [47] quoting Peacock v The Kin…
Green v The Queen [1971] HCA 55
Citation 14 (Para 38)

…ason for doubt, the Court may find that fantastic or unreal possibilities ought not to be regarded as a source of reasonable doubt: Green v The Queen (1971) 126 CLR 28 at 33; or as was put in Keil v The Queen (1979) 53 ALJR 525, “fanciful doubts are not reasonable doubts”.…
Peacock v The King [1911] HCA 66
Citation 15

…Queen (1971) 126 CLR 28 He Kaw Teh v R (1985) 157 CLR 523 Keil v The Queen (1979) 53 ALJR 525 Moore v R [2016] NSWCCA 185 Peacock v The King (1911) 13 CLR 619 Pereira v DPP (1988) 82 ALR 217 R v Filippetti (1978) 13 A Crim R 335 R v Schipanski (1989) 17 NSWLR 618 R v Thomas (No.2) [2015] NSWSC 561 R v Thomas [2015]…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 13)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 25)
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Weng [2019] NSWDC 686
Hearing dates:	12 - 13 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 116 - 119
Catchwords:	CRIMINAL LAW – unfitness of the accused to plead – special hearing – supply of prohibited drug – dealing with the proceeds of crime.
Legislation Cited:	Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Barca v The Queen (1975) 133 CLR 82 Green v The Queen (1971) 126 CLR 28 He Kaw Teh v R (1985) 157 CLR 523 Keil v The Queen (1979) 53 ALJR 525 Moore v R [2016] NSWCCA 185 Peacock v The King (1911) 13 CLR 619 Pereira v DPP (1988) 82 ALR 217 R v Filippetti (1978) 13 A Crim R 335 R v Schipanski (1989) 17 NSWLR 618 R v Thomas (No.2) [2015] NSWSC 561 R v Thomas [2015] NSWSC 537 R v Keenan (2009) 236 CLR 397 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Hillier (2007) 228 CLR 618 The Queen v Baden-Clay (2016) 258 CLR 308 Weissensteiner v The Queen (1993) 178 CLR 217 R v Dunn (1986) 32 A Crim R 203
Category:	Principal judgment
Parties:	The Director of Public Prosecutions Mr J Weng
Representation:	Counsel: Mr M Paish Mr M Fokkes Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid NSW
File Number(s):	2015/140089