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District Court 23 August 2011

R v D J Little

[2011] NSWDC 252

Assault & violenceTheft & property

Citation: R v D J Little [2011] NSWDC 252
Court: District Court of New South Wales
Date: 23 August 2011
Judge: Judge Norrish QC

Background

The accused faced two serious charges on an indictment dated 30 July 2010: aggravated break and enter with wounding (s 112(3) Crimes Act 1900) and robbery with violence and wounding (s 96 Crimes Act 1900), both arising from an incident in January 2009 at Wagga Wagga. On 4 August 2010, Judge English found the accused unfit to be tried on those charges, relying on psychiatric and psychological evidence that his neurological disorder impaired his rational understanding, comprehension, and ability to follow proceedings.

Following that finding, the Mental Health Review Tribunal determined in November 2010 that the accused was unlikely to become fit to be tried within twelve months. The Director of Public Prosecutions then directed that a special hearing proceed under s 21 of the Mental Health (Forensic Provisions) Act 1990.

The matter came before Judge Norrish at a special hearing listing. The accused's counsel applied for the Court to accept guilty pleas on one or both charges, rather than proceed with the special hearing. The accused had been bail refused on the current charges since December 2009, and his non-parole period on an earlier related conviction was approaching expiry.

  • Whether a court can accept a guilty plea from an accused who has previously been found unfit to be tried, without first setting aside that unfitness finding.
  • Whether there is a meaningful legal distinction between unfitness to plead and unfitness to be tried, and whether that distinction could allow a guilty plea to proceed.
  • Whether the District Court had power, in the circumstances, to revisit the unfitness finding, override the DPP's direction for a special hearing, or vacate the special hearing listing.

Decision

Judge Norrish acknowledged the conceptual distinction between unfitness to plead and unfitness to be tried. The Presser criteria (approved by the High Court in Kesavarajah v R) address various aspects of the trial process, and a person could theoretically be unfit to be tried while still retaining some capacity to plead. The accused's counsel sought to rely on this distinction, pointing to Dr Allnutt's more cautious view that the accused was only "marginally unfit", and to provisions in Part 2 of the Mental Health (Forensic Provisions) Act 1990 (particularly ss 7 and 8) as a possible basis for the Court to revisit the matter.

His Honour also noted the somewhat anomalous factual backdrop: on the very day Judge English found the accused unfit to be tried on the current charges, she had accepted his guilty plea on an unrelated robbery in company offence and sentenced him. Crucially, Judge English had not been informed at the time of the unfitness determination that the accused wished to plead guilty on the charges now before the Court. His Honour observed that had the Court known this, the unfitness inquiry might not have proceeded in the same way.

Despite these observations, Judge Norrish concluded that the District Court lacked the power to set aside Judge English's unfitness finding, override the DPP's direction for a special hearing, or redirect the Tribunal's conclusions. Because the formal statutory machinery under the Mental Health (Forensic Provisions) Act 1990 remained in place and had not been unwound through the proper processes, the application to accept a guilty plea could not be granted. His Honour nonetheless expressed strong concern about the accused being held indefinitely in a state of legal abeyance, particularly given that his neurological condition was unlikely to improve, and adjourned the special hearing to allow the Tribunal to reconsider the matter.

Orders Made

• The application is refused
• The special hearing is adjourned pending a further determination by the Tribunal

Key Takeaways

  • The District Court held that it lacked power to accept a guilty plea from an accused who had been formally found unfit to be tried, where the unfitness finding and the DPP's direction for a special hearing remained on foot under the Mental Health (Forensic Provisions) Act 1990.
  • A conceptual distinction exists between unfitness to plead and unfitness to be tried, as the Presser criteria address multiple discrete aspects of trial participation. An accused may be unfit to be tried while potentially retaining some capacity to understand and enter a plea, though this distinction did not assist the accused on the facts.
  • The procedural sequence under the Mental Health (Forensic Provisions) Act 1990 (fitness inquiry, Tribunal review, DPP direction, special hearing) creates a statutory framework that a court cannot simply bypass, even where practical justice considerations weigh heavily in favour of a different outcome.
  • Judge Norrish flagged a significant gap in the regime: where a court is not informed at the time of an unfitness inquiry that an accused wishes to plead guilty, the inquiry may proceed on an incomplete basis, with potentially unjust consequences for an accused who lacks the capacity to remedy the situation independently.
  • Refusing the application but adjourning the special hearing, the Court indicated that the Tribunal retained the capacity to reconsider fitness, and expressed the view that leaving an accused in indefinite legal abeyance because of a permanent disability would be contrary to the purpose of the legislative scheme.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 7, 8, 14, 19, 21, 47
- Crimes Act 1900 (NSW), ss 96, 112(3)

Cases
- Kesavarajah v R [1994] HCA 41
- R v Coles [2008] NSWSC 672
- R v Presser [1958] VR 45 (referenced through the "Presser criteria" discussion)