R v Coath [2008] ACTSC 89 (8 September 2008)

Last Updated: 25 September 2008

R v ALICE COATH

[2008] ACTSC 89 (8 September 2008)

EX TEMPORE JUDGMENT

No. SCC 275 of 2006

Judge: Rares J

Supreme Court of the ACT

Date: 8 September 2008

IN THE SUPREME COURT OF THE )

) No. SCC 275 of 2006

AUSTRALIAN CAPITAL TERRITORY )

R

v

ALICE COATH

ORDER

Judge: Rares J

Date: 8 September 2008

Place: Canberra

THE COURT:

1. Orders that the trial date fixed for today be vacated.
2. Notes that the accused has promised the Court that she will undertake a sleep deprived EEG as soon as practicable after today.
3. Orders that the bail of the accused continue on the same terms and conditions as it is currently.
4. Orders that the proceedings be remitted to the registrar’s list to fix a date for the trial.

1. This is an application to vacate the trial today, an earlier application having been made to the Chief Justice on less full materials on 4 September 2008. This morning I heard evidence from Dr Grahame George, a consultant psychiatrist, who examined the accused on 13 March 2008 and prepared a detailed report. Dr George raised the question whether the accused suffered from epilepsy in that report and in a shorter report of the same date to the presiding judge in her criminal proceedings.

2. He has explained that a clinical diagnosis of epilepsy is a matter for a neurologist and that, in the ordinary course, the initial means of undertaking such a diagnosis requires the patient to undertake a sleep deprived EEG examination involving, effectively, her staying awake until midnight and then for the rest of the night and undergoing a test at about 9 o’clock the next morning. Although Dr George recommended to the accused that she undertake such an examination promptly after being discharged from custody following his consultation with her, I have been informed that this has not happened.

3. However, in recent weeks the significance to a possible defence of mental impairment has been considered by those advising Ms Coath.

4. The question has some novelty for the purposes of s 27 of the Criminal Code 2002 (ACT) as to whether the accused has epilepsy at all, and if so, whether it is merely within one or other of the connotations of “mental impairment” in s 27(1) of the Code or falls within the definition of “mental illness” as a subset of those connotations in subs (2).

5. The consequence of the latter is that the jury, if it were satisfied, might find that the accused was not guilty of the offence because of mental impairment with consequences to her different from an acquittal. Despite the fact that the trial has been fixed for some time to commence today, and involves conduct which is alleged to have occurred as long ago as 14 April 2006, I am satisfied that it is in the interests of justice that I should grant the adjournment sought.

6. The accused, through her counsel, has promised to undertake a sleep deprived EEG test as soon as practicable if I were to grant the adjournment. Balancing all relevant considerations, including those contained in ss 21(1) and 22(1) and (2) particularly (b) and (c) of the Human Rights Act 2004 (ACT) and having regard to the further evidence of Dr George given orally this morning, I am satisfied that it is appropriate to grant an adjournment on the basis of the accused’s promise proffered by counsel.

7. In those circumstances, I will note that the accused has promised to the court that she will undertake a sleep deprived EEG test as soon as practicable after today

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Associate:

Date: 19 September 2008

Counsel for the Crown: JG Lundy

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the Accused: S Gill

Solicitor for the Accused: ACT Legal Aid

Date of hearing: 8 September 2008

Date of judgment: 8 September 2008