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District Court 23 November 2022

R (Commonwealth) v Fielder

[2022] NSWDC 689

Sexual offencesPublic order & justice offences
CRIME POSSESS/CONTROL CHILD ABUSE MATERIAL USE CARRIAGE SERVICE FITNESS TO BE TRIED MENTAL HEALTH CRIMINAL PROCEEDINGS

Citation: R (Commonwealth) v Fielder [2022] NSWDC 689
Court: District Court of New South Wales
Date: 23 November 2022
Judge: Haesler SC DCJ

Background

A man with an intellectual disability faced three serious charges under the Commonwealth Criminal Code Act 1995, each carrying a maximum penalty of 15 years imprisonment. Two charges related to possession or control of child abuse material found on his mobile phone, and a third related to a sexually explicit SMS conversation referencing young children. The material was discovered during a search warrant executed in November 2021.

The question of the defendant's fitness to enter pleas was raised in good faith before the Local Court, which referred the matter to the District Court under section 20B(1) of the Crimes Act 1914 (Cth). The proceedings were conducted on the papers, with both the prosecution and defence in agreement as to the appropriate outcome.

Two forensic psychiatrists, Dr Nielssen and Dr Ellis, and a provisional psychologist each assessed the defendant. All experts confirmed that the defendant had a cognitive impairment arising from an intellectual disability within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act).

Legal Issues

  • Whether the defendant was presently unfit to be tried under the MHCIFP Act and the Crimes Act 1914 (Cth)
  • Whether a prima facie case had been established for each of the three charges
  • Whether the charges should be dismissed having regard to the considerations in section 20BA(2) of the Crimes Act 1914 (Cth)
  • Whether the defendant would become fit to be tried within 12 months
  • Whether detention in a hospital was appropriate, or whether conditional release was the proper outcome

Decision

Issue 1: Fitness to be tried

The court applied the five-stage Commonwealth fitness regime set out in the Crimes Act 1914 (Cth), picking up the fitness criteria in section 36 of the MHCIFP Act as the applicable State law under sections 68 and 79 of the Judiciary Act 1903 (Cth). The court found that the defendant was aware he was in some form of trouble with police but was unable to explain the charges or understand that he had committed an offence (at [31]). He would be unable to understand the substantial effects of evidence given against him at trial, was unable to provide reliable instructions to his lawyers, and lacked the capacity to decide on a defence (at [32]). The court found the defendant unfit to be tried (at [37]).

Issue 2: Prima facie case

Having found the defendant unfit, the court was required to assess whether a prima facie case had been established for each charge. Examining the evidence at its highest, including material retrieved from the defendant's phone during the search warrant, the court was satisfied that a prima facie case existed for all three charges (at [41]).

Issue 3: Whether charges should be dismissed

The court declined to dismiss the charges under section 20BA(2) of the Crimes Act 1914 (Cth). The court found that the child abuse material was deliberately accessed and involved images and videos of considerable seriousness (at [43]). Critically, the court found that the defendant, despite his intellectual disability, remained amenable to direction and instruction, and that specific deterrence therefore retained utility. Restrictions placed on him would carry the character of a meaningful response rather than an empty exercise (at [44]-[45]).

Issue 4: Future fitness and disposal

Both psychiatrists agreed, and the court accepted, that the defendant would not become fit to be tried within 12 months given the permanent and stable nature of his intellectual disability (at [46]). The court then considered whether hospital detention was warranted under section 20BC of the Crimes Act 1914 (Cth). On the expert evidence, the defendant's intellectual disability was not a condition amenable to hospital treatment, and his existing NDIS-based treatment plan was considered optimal (at [47]). The court found that detention would not advance his treatment needs and was not necessary for community protection at that stage (at [49]). Conditional release for a maximum period of three years was ordered instead (at [50]).

Orders Made

  • The defendant is found unfit to be tried on all three charges
  • A prima facie case is established for each charge
  • The charges are not dismissed
  • The defendant is found unlikely to become fit within 12 months
  • The defendant's intellectual disability is not a type treated in hospital; detention is not ordered
  • The defendant is released subject to conditions for a maximum period of three years, including:
  • Remaining in the care of his nominated social worker (or a replacement under his NDIS plan)
  • Continuing treatment with his nominated allied health provider for assessment and management of his intellectual disability
  • Continuing counselling (including sexual behaviour education) with his nominated counselling service
  • Continuing to reside at his current supported living address and notifying a nominated Federal Agent of any change of address within seven days
  • The defendant's Samsung Galaxy S21 mobile phone is forfeited to the Commonwealth Director of Public Prosecutions under section 23ZD of the Crimes Act 1914 (Cth)

Key Takeaways

  • When Commonwealth charges are prosecuted in New South Wales, the multi-stage fitness regime under the Crimes Act 1914 (Cth) applies, and the fitness criteria in the MHCIFP Act are picked up as the applicable State law through sections 68 and 79 of the Judiciary Act 1903 (Cth) (at [8]).

  • A finding of unfitness does not automatically lead to dismissal of Commonwealth charges. Under section 20BA(2) of the Crimes Act 1914 (Cth), the court must consider whether a finding of guilt, if made, would render any punishment inappropriate. The District Court here declined to dismiss, finding that specific deterrence retained practical utility where the defendant remained responsive to direction and behavioural instruction (at [44]-[45]).

  • Under the Commonwealth framework, once a defendant is found unlikely to become fit within 12 months, the court must consider whether hospital detention is warranted. Where expert evidence establishes that the person's condition is not amenable to hospital treatment, conditional release is available as an alternative (at [47]-[50]).

  • The fitness inquiry under the MHCIFP Act is non-adversarial and the onus of proof does not rest on any party. The court must make its own independent determination, informed by but not bound by expert opinion and the parties' agreed position (at [19]-[21], [34]).

  • Permanent intellectual disability that is stable and not responsive to hospital-based treatment can satisfy the statutory threshold for a finding that the defendant will not become fit within 12 months, foreclosing the pathway to a supervised treatment order in favour of community-based conditional release (at [46]-[50]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 NSW
- Crimes Act 1914 (Cth)
- Criminal Code 1995 (Cth)
- Evidence Act 1995 NSW
- Judiciary Act 1903 (Cth)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18
- R v Presser [1958] VR 45