Citation: R v MG [2016] NSWDC 374
Court: District Court of NSW
Date: 2 December 2016
Judge(s): Colefax SC DCJ
Background
The accused was a child enrolled in a learning support stream at a NSW high school. The complainant was also a child in that same stream and had a diagnosed cognitive impairment. The charge concerned alleged sexual intercourse on 18 February 2014, brought as an aggravated offence by reason of the complainant's cognitive impairment.
The matter proceeded as a Special Hearing under s 21(3) of the Mental Health (Forensic Provisions) Act, a process used where an accused person is unfit to stand trial but the court must determine whether, on the evidence, the accused committed the offence. The accused himself had an intellectual impairment.
Legal Issues
- Whether, on the evidence before the Special Hearing, the accused committed the charged offence
- Whether admissions obtained by the school principal from the accused child were properly obtained and admissible
- Whether the bail process was conducted appropriately given the accused's and his father's significant language and literacy limitations
Decision
Outcome of the Special Hearing:
The court conducted the Special Hearing on 8 August 2016 and, on 12 September 2016, found the accused not guilty on the grounds of mental illness. The court's published reasons address two procedural matters that arose in the course of the proceedings and that Colefax SC DCJ considered warranted public attention.
Concern 1: The Department of Education's interrogation protocol:
After the incident was reported to the school principal, the principal interviewed the accused child without a parent present and without giving the child any opportunity to obtain legal advice, despite the fact that the matter was likely to involve police. The accused was a child with an intellectual impairment. The principal then provided the admissions obtained in that interview to police, who conducted a further interview in which the accused's father was present but had very limited English. Additional admissions were extracted at that stage. The court noted that, had an objection been raised to the admission of this evidence, it would very likely have been excluded. The more fundamental concern, however, was that a departmental protocol appeared to permit the interrogation of children with learning difficulties by school staff, with the results then made available to police.
Concern 2: Bail conditions and the risk of breach:
The court also expressed concern about how bail was administered. Neither the accused child nor his father could read English, and neither understood the bail slip or its conditions, including a reporting condition. The accused was subsequently found to have breached that condition, was arrested, and experienced suicidal ideation as a result. The court described this outcome as one that should never have occurred.
The court acknowledged it had no further power to remedy these matters, but recorded its concerns formally and publicly in the hope that responsible authorities would respond.
Orders Made
- Accused found not guilty on the grounds of mental illness
Key Takeaways
- The District Court found the accused not guilty on the grounds of mental illness following a Special Hearing under s 21(3) of the Mental Health (Forensic Provisions) Act.
- A departmental protocol permitting school principals to interrogate children, including children with intellectual impairments, without a parent or legal representative present, and to provide the results to police, was identified by the court as deeply concerning.
- Admissions obtained through such a process would very likely have been excluded had an objection been taken, but the court regarded the existence of the protocol itself as the more significant problem.
- Serving bail documentation on a child and parent who are effectively illiterate in English, without ensuring they understood the conditions, led to a breach, arrest, and suicidal ideation in this case, which the court expressly stated should never have occurred.
- Where a court has no remedial power beyond recording its concerns, it may nonetheless publish its observations in the hope that appropriate authorities will address identified systemic failures.
Legislation and Cases Referenced
Legislation
- Section 21 (3) of the Mental Health (Forensic Provisions) Act.
Cases
- Not stated