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Supreme Court 16 December 2013

R v Watt

[2013] NSWSC 1896

DrugsPublic order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE UNFIT TO STAND TRIAL FEDERAL OFFENCE PRIMA FACIE CASE MENTAL CONDITION

Citation: R v Watt [2013] NSWSC 1896
Court: Supreme Court of New South Wales
Date: 16 December 2013
Judge(s): Price J

Background

The accused faced two charges arising from an alleged international drug operation: conspiracy to import approximately 210 kilograms of pseudoephedrine into Australia from the Democratic Republic of Congo (a federal offence under the Criminal Code 1995 (Cth)), and aiding and abetting the supply of pseudoephedrine in a large commercial quantity under New South Wales law. The Crown alleged that the accused and a co-accused were the Australian principals of a broader Dutch-based drug syndicate operating between December 2005 and September 2007.

A question of fitness to stand trial arose after the accused suffered a severe assault by a fellow inmate while on remand in October 2009. The assault left him with a brain injury causing deficiencies in comprehension, cognitive fatigue, attention, and memory. Price J had previously determined the accused unfit to stand trial, and the Mental Health Review Tribunal subsequently confirmed that finding and concluded he was unlikely to become fit within 12 months.

This proceeding addressed the remaining steps required under Division 6 of the Crimes Act 1914 (Cth): whether a prima facie case existed against the accused on the conspiracy charge, and what should become of him given his mental condition.

  • Whether the accused remained unfit to stand trial, following the Mental Health Review Tribunal's assessment
  • Whether a prima facie case had been established against the accused on the conspiracy charge (Count 1) under s 20B(3) of the Crimes Act 1914 (Cth)
  • What orders should be made regarding the accused's custody, hospitalisation, or release, given his mental condition and the availability of treatment

Decision

Fitness: The Crown conceded that the finding of unfitness was concluded. Price J confirmed the accused remained unfit to stand trial, consistent with both his earlier determination and the Tribunal's assessment.

Prima facie case: The court applied the test in s 20B(6) of the Crimes Act 1914 (Cth), which requires evidence capable of proving each element of the offence beyond reasonable doubt, considered at its highest in favour of the Crown. Price J reviewed an extensive Crown case summary, which included evidence of financial transfers linking the accused to Dutch syndicate members, intercepted communications, and coded references to the accused by syndicate members. The court was satisfied that a prima facie case had been established on Count 1 (the conspiracy charge). The Crown withdrew Count 3 (the state aiding and abetting charge), and leave was granted for that withdrawal.

Disposition: Price J was satisfied under s 20BC(1) of the Crimes Act 1914 (Cth) that the accused was suffering from a mental condition for which treatment was available in hospital. However, the accused objected to hospitalisation. Both the Crown and the accused's legal representative supported conditional release under ss 20BC(5) and (6) to allow the accused to continue treatment at the Royal Rehabilitation Centre Sydney's Brain Injury Outpatient Clinic. The court ordered the accused released from custody on conditions for a period of up to three years.

Orders Made

  • Leave granted to the Crown to withdraw Count 3 (aiding and abetting supply under the Drug Misuse and Trafficking Act 1985)
  • The accused released from bail conditions
  • The accused released from custody for a period not exceeding 3 years (16 December 2013 to 15 December 2016) on the following conditions:
  • Contact the Royal Rehabilitation Centre Sydney within 28 days to obtain an appointment with Dr Browne or another suitably qualified practitioner
  • Attend the Centre for recommended treatment and follow all reasonable directions as to treatment and attendance
  • Provide the Centre with current residential and contact details, and notify of any changes
  • Authorise the Centre to release attendance and compliance information to the Australian Federal Police if requested
  • The Commonwealth Director of Public Prosecutions to notify the Centre of conditions 1 to 4 within 7 days
  • Be of good behaviour for the period of conditional release

Key Takeaways

  • Division 6 of the Crimes Act 1914 (Cth) establishes a three-stage process for federal offences where fitness to stand trial is in question: first, determine fitness; second, determine whether a prima facie case exists; third, determine what is to be done with the accused (custody, hospitalisation, or conditional release).
  • A prima facie case under s 20B(6) of the Crimes Act 1914 (Cth) is established where there is evidence capable of proving each element of the offence beyond reasonable doubt, assessed at its highest in favour of the Crown. This process does not involve assessing witness credibility or determining guilt or innocence.
  • Where an accused is found to have a mental condition for which hospital treatment is available but objects to hospitalisation, conditional release under ss 20BC(5) and (6) of the Crimes Act 1914 (Cth) is available as an alternative disposition.
  • Sufficient evidence existed in a circumstantial Crown case, including financial transactions and intercepted communications, to satisfy the prima facie case threshold for a conspiracy to import a border controlled precursor.
  • The three-stage federal fitness framework described in R (Cth) v Sharrouf (No 2) [2008] NSWSC 1450 was applied, confirming that proceeding under Division 6 does not constitute a trial and raises no question of guilt or innocence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), Division 6, ss 20B(3), 20B(3)(b), 20B(6), 20B(7), 20BA(1), 20BA(2), 20BA(4), 20BC(1), 20BC(3), 20BC(5), 20BC(6)
- Criminal Code 1995 (Cth), ss 11.5(1), 11.5(2)(b), 11.5(2)(c), 307.11(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 27
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 14, s 14(b)(iii)

Cases:
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
- Ngatayi v The Queen (1980) 147 CLR 1
- R (Cth) v Sharrouf (No 2) [2008] NSWSC 1450
- R v Presser [1958] VR 45
- R v Watt [2012] NSWSC 1574