The Police v JH
[2020] ACTMC 25
•18 November 2020
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
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
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.
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 his confusion, he lived on his own, had no family support, had not seen a medical practitioner in years and was only at court that day due to the persistent efforts of a neighbour. I noted the option of a s 315(4) dismissal and suggested that any evidence available that day be heard and the prosecution to then be allowed to consider their position. Evidence was received from Ms Baker and another of the defendant’s neighbours, Mr Charge.
Ms Baker explained that during her examination of the defendant that morning he presented as tangential, that is being unable to answer questions and frequently referring to events that would have occurred decades ago. He had difficulty understanding why he was at court, his lawyer’s role, and the purpose and nature of the charges. She confirmed she had concerns about the defendant’s capacity to give instructions and understand the proceedings. She opined that the defendant’s difficulties could be due to a range of conditions, including dementia and his age.
Mr Charge explained that he had known the defendant for 40 years and that over the last three years he had been assisting the defendant with shopping, appointments and planning for the defendant’s funeral and burial. He would see the defendant on a regular basis, probably twice a week. Mr Charge described a rapid decline over the last 12 months in the defendant’s memory and coordination. There were issues with self-care. He also described the defendant’s confusion during conversations. He provided the example that he had discussed with the defendant about coming to court during the week and the day before. However, when he arrived to take the defendant to court that morning, the defendant did not register a memory about court.
At the next mention, the prosecution indicated that they did not consent to the s 315(4) disposition. I ordered a forensic mental health assessment addressing the fitness to plead considerations now provided at s 311 of the Act. Unfortunately, Forensic Mental Health Services later responded by indicating that the recent assessment of the defendant indicated that he may have an age-related cognitive impairment and he required a further assessment by a geriatrician. Further, they were unable to facilitate that assessment and without that assessment they were unable to complete a fitness to plead assessment.
The matter was mentioned again and both Legal Aid and the prosecution indicated they were both unable to fund or facilitate an assessment by a geriatrician. I adjourned the matter until 18 November 2020 for the purpose of hearing the application to dismiss the charge under s 315(4). On that date, the application proceeded, and no further evidence was put before the Court about the defendant’s mental impairment.
Legal Principles
There is a rebuttable presumption that a defendant is fit to plead: s 312. The question of fitness to plead may be raised by a party or by the Court: s 313. Other than at a committal hearing, the Court must reserve the question of fitness to plead for investigation, if satisfied that there is a real and substantial question about the defendant’s fitness to plead: s 314. Once the question is reserved, the Court must proceed with an investigation. The Court can make orders to facilitate that investigation, including an order requiring the defendant to be examined by a psychiatrist or other health practitioner: ss 315(2) and 315A(1). The Court can also call evidence on its own initiative: s 315A. The Court is to make any finding about fitness to plead on the balance of probabilities: s 312. While no party bears a burden of proof in relation to the question: s 312, the defendant remains presumed fit to plead unless that presumption is rebutted.
Subsection 315(4) of the Act provides a summary process to dismiss a charge in certain circumstances. The provision reads:
If the court considers that, because of the trivial nature of the charge or the nature of the defendant’s mental impairment, it would be inappropriate to inflict any punishment on the defendant in relation to the offence, the court may decide not to carry out or continue the investigation and may dismiss the charge and order that the person be released.
This provision provides the Court with a discretion to dismiss the charge if satisfied that it would be inappropriate to inflict any punishment on the defendant due to the trivial nature of the charge and or the defendant’s mental impairment. It would therefore be necessary for the Court to be satisfied that either the nature of the charge was trivial, or the defendant suffered from a mental impairment. The exercise also needs to be undertaken on the assumption that there would be a finding of guilt or a qualified finding following a special hearing.
The expressions ‘mental impairment’ and ‘mental illness’ are defined in the Criminal Code 2002, s 27, which reads:
Mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
Mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
Similar to the s 334 discretion, the exercise of the s 315(4) discretion could be viewed as the balancing of two competing public interests. In the case of this discretion, the first is the public interest in a defendant being prosecuted in the ordinary way with the associated benefits that follow from the employment of the criminal justice system. The second is the public interest in the expeditious finalisation of proceedings where ultimately it would be inappropriate to impose any punishment on the defendant, and where the continuation of the proceedings in the ordinary course may involve a cost disproportionate to that outcome.
