Stuckey v POLICE

[2007] SASC 154

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

STUCKEY v POLICE

[2007] SASC 154

Judgment of The Honourable Justice Vanstone (ex tempore)

1 May 2007

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - OTHER ORDERS

Investigation in Magistrates Court as to fitness to stand trial - finding that defendant fit to stand trial - whether finding justified on the evidence.  Held:  appeal allowed.  Matter remitted for re-hearing.

Criminal Law Consolidation Act 1935 s 269NA(2), s 269NB(a), referred to.

STUCKEY v POLICE
[2007] SASC 154

Magistrates Appeal

1. VANSTONE J (ex tempore):          The appellant faces a number of charges in the Magistrates Court.  On 12 October 2006 a magistrate conducted an investigation as to his mental fitness to stand trial and found that he was not satisfied that the defendant was unfit.  He ruled that the defendant would be required to plead to the charges and remanded the matter for trial, limited to the question of the defendant’s mental competence to commit the offences.

2. Mr Stuckey appeals against the determination that he was mentally fit to stand trial. 

3. The charges faced by the appellant were contained within two complaints and an information and included damaging property, threatening harm, assault and gross indecency.  The offences took place between August and October 2005.

4. The procedure to be followed when a question is raised as to a defendant’s mental unfitness to stand trial is set out in Division 3 of Part 8A of the Criminal Law Consolidation Act1935. Although I have no transcript of the proceedings before the magistrate, it appears from affidavit material before me that counsel then acting for Mr Stuckey raised such a question at the outset of the hearing and indicated that the objective elements of each of the offences on both complaints and on the information were admitted. It appears that the magistrate then found the objective elements to be established, as contemplated by s 269NA(2) of the Act.

5. It then fell to the magistrate, pursuant to s 269NB(a) to hear relevant evidence and representations on the question of mental fitness. The material put to the magistrate at that point consisted of three psychiatric reports which had been prepared in relation to separate charges which had been dealt with in the District Court some months earlier. Those reports appear to have been a report of Dr Jha dated 14 July 2006, a report of Dr Tomasic dated 21 July 2006 and a report of Dr Raeside dated 24 July 2006.

6. It is clear that the magistrate was told that earlier in 2006, Judge Boylan had conducted two inquiries of the same nature concerning the appellant in relation to two sets of different charges.  On 13 September 2006 the judge had published reasons regarding his decisions, given on 2 June and 4 July 2006, that the defendant was mentally unfit to stand trial on both groups of charges and explaining his disposition of the matters.  It is likely that the magistrate had a copy of those reasons.

7. In his ex tempore reasons for decision, the magistrate referred to Judge Boylan’s earlier conclusion, but observed that that was based on medical reports compiled much earlier, namely, in August 2005 and January 2006. The magistrate was not provided with those reports. The reports which he saw were apparently prepared for the District Court to assist in the decision as to what orders should be made consequent upon the two findings that the appellant was liable to supervision under Part 8A.

8. Insofar as they considered the question, the reports which were provided to the magistrate did not speak with one voice as to the defendant’s fitness to stand trial. The writers acknowledged that there had been an improvement in his condition, apparently after a change of medication, but Dr Craig Raeside, who was probably the most experienced in furnishing opinions relating to part 8A, indicated that, notwithstanding such improvement, he still considered the appellant unfit to stand trial. Dr Tomasic did not address that question in her report, nor did Dr Jha in explicit terms. I note that in any event there was some disagreement between Dr Jha and Dr Tomasic as to the appellant’s current state and as to the prognosis.

9. I agree with the magistrate that the two findings of Judge Boylan made in relation to separate charges and on the basis of earlier opinions did not in any way bind him. However, I consider that the state of the material before the magistrate was unsatisfactory, particularly bearing in mind that he was engaged in “an investigation” under Division 3 of Part 8A and was entitled, on his own initiative, to require the defendant to undergo examination. I consider that the magistrate should have, at the least, ordered up-to-date reports directing the attention of the writers to the particular charges before the court and allowing opportunity for the writers to see the appellant again in a clinical situation. It was unsatisfactory to treat the reports tendered to him, two of which really did not directly address the question at issue, as having failed to discharge the onus of proof on the appellant.

10. It may be that counsel then acting for the appellant had more extensive material which could have been presented to the magistrate.  Whether or not that is so is not to the point.  There was a real question as to the appellant’s fitness to stand trial on these charges, and the matter needed to be determined on the basis of adequate material.  That remains the case. 

11. Accordingly, I propose to set aside the magistrate’s finding and remit the matter for rehearing.

12. It may be that it will be convenient, when seeking up-to-date reports, from one or more of the experts to direct that they also examine the question of mental competence as part of the same exercise. However, that will be a matter for the magistrate to determine after consideration of Division 2 of Part 8A, and any submissions on that point.

13. The orders of the court are:

    1.extend time within which to appeal to 5 February 2007;

    2.allow the appeal;

    3.set aside the finding of the magistrate that the appellant is not mentally unfit to stand trial;

    4.remit the matter to the Magistrates Court for rehearing, the court to be constituted by a different magistrate.

    5.     the appellant to have his costs of the appeal fixed at $150.