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Local Court 19 May 2011

R v KF

[2011] NSWLC 14

Sexual offences
CRIMINAL LAW WHETHER DEFENDANT FIT TO BE TRIED PRESSER TEST

Citation: R v KF [2011] NSWLC 14
Court: NSW Local Court
Date: 19 May 2011
Judge(s): Magistrate Heilpern

Background

The defendant, an elderly man born in 1931 with no prior criminal history, was charged with aggravated indecent assault alleged to have occurred during a visit with his severely disabled granddaughter. A disability support worker witnessed the alleged incident and reported it promptly to police.

The defendant's legal representative applied for a permanent stay of proceedings on the basis that the defendant, suffering from dementia and adjustment disorder with depressed mood, was unfit to be tried. The prosecution did not oppose the Local Court's power to grant such a stay but contested that the threshold had been met.

Magistrate Heilpern noted this was the second such application he had dealt with in a matter of months and published reasons to assist other magistrates facing similar applications.

  • Whether the correct terminology is "fitness to plead" or "fitness to be tried," and whether any distinction matters
  • Whether the Local Court has power to permanently stay proceedings in an indictable matter dealt with summarily
  • What onus and standard of proof applies to a permanent stay application
  • What the Presser test requires for fitness to be tried, and whether the defendant met that standard
  • Whether the outcome, if the application succeeded, would be a permanent stay or a discharge

Decision

Magistrate Heilpern first clarified that "fitness to be tried" is the correct term, with "fitness to plead" being merely one element of the broader concept. Part 2 of the Mental Health (Forensic Provisions) Act 1990, which governs unfitness proceedings, applies only to the District and Supreme Courts, leaving a legislative gap in the Local Court. However, the Magistrate held that where the DPP has not elected to have the matter dealt with on indictment, the Local Court possesses the necessary implied power to permanently stay proceedings.

On the standard of proof, the applicant bears the onus of demonstrating unfitness on the balance of probabilities. The Magistrate emphasised that a permanent stay is an extraordinary remedy, available only where there is a fundamental defect going to the root of the trial that no judicial management can cure. The threshold is high.

Applying the Presser test, the Magistrate found that the defendant's cognitive difficulties, while genuine and concerning, did not reach that threshold. The test must be applied in a "common sense fashion," and a defendant need not have the capacity to mount a strong defence or act wisely in their own interests. Allowances such as additional hearing time, more frequent breaks, and careful cross-examination were identified as adequate adjustments for a defendant with fading memory.

The Magistrate also noted a procedural concern: the application had been sprung on the court and prosecution on a scheduled hearing date, with witnesses present and ready. The judgment observed that such applications ought to be flagged at the time the matter is set down for hearing, with a timetable set for service of reports and responses.

Orders Made

  • The application for a permanent stay was dismissed.
  • An urgent hearing date was to be allocated.

Key Takeaways

  • The Local Court holds an implied power to permanently stay summary proceedings in indictable matters dealt with summarily where the DPP has not elected, even absent specific legislative guidance on fitness to be tried in that jurisdiction.
  • A permanent stay is an extraordinary remedy requiring the applicant to establish, on the balance of probabilities, a fundamental defect going to the root of the trial that no judicial management can remedy.
  • The Presser test for fitness to be tried must be applied in a "common sense fashion": defendants need not be capable of mounting an able defence, only of meeting a basic minimum standard of participation and understanding.
  • Cognitive decline and memory difficulties associated with dementia do not automatically render a defendant unfit to be tried; practical adjustments at trial may sufficiently accommodate such limitations.
  • Where the application succeeds, the weight of authority suggests the appropriate outcome in the Local Court is discharge of the defendant rather than a formal stay, though the Magistrate noted some uncertainty about the precise mechanism.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), particularly s 4 and Part 2

Cases:
- R v Presser [1958] VR 45
- Jago v District Court of NSW (1989) 168 CLR 23
- Grassby v The Queen (1989) 168 CLR 1
- Connelly v DPP [1964] AC 1254
- Ngatayi v R (1980) 147 CLR 1
- Mantell v Molyneux [2006] NSWSC 955
- R v Basha (1989) 39 A Crim R 337
- Watson v Attorney-General (NSW) (1987) 8 NSWLR 685
- R v Littler [2001] NSWCCA 173
- Police v AR (Children's Law News, 18 November 2009)