A Supreme Court judge recommends that the federal government pay Windang shooter Simon Fleming an amount equivalent to his legal costs after slamming the prosecution for "a wrong that has been done to a vulnerable mentally ill man".
Mr Fleming faced trial in May 2023 on charges of committing a terrorist act and 11 other offences - six of which were alternatives to the first and the remainder of which were firearms offences - after he fired shots on Windang Road and took two hostages in a dive shop in November 2021.
After two weeks the jury was directed to return a verdict of not guilty on the terrorism charge; on the remaining 11 charges the court returned a special verdict, meaning the acts were proven but Mr Fleming was not criminally responsible on mental health grounds.
Mr Fleming made an application for costs, arguing that it would not have been reasonable to begin proceedings against him if the Crown had all the relevant facts, and his prosecution was so flawed and unfair it amounted to an "abuse of process".
In determining Mr Fleming's application, Supreme Court judge Helen Wilson - who also presided over the trial - was highly critical of the Commonwealth's prosecution, saying prosecutors knew from at least April 2023 that there was no reasonable prospect of conviction.
Justice Wilson said Mr Fleming was mentally ill but he was held in custody under the strictest regime because of the terrorism charge and denied access to facilities or treatment available to other accused people.
The prosecution "became outright unfair" and prosecutors acted "contrary to ethical obligations", she said, when they decided against calling a forensic psychiatrist and "critical witness" whose evidence supported an assertion Mr Fleming was mentally ill when he took to Windang's main street in November 2021.
Justice Wilson said this could only have been done because the Crown did not want to concede that Mr Fleming had a defence of mental illness or mental health impairment available to him.
The psychiatrist had reported that a document the Crown relied upon to prove its terrorism case was the "rambling rantings of a person who is severely mentally ill".
Justice Wilson said that had the Crown accepted its own witness' evidence, the jury trial would have been unnecessary and offences could have been dealt with under mental health legislation.
She also said the prosecutor advised the jury of the most important evidence it would hear before Mr Fleming had an opportunity to plead not guilty - an action she attributed to inexperience - and framed the issue of Mr Fleming's mental health as uncertain, despite expert evidence, his history of mental illness and his "bizarre" behaviour.
The Crown case "went beyond that which was essential or important", she said, resulting in the risk of unfair prejudice.
She was also critical of the Crown's attempt to use a psychiatrist Mr Fleming had seen in the community as an expert witness, when Mr Fleming had not given this doctor permission to disclose confidential medical information.
The doctor had a personal interest in establishing Mr Fleming was not mentally ill, she said, because in March 2020 he had deemed him fit to hold a firearms licence.
Justice Wilson said the court was not in a position to find there had been an abuse of process, although it could conclude that the Crown's prosecution was "unfair and oppressive".
"This unfairness caused Mr Fleming to incur very substantial legal costs that he should not have had to incur, and would not have incurred, but for the indefensible way in which he was treated by the Crown at and in the period leading up to his trial," she said.
She found the court did not have the power to award costs against the Commonwealth Director of Public Prosecutions but had it been able, she would have ordered the CDPP compensate Mr Fleming for all legal costs he incurred from April 13.
Instead, Justice Wilson recommended the Commonwealth make an ex gratia, or 'act of grace', payment to Mr Fleming, equivalent to his legal costs regarding the terrorism charge, and ordered the court write to Attorney-General Mark Dreyfus and Finance Minister Katy Gallagher with this recommendation.
"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," she said.
The Mercury has contacted the offices of Mr Dreyfus and Ms Gallagher.
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