R v White, Kaelym Haamiora

District Court

New South Wales

Medium Neutral Citation:

R v White, Kaelym Haamiora [2020] NSWDC 418

Hearing dates:

1 July 2020

Date of orders:

1 July 2020

Decision date:

01 July 2020

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

(1)   I find that the accused, Kaelym Haamiora White, is unfit to be tried for the offence of aggravated robbery.

(2) Pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the accused to the Mental Health Review Tribunal.

(3)   I direct that that a copy of the reports of Dr Dayalan and Professor Greenberg in Exhibit A be provided to the Tribunal.

(4) In accordance with s 14(b) of the Mental Health (Forensic Provisions) Act 1990, the matter is adjourned for mention to Friday, 6 November 2020 at 9.30am before the list judge.

(5)   By consent, fresh bail granted to the accused on the existing conditions with the following changes:

(a)   To reside at [address deleted for publication].

(b)   To report to police at Blacktown Police Station instead of Penrith Police Station.

(c)   An acceptable person without security to agree to forfeit the sum of $100 instead of $500 in the event of the accused failing to appear.

(d)   Remove the self-surety condition.

(6)   In the event that bail is not entered, issue s 77 order for the accused to appear via AVL on the next occasion.

Catchwords:

MENTAL HEALTH — Criminal proceedings — Fitness to be tried

CRIME — Bail — Variation application

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990, s 14

Cases Cited:

Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41

R v Presser [1958] VR 45; [1958] ALR 248

Category:

Procedural and other rulings

Parties:

Regina
Kaelym Haamiora White (Accused)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/92412

Publication restriction:

None

Judgment

1. Kaelym Haamiora White is charged with one count of aggravated robbery before this Court. A question was raised at committal about Mr White’s fitness to plead and he appeared via audio visual link whilst in custody on this determination of his fitness to be tried.

2. The Mental Health (Forensic Provisions) Act 1990 provides in ss 6 to 15 that unfitness to be tried is to be determined on the balance of probabilities by judge alone, that the accused is ordinarily to be legally represented, that the proceedings are to be conducted not in an adversarial manner, and that there is no onus resting on either party. If Mr White is unfit to be tried, the Court must refer him to the Mental Health Tribunal.

3. Whether a person is fit to be tried depends on whether the person, because of a mental defect, fails to meet certain minimum standards to enable a trial to be conducted without unfairness or injustice. Those standards were set out in the case of R v Presser [1958] VR 45; [1958] ALR 248 by Smith J and affirmed by the…