Regina v Rafal Polanski - [2005] NSWSC 310

CITATION:
Regina v Rafal Polanski [2005] NSWSC 310

HEARING DATE(S): 11/4/05

JUDGMENT DATE :

11 April 2005

JUDGMENT OF:
Bell J at 1

DECISION:
1. The accused is found unfit to be tried for the offence of murder or any statutory alternative to it; 2. The accused referred to the Mental Health Review Tribunal pursuant to the provisions of s 14(a) of the Mental Health (Criminal Procedure) Act 1990; 3. The accused is to be returned to his present custody and to remain in custody until further order of the court or until his release by operation of law.

LEGISLATION CITED:
Mental Health (Criminal Procedure) Act 1990

CASES CITED:
Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser (1958) VR 45

PARTIES:
Regina
Rafal Polanski (Accused)

FILE NUMBER(S):
SC 70017/98

COUNSEL:
P. Power SC (Crown)
C Craigie SC (Accused)

SOLICITORS:
S Kavanagh
SE O'Connor (Accused)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

Monday 11 April 2005

70017/98 Regina v Rafal Polanski
JUDGMENT

1 BELL J: The accused, Rafal Polanski, was charged on 14 November 1997 with the murder of Josef Zimmer. The offence is alleged to have occurred on 19 October 1997.

2 On 21 October 2004 the Attorney-General determined, pursuant to s 29 of the Mental Health (Criminal Procedure) Act 1990, that a further inquiry be held to determine the fitness to be tried of Rafal Polanski in respect of the offence. Section 29 sub-s (4) of the Act provides that ss 11 (subs (3) excepted) and 12 apply to and in respect of a further inquiry under subs (2) in the same way as those sections apply to and in respect of an inquiry.

3 Provision is made in s 11A of the Act for the question of a person’s fitness to be tried for an offence to be determined by a judge alone if the person so elects and the judge is satisfied that the person sought and received advice in relation to the election from a barrister or solicitor before making it. An election may only be made with the consent of the Prosecutor.

4 By instrument dated 4 February 2005 the accused elected to have the fitness hearing determined by a judge alone. He stated that before making the election he had sought and received advice in relation to the election from Sashi Shukla, his solicitor. The Prosecutor signified his consent to the fitness hearing proceeding by judge alone by signing the accused’s election on 4 April 2005.

5 Senior counsel appearing for the accused and senior counsel appearing on behalf of the Crown were agreed that the provisions of s 11A of the Act admit of the question of fitness being determined by judge alone in respect of an inquiry directed pursuant to s 29 of the Act.

6 Before commencing to hold an inquiry as a judge alone into the accused’s fitness to be tried it is necessary for me to be satisfied…

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 Regina v Rafal Polanski

Details

AGLC: Regina v Rafal Polanski [2005] NSWSC 310
Case: [2005] NSWSC 310
Decision Date: 11 April 2005

CaseChat Overview and Summary

Rafal Polanski, the accused, was charged with the murder of Josef Zimmer, which allegedly occurred on 19 October 1997. The court had to determine whether Polanski was fit to be tried for this offence. The legal issues centred around the interpretation of the Mental Health (Criminal Procedure) Act 1990, particularly sections 11, 12, and 14, and the implications of the accused's mental health on his capacity to participate in a trial.

The court found that the accused had elected to have the fitness hearing determined by a judge alone, with the consent of the Prosecutor. The judge was satisfied that the accused had understood the advice provided by his solicitor, Sashi Shukla, regarding this election. The court then proceeded to conduct the inquiry into the accused’s fitness to be tried, considering the psychiatric reports and testimonies provided by Dr. Rosalie Wilcox and Professor Greenberg. Both experts concluded that Polanski suffered from chronic paranoid schizophrenia and was currently unfit to be tried due to his impaired concentration and difficulty in understanding the effect of the evidence against him.

The court concluded that the accused did not meet the minimum standards required to participate in a trial, as outlined in previous cases such as R v Presser and Kesavarajah v The Queen. Given the unanimous medical opinion, the court found Rafal Polanski unfit to be tried for the offence of murder. The court referred him to the Mental Health Review Tribunal and ordered him to be returned to his present custody until further order of the court.

Orders