That characterisation is consistent with the observations by Spigelman CJ in
Newman v R173 A Crim R 1; [2007] NSWCCA 103 in relation to the equivalent provision of the Mental Health (Criminal Procedure) Act 1990, s 10(4), where he observed:
36. Section 10(4) is expressly directed to the appropriateness of the infliction of punishment. A judgment that punishment would be “inappropriate” leads to the result that the inquiry called for would not occur and the charge will be dismissed. Significant weight is to be attached to this consequence. A person charged with crime will never be tried.
39. … The principal purpose of the subsection is to avoid the unnecessary delays, costs and complications of the special procedure, which arises only in the case where an issue of unfitness to plead has arisen …
40. The principal purpose of the fitness hearing is to facilitate the administration of criminal justice. The administration of criminal justice would not be enhanced in any manner, whether from the point of view of an accused or from that of a victim or from the point of view of the public interest, if the considerable added expense and delay of a fitness hearing is to be undertaken in circumstances where the court would, in the event, not inflict any punishment.
Of note, is that the discretion may be exercised before the investigation into the question of fitness to plead has been completed. Therefore, it need not necessarily be informed by the same quality of information that would be available to inform the question of fitness to plead.
Consideration
In this matter it is alleged that the damage to the car was in excess of $16,000. Therefore, the charge could not be said to be trivial in nature.
The unchallenged evidence before the Court is that the defendant is an elderly man suffering significant cognitive impairment. He is 87 years old and in the last 12 months has experienced significant deterioration in his memory. He was unable to adequately understand why he was at court, the role of his lawyer or the purpose and nature of the charge. At times, he is unable to engage in an orderly and effective conversation without deviating tangentially onto other more familiar subjects. In response to submissions by the prosecution, I note that there is no expert report per se or evidence from a geriatrician. However, I do not see the absence of such material as preventing appropriate findings being made based on the evidence otherwise before the Court.
The expression ‘mental impairment’ includes ‘senility’. ‘Senility’ is defined by the Macquarie Compact Dictionary (7th ed, 2017) to include ‘mentally … infirm due to old age’. In this matter, I am satisfied on the balance of probabilities, that the defendant’s impairment is related to his advanced age. I therefore find that he is suffering from senility and therefore a mental impairment.
I accept that ordinarily an offence of this type and scale should be prosecuted in the usual way. Doing so allows the application of the rule of law, with appropriate safeguards for defendants. It holds those convicted to account, acknowledges the harm and loss experienced by victims and acts as a deterrent to others who may later contemplate similar conduct. It allows those who have had the alleged conduct proven at a special hearing to be, in certain circumstances, detained in custody for the protection of the community.
However, in this case, that public interest is outweighed by the imbalance between the costs and delays of continuing the proceedings and the probable outcome. Should the proceedings continue it would be challenging to complete the investigation into the question of fitness to plead. There would be additionally delay. Following the necessary findings about fitness to plead, the criminal proceedings would continue, probably with a contested hearing of sorts. Experience suggests that due to the defendant’s impairment, the proceedings would involve additional court appearances, beyond what would ordinarily be expected. Ultimately and assuming the defendant was found guilty or found at a special hearing to have engaged in the conduct alleged, it is unlikely that he would receive any punishment or confinement. I form that assessment based on the circumstances of the offending, the defendant’s health and advanced age, the absence of any relevant criminal history, and because the defendant is unlikely to be receptive to specific deterrence and would not be an appropriate vehicle for general deterrence.
Order
In those circumstances I am satisfied that due to the defendant’s mental impairment it would be inappropriate to inflict any punishment on the defendant in relation to the offence for which he is charged and therefore the charge is dismissed.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston Associate: Neerja Thirunavukarasu Date: 19 November 2020 |