The Queen v KG - [2020] NTSC 24

CITATION:The Queen v KG [2020] NTSC 24
PARTIES:THE QUEEN
v

KG

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NOs:21909042 & 21831070
DELIVERED ON:  18 May 2020
HEARING DATES:  25 November 2019, 31 January, 6 March, 23 April and 15 May 2020
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL PROCEDURE – Fitness inquiry – Procedure following fitness inquiry – Special hearing – Procedure following declaration of liability to supervision
Accused unfit to stand trial – Found to have committed nine offences at special hearing – Declared liable to supervision – Custodial supervision order made – Particular considerations arising from the youth of the offender, intellectual disability and functional impairment, the manner in which the special hearing was conducted, and the nature of the offence – Notional term of two years and 10 months fixed
Criminal Code 1983 (NT) Pt IIA
REPRESENTATION:
Counsel:
Crown: M Nathan SC
Supervised Person:   M Aust
CEO (Health):   E Farquhar
Solicitors:
Crown:Office of the Director of Public Prosecutions
Supervised Person:  North Australian Aboriginal Justice Agency
CEO (Health):   Solicitor for the Northern Territory
Judgment category classification:    C
Judgment ID Number:  GRA2004
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v KG [2020] NTSC 24
Nos 21909042 & 21831070
BETWEEN:

THE QUEEN

AND:

KG

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered ex tempore on 18 May 2020)
[1]The youth in this case was charged with nine counts by indictment dated 5 September 2019. Those offences were alleged to have occurred in Darwin on 20 July 2018. They included, in general terms, indecent assault, aggravated assault and sexual intercourse without consent.
[2]In the earlier stages of this matter the question arose as to whether the accused was fit to stand trial. The psychiatric evaluation was that the accused did not understand the concept of pleading either guilty or not guilty to the charges and that he would be unlikely to follow the course of the court proceedings. On the basis of that evaluation, the prosecution and the defence agreed that the accused was unfit to stand trial, and in accordance with that agreement I recorded findings that he was unfit to stand trial and that it was unlikely that he would become fit to stand trial within the next 12 months.
[3]A special hearing was then conducted before a jury to determine, in respect of each offence charged, whether the accused was not guilty, whether the accused was not guilty because of mental impairment, or whether the accused committed the offence. That special hearing was held on 25 November 2019 and the jury determined that the accused had committed each of the offences. That hearing proceeded entirely on the basis of agreed facts.
[4]The accused was 14 years of age at the time of the offending. He is now 16 years of age. He suffers from a significant intellectual disability and severe functional impairment secondary to Foetal Alcohol Spectrum Disorder. He…

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 The Queen v KG

Details

AGLC: The Queen v Kg [2020] NTSC 24
Case: [2020] NTSC 24
Decision Date: 18 May 2020

CaseChat Overview and Summary

In this case, KG, a youth who was 14 years old at the time of the offending, was charged with nine counts of assault and sexual intercourse without consent. The Court found that KG was unfit to stand trial due to his significant intellectual disability and severe functional impairment. A special hearing was conducted to determine whether KG committed the offences, and the jury found him guilty of all charges. Given KG's unfitness to stand trial, a custodial supervision order was necessary to ensure the safety of the community. The Court fixed a notional term of two years and 10 months for the offences, taking into consideration KG's age, personal circumstances, and the atypical nature of the offending.

KG is to remain under the care and treatment of Territory Families and his National Disability Insurance Scheme support providers while subject to the custodial supervision order. He is required to cooperate fully with the treatment plan formulated by the treating team, including complying with reasonable directions, participating in assessments and counselling, and attending any rehabilitation or treatment programs as needed. The Superintendent of the Don Dale Youth Detention facility may authorize supervised release for periods as determined in consultation with the treating team to implement a transition plan for KG's eventual release from custodial supervision. The matter is listed for major review on 14 December 2020, and the accused is excused from attending if legally represented. The parties have liberty to apply.

Orders