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2
Court of Criminal Appeal 11 June 1999

R v Smith

[1999] NSWCCA 126

Sexual offences
CRIMINAL LAW AND PROCEDURE UNFIT TO BE TRIED SPECIAL HEARING DECISIONS ABOUT CONDUCT OF DEFENCE.

Citation: R v Smith [1999] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 11 June 1999
Judge(s): James J; Barr J; Carruthers AJ

Background

The appellant was charged with two counts of aggravated sexual assault arising from an incident in Moree on 20 July 1993. In May 1994, a District Court judge found him unfit to stand trial. The Mental Health Review Tribunal later determined he would not become fit within twelve months, and the Attorney General directed that a special hearing be conducted under the Mental Health (Criminal Procedure) Act.

The special hearing was held before Judge Twigg and a jury in December 1995. The jury returned verdicts that, on the limited