Judge Criticises Cowboy Prosecutors and Calls on Government to Pay Defendant’s Legal Costs

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By Paul Gregoire and Ugur Nedim

Just after 9 am on 28 November 2021, local man Simon Fleming appeared at the intersection of Windang and Acacia Streets in the Wollongong, armed with a bolt action rifle, a gel blaster that appeared to be a self-loading rifle and a silver case resembling an explosive device. 

Fleming fired the bolt action rifle into the air a number of times, and he shot a round into the bumper bar of a passing vehicle. The man went on to take two civilians hostage inside a shop on Windang Street, prior to surrendering himself to police without incident. 

NSW police originally charged Fleming with a number of state offences, which, on the advice of the Commonwealth Director of Public Prosecutions (CDPP), was changed to the one federal offence of committing a terrorist act, contrary to section 101.1(1) of the Criminal Code Act 1995 (Cth). 

This offence carries life imprisonment as its maximum penalty. 

A USB stick found in Fleming’s possession at the time he was arrested had one file on it titled “The Manifesto”, which contained a document titled “The Fuse”. A number of since deleted files were also retrieved on the device by specialist police officers. 

Associate Professor Deborah Smith examined “The Fuse” file and the content of the other previously erased ones and concluded that the information in the documents revealed Fleming to be a “right-wing extremist”. 

Terror charge dropped 

Fleming was arraigned before the court on 1 May, on a twelve count indictment. The first count was the federal terror offence. Counts two to seven were state offences to act as backup alternatives charges to count one. While the last five offences were contained in the Firearms Act 1996 (NSW). 

On having pleaded not guilty to all the offences, a jury trial commenced and on the 14th day of hearings, the twelve jurors were directed to return a not guilty verdict for the terror offence, and it was dismissed. 

Then, in relation to the final eleven counts, the court returned the special verdict – that the act was proven but the accused was not criminally responsible – in accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). 

Section 28 of the MHCIFP outlines that an accused is not criminally responsible for an act if they were suffering from a mental health or cognitive impairment which had the effect that the person did not know the nature and quality of their act or did not know it was wrong. 

And section 31 provides that the special verdict can be found anytime during a trial if both sides agree and the court considers the defence established. 

This outcome was recognised as a possibility, as the accused had a “history of mental illness” and his conduct at the time of the incident was “bizarre”. Although the prosecution, in its opening address, raised these defences and suggested they shouldn’t be accepted. 

Inexperienced and unorthodox 

Due to the way the prosecution had run its case against him, Fleming, the man who was found not criminally responsible for illegal actions that had been proven due to his mental condition, filed a notice to the NSW Supreme Court seeking an order condemning the Crown case. 

There were a number of issues with the way the prosecution conducted itself at trial, which, on hearing the challenge Fleming put to it, NSW Supreme Court Justice Helen Wilson found were in part due to “inexperience”. 

The first “unorthodox” aspect to the prosecution’s behaviour at trial is that during the arraignment its senior counsel didn’t simply present the indictment to the court, but rather turned to the panel of jurists and presented their case against Fleming before he could enter his plea of not guilty. 

And after having employed forensic psychiatrist Dr Adam Martin to assess Fleming in March this year, he subsequently produced a report for the prosecution on 12 April, which led it to go on to announce to the court mid-trial that it wouldn’t be calling this expert witness to the stand. 

Justice Wilson concluded that the Crown was unwilling to call Martin to give evidence as he’d conceded that the mental health defence was open to Fleming, and the decision would also prevent the accused’s legal team from cross-examining the doctor regarding his evaluation. 

A third major issue with the Crown case, her Honour pointed to, involved a doctor having provided Fleming with a March 2020 certificate of assessment to provide to the NSW police commissioner, outlining that he was mentally stable and fit to renew his firearm licence. 

However, evidence at trial suggested that Fleming’s mental health issues were apparent before the time he was issued with a firearm licence clearance. And despite this doctor having not seen Fleming since around the time he issued the certificate, the Crown asked him to testify during the trial. 

The doctor agreed to provide an assessment of Fleming’s mental health at the time of the incident, November 2021, despite not having seen him for more than 12 months prior to it, and nor did he seek to interview him again or inform him that he was basing a report on his confidential records. 

Her Honour outlined that the doctor was refused the chance to testify as an expert witness, due to his having a conflict of interest, that being that he needed to assess Fleming as having no mental health issues, as he’d supplied the man with a certificate clearing him for gun ownership, 

Abuse of process? 

The order Fleming sought from the Supreme Court was to stipulate that the prosecution “was in part or whole an abuse of process” and an order for costs attributable should be made due to behaviour that was “so flawed and so unfair”. 

Justice Wilson set out that what amounts to an abuse of process depends upon the circumstances of a particular case, and in general, it’s when processes and procedures used to administer justice “have been converted into instruments of injustice and unfairness”. 

Fleming added that the proceedings needlessly caused him to incur costs due to conduct and the length of the trial, as well as the prosecution having caused him reason to secure evidence to “rebut the opinion of a witness who should not have been qualified by the Crown as an expert”. 

Her Honour found that the court could not make a determination that a prosecution was an abuse of process after the fact, as such a conclusion can only be made in relation to a case that’s currently underway or upcoming. 

The 2015 Victorian Supreme Court case Director of Public Prosecutions (Cth) versus Brady & Ors was raised by Fleming, as it involved the CDPP being ordered to pay costs, but as Justice Wilson pointed out, the laws facilitating this outcome don’t exist in NSW and that case had not been finalised. 

Justice Wilson further outlined that there is no power to deem a finalised prosecution as an abuse of process, however the court was able to determine that the CDPP breached the fairness that Fleming was warranted in an indefensible way, which lead him to incur substantial financial costs. 

“The legal costs went well beyond what would have been incurred had the prosecution of Mr Fleming proceeded in a way that reflected the relevant law, the Crown’s obligations of fairness to an accused and common sense,” her Honour continued. 

And whilst prior to receiving Dr Martin’s report that revealed Fleming did have an issue, the Crown may have seriously considered a terror offence conviction possible, but after learning that its expert couldn’t testify in the way it wanted, it was unreasonable and unfair for the CDPP to continue. 

Cost order made 

NSW Supreme Court Justice Wilson outlined on 25 October that while it was beyond the power of the court to order the CDPP cover the extra costs Fleming incurred, she made a recommendation that the federal government consider the case details and whether compensation is warranted. 

However, her Honour did stress that nothing could be done to compel the federal government to make good on this recommendation. 

“However, it may be hoped that the federal authorities will give weight to the recommendation of the Supreme Court of NSW, and act in a spirit of fairness to right a wrong that has been done to a vulnerable mentally ill man through the failings of the CDPP,” Justice Wilson continued. 

“It may be hoped that the Commonwealth attorney general, as the first law officer of the nation, will recognise the injustice occasioned in this instance to a very ill and defenceless individual by the federal prosecutor and act to correct it,” the Supreme Court justice ended.

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