The Police v JH

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Police v JH

Citation:

[2020] ACTMC 25

Hearing Date(s):

18 November 2020

DecisionDate:

18 November 2020

Before:

Magistrate Theakston

Decision:

The damage property charge CC 2019/9696 is dismissed.

Catchwords:

CRIMINAL LAW – Fitness to plead - Application to dismiss the charge under s 315(4) of the Crimes Act 1900 - Whether it would be appropriate to inflict any punishment on the defendant because of the trivial nature of the charge or the nature of the defendant’s mental impairment – age-related cognitive impairment

Legislation Cited:

Crimes Act 1900 ss 311, 312, 313, 314, 315(2), 315(4), 315A, 315A(1), 334

Criminal Code 2002 s 27

Mental Health (Criminal Procedure) Act 1990, s 10(4)

Cases Cited:

Newman v R (2007) 173 A Crim R 1; [2007] NSWCCA 103

Texts Cited:

Macquarie Compact Dictionary (7th ed, 2017)

Parties:

The Police (Crown)

JH (Defendant)

Representation:

Counsel

K Stitt (Crown)

S Zahnleiter (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Number(s):

CC 9696 of 2019

MAGISTRATE THEAKSTON:

Introduction

1. The defendant is an 87 year old man who was charged with damaging his neighbour’s competition rally car one evening, by striking the car several times with a hammer.  On 18 November 2020 I dismissed the charge, pursuant to the Crimes Act 1900, s 315(4), due to the nature of the defendant’s mental impairment and the inappropriateness of inflicting any punishment. These are my reasons.

Background

1. The history of this matter is of some significance.  The offence is said to have occurred in May 2019.  The defendant was served with a summons in September and then failed to appear in October and November 2019.  He was arrested on a warrant later in November 2019 and released without needing to enter bail.  He then failed to appear in January and February and was again arrested later in February 2020.  At his appearance in February the bench sheet records the defendant as appearing confused.  There were three more appearances, some without the defendant, before the matter first came before me at a pre-hearing mention in July.  The question of consent to jurisdiction had not been reached and no committal hearing had commenced or been listed.  At that time Ms Zahnleiter, who appeared for the defendant, expressed concerns about the defendant’s fitness to plead. She informed the court that she could not take appropriate instructions and she was concerned about his capacity to participate in the proceedings.  The matter was stood down and the defendant was seen by Ms Baker, a clinical psychologist working in the Mental Health Court Liaison Assessment Service.  Ms Baker echoed Ms Zahnleiter’s concerns.  On that basis I found there was a real and substantial question about the defendant’s fitness to plead and reserved the question of fitness to plead for investigation.

1. Ms Zahnleiter then expressed concerns about whether the defendant would be able to participate in the investigation process due to his infirmity. She explained that in addition to…