R v Woof

[2024] NSWDC 484

District Court

New South Wales

Medium Neutral Citation:

R v Woof [2024] NSWDC 484

Hearing dates:

14-15 October 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph [129]

Catchwords:

CRIMINAL LAW – accused not fit to be tried – special hearing – cultivating prohibited plants in an amount not less than the large commercial quantity to that plant

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), ss 3(a1), 23(2)(a), 28, 43

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), ss, 4, 28, 29, 33(2), 34, 54, 56

Criminal Procedure Act 1986 (NSW), s 133(2)

Cases Cited:

R v Busby [2018] NSWCCA 136

R v CWW (1993) 32 NSWLR 348

Texts Cited:

Nil

Category:

Principal judgment

Parties:

ODPP
Mr Matthew Woof (the Accused)

Representation:

Counsel:
Ms M Knowles (ODPP)
Mr Matthew Woof (Self-represented)

Solicitors:
ODPP

File Number(s):

2021/00300706

Publication restriction:

Nil

Reasons for JUDGMENT

Background

1. Mr Matthew Woof, the Accused, is charged on indictment with the charge of cultivating a large number of prohibited plants, namely, 1,564 cannabis plants, an amount which is not less than the large commercial quantity applicable to that prohibited plant, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the DMT Act’).

2. The alleged offence was said to have been committed on 11 October 2021 at Northmead.

3. The case is conducted as a ‘special hearing’ under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (‘the Act’). On 26 June 2023, Buscombe DCJ found that the Accused was not fit but may become fit within 12 months and referred the matter to the Mental Health Review Tribunal. On 22 May 2024 the Tribunal found that Mr Woof remained unfit and would not become fit to be tried within 12 months of Buscombe DCJ’s finding made on 26 June 2023.

4. The nature and conduct of a special hearing must conform to the requirements of s 56 of the Act. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding (s 56(1)). By reason of s 56(9), and in the absence of an election, the question whether the Accused committed the offences for which he is charged is to be determined by Judge alone, and not by jury.

5. By reason of s 56(5), the Accused is taken to have pleaded ‘not guilty’ to the offences with which he is charged.

6. In this hearing, the Accused represented himself. This is unique for special hearings, where the default position is that an accused must be represented (s 56(3)) but the Accused had represented himself in the lead up to the hearing, and the Crown was neutral on the matter. It was in those circumstances that the Court made an order under s 56(3) enabling him to represent himself.

Elements and Interpretation of the Offence

7. As will be elaborated later…