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District Court 7 November 2019

R v Jones

[2019] NSWDC 655

Sexual offencesPublic order & justice offences
CRIMINAL PROCEDURE TRIAL UNFITNESS TO BE TRIED ISSUE GENUINELY RAISED MENTAL HEALTH PRACTICE AND PROCEDURE PROCEDURAL FAIRNESS

Citation: R v Jones [2019] NSWDC 655
Court: District Court of New South Wales
Date: 7 November 2019
Judge(s): Haesler DC DCJ

Background

The accused (referred to as "Mr Jones") is a 73-year-old man charged on a 12-count indictment alleging indecent assaults on two of his daughters during the early 1980s. He was committed for trial in May 2019, and his trial was fixed as a Category A priority matter for 11 November 2019 at the Wollongong District Court. The charges relate to events alleged to have occurred approximately 36 to 39 years before the proceedings were brought.

Mr Jones has significant cognitive impairments stemming from a meningioma (a brain tumour affecting the membranes surrounding the brain) diagnosed in 1999. He underwent surgery and subsequently experienced short-term memory loss, personality change, and symptoms of frontal lobe impairment. His condition is compounded by cognitive effects from long-term opioid use for chronic back pain.

Two days before the scheduled trial, the defence solicitor applied to vacate the trial date, relying on a geriatrician's report raising concerns about the accused's capacity to comprehend complex and unfamiliar situations, including court proceedings. The Crown did not oppose the application. His Honour initially refused the adjournment but stood the matter over to allow fuller argument.

  • Whether the trial date should be vacated on the basis that a genuine question of the accused's fitness to be tried had been raised
  • Whether the court was obliged to conduct a fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 once the unfitness question was genuinely raised
  • What procedural fairness considerations applied to the adjournment application
  • What the relevant legal standard for fitness to be tried requires (the Presser criteria)

Decision

Haesler DCJ was initially reluctant to vacate the trial, noting the 36-year delay in bringing the matter to court, the priority listing, the special arrangements made for an acting judge, and the cost to the court's listing schedule. His Honour acknowledged those systemic pressures as relevant, though not determinative, considerations.

The court was ultimately persuaded that the question of unfitness had been genuinely raised. The geriatrician's report described a man who could manage routine and familiar environments but was likely to struggle significantly in the complex and unfamiliar setting of a courtroom. The defence solicitor's affidavit also detailed practical difficulties in obtaining instructions and noted that the accused had suffered a number of falls from confusion since arriving in Wollongong to prepare for trial.

An additional complication was that the accused's wife, who assists him with most aspects of daily life, was also a defence witness. That role would ordinarily prevent her from being present in court to support him during the trial itself. His Honour noted that resolving whether an alternative support person could be arranged would take time that was not available before the listed date.

His Honour emphasised that the statutory framework under the Mental Health (Forensic Provisions) Act 1990 requires the court, once a question of unfitness is raised before arraignment, to determine whether a fitness inquiry should be conducted. The risk of proceeding to arraignment when the accused might not in fact be fit was a miscarriage of justice that outweighed the costs of delay. The application was granted and the trial vacated.

Orders Made

  • The trial fixed for 11 November 2019 was vacated.
  • A fitness hearing was listed for 24 February 2020.
  • The matter was listed for mention and further directions on 11 February 2020 (the accused excused on that date).
  • Existing bail continued until further order under the Bail Act 2013.

Key Takeaways

  • Once an accused's unfitness to be tried is genuinely raised before arraignment, the Mental Health (Forensic Provisions) Act 1990 (ss 8 and 10) obliges the court to consider whether a fitness inquiry must be conducted before the trial proceeds.
  • A fitness inquiry under the Act is to be conducted in a non-adversarial manner, focusing on the criteria established in R v Presser [1958] VR 45, which require the accused to be able to understand the charge, follow proceedings in a general sense, understand the effect of evidence against them, and give instructions to their lawyers.
  • Proceeding to arraignment where a genuine question of fitness exists risks a miscarriage of justice, a factor that outweighed the court's systemic interests in maintaining its trial list.
  • The District Court confirmed that case management considerations and listing costs are relevant to an adjournment application but are not ends in themselves and cannot override the requirements of procedural fairness.
  • Cognitive conditions arising from organic brain injury combined with the practical difficulties of obtaining meaningful instructions from an accused may, together, constitute a sufficient basis for genuinely raising the fitness issue.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8, 10
- Crimes Act 1900 (NSW), s 61E(1) (as it then was), s 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Bail Act 2013 (NSW)

Cases:
- R v Presser [1958] VR 45 (the foundational Victorian decision establishing the criteria for fitness to be tried, applied consistently in NSW)