Regina (C'Wealth) v Sharrouf [No 2] - [2008] NSWSC 1450

CITATION: Regina (C'Wealth) v Sharrouf [No 2] [2008] NSWSC 1450

HEARING DATE(S): 9/05/08; 29/05/08; 19/06/08

JUDGMENT DATE :
25 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: 1. I find that the accused is unfit to be tried. 2. I am satisfied that the accused will become fit to be tried withion 12 months from today's date. 3. I am satisfied that the accused is suffering from a mental condition for which reatment is available in a Prison Hospital. 4. I order that the accused be taken to and detained in the MRRC Screening Unit from today, or as soon as he is transferred to the Unit can be reasonably achieved, and that he be kept there for a period ending when he becomes fit to be tried

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Fitness for trial - Proper interpretation of the Mental Health (Criminal Procedure) Act 1990 (NSW) _ Proper construction for s 20B of the Crimes Acy 1914 (Cth) - Meaning of Prima Facie case - Correct test to be applied - Whether paper evidence can be tendered - Whether Court required to weigh up competing or alternative inferences arising from a circumstantial case

LEGISLATION CITED: Commonwealth Criminal Code Act 1995
Criminal Procedure Act 1986
Crimes Act 1914 Cth
Evidence Act
Judiciary Act (Cth) 1903
Mental Health (Criminal Procedure Act 1990 (NSW)

CASES CITED: Baladjam & Ors v R [2008] NSWCCA 85
Doney v R (1990) 171 CLR 207; 96 ALR 539
Eastman v The Queen [2000] 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
May v O'Sullivan (1955) 92 CLR 654: (1955) ALR 671
Ngataya v The Queen (1980) 147 CLR 108
Zanetti v Hill (1962) 108 CLR 433; (1963) ALR 165
R v Baladjam & Ors 7 March 2008
R v Baladjam & Ors [No 13] 1 May 2008
R v JMR (1991) 57 A Crim R 39
R v Svonaric [2001] 54 NSWLR 1
R v Presser (1958) ALR 248
Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1
Wentworth v Rogers (1984) 2 NSWLR 422: (1984) 15 A Crim R 376 at 429, 440

PARTIES: Regina (C'Wealth) v Khaled SHARROUF [No 2]

FILE NUMBER(S): SC 2007/2396001

COUNSEL:
G. Bellew SC; C. Donnell; Ms S McNaughton - Crown
P Singleton - Dept of Corrective Services (By Leave)
W Brewer; M Pickin - Accused Sharrouf

SOLICITORS: Commonwealth DPP
State Crown Solicitors
Matouk Joyner Lawyers - Accused Sharrouf

-1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: WEDNESDAY 25 June 2008

2007/2396001 - Regina v Khaled SHARROUF [No 2]

JUDGMENT - Unfitness for Trial – consequences of finding – s 20B of the Crimes Act (Cth) 1914

1 HIS HONOUR: Khaled Sharrouf, (“the accused”), is one of nine men who have each been charged upon a single indictment to do acts in preparation for a terrorist act or acts.

2 The…

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.

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Details

Case: [2008] NSWSC 1450
Decision Date: 25 June 2008

CaseChat Overview and Summary

In Regina (C'Wealth) v Sharrouf [No 2], the appellant was charged with various terrorism offences under the Criminal Code Act 1995 (Cth) and faced trial in the Supreme Court of New South Wales. The central issue was whether the appellant was fit to stand trial, given concerns about his mental health. The case revolved around the interpretation and application of the Mental Health (Criminal Procedure) Act 1990 (NSW) and s 20B of the Crimes Act 1914 (Cth), specifically the criteria and tests used to determine fitness for trial.

The court had to address several legal questions, including the proper construction of the statutory framework governing fitness for trial, the meaning of a prima facie case, and whether the court should weigh up competing or alternative inferences arising from a circumstantial case when determining fitness. Additionally, the court needed to decide whether paper evidence could be tendered and if it was appropriate to rely on such evidence in assessing the appellant's fitness to stand trial.

The court held that the statutory framework for determining fitness for trial required a rigorous assessment of the appellant's mental state at the time of the alleged offences. The court emphasised the importance of an objective test based on the appellant's ability to understand the proceedings, communicate with his legal representatives, and participate in his defence. The court clarified that the term "prima facie" in this context meant that the evidence needed to establish fitness must be clear and convincing. The court also ruled that it was not required to weigh up competing or alternative inferences in a circumstantial case when determining fitness for trial. Instead, the court should focus on the objective evidence of the appellant's mental state.

Ultimately, the court found that the appellant was unfit to stand trial due to a severe mental disorder that significantly impaired his ability to participate in his defence. The trial was subsequently stayed pending the appellant's recovery. The court's decision provided clarity on the legal standards and procedures for determining fitness for trial, ensuring that the rights of the accused were protected while also safeguarding the integrity of the criminal justice system.

Orders