R v Mark Joseph SMITH [2008] NSWDC 23

R v Mark Joseph SMITH [2008] NSWDC 23

The accused was fit to be tried because the evidence established on the balance of probabilities that all Presser criteria were satisfied: he understood the charges, could plead, understood the nature of the proceedings and the substantial effect of the evidence, could communicate with and understand advice from legal advisers, and could assist in his defence despite claimed memory loss. His difficulties with processing information, concentration, stress and anxiety could be accommodated by one-on-one assistance, breaks and adjournments, and amnesia alone was not sufficient to establish unfitness.

Jurisdiction
Australia
Judgment Date
12 March 2008
Procedural Posture
Criminal Fitness to Be Tried Inquiry / Before Arraignment on Indictment
Outcome
The accused is fit to be tried.
Legal Topics
['fitness to Be Tried' 'presser Test' 'amnesia' 'false Swearing Before the Police Integrity Commission']
['criminal Law' 'mental Health and Criminal Procedure'] ['fitness to Be Tried' 'presser Test' 'amnesia' 'false Swearing Before the Police Integrity Commission']

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Procedural Posture

Criminal Fitness to Be Tried Inquiry / Before Arraignment on Indictment

Legal Issues

  1. 1 ['Whether the accused was fit to be tried for three allegations of false swearing before the Police Integrity Commission.' "Whether the accused's memory loss, cognitive deficits, depression, anxiety and epilepsy prevented him from following the proceedings or instructing counsel under the Presser criteria."]

Ratio Decidendi

The accused was fit to be tried because the evidence established on the balance of probabilities that all Presser criteria were satisfied: he understood the charges, could plead, understood the nature of the proceedings and the substantial effect of the evidence, could communicate with and understand advice from legal advisers, and could assist in his defence despite claimed memory loss. His difficulties with processing information, concentration, stress and anxiety could be accommodated by one-on-one assistance, breaks and adjournments, and amnesia alone was not sufficient to establish unfitness.

Court Disposition

The accused is fit to be tried.

Orders

  • ['The accused is fit to be tried.' 'Any proceedings relating to the prosecution of the accused will need to provide opportunity for one-on-one assistance, suitable breaks and adjournments, and appropriate steps if an acute stress or anxiety episode affects his understanding of proceedings.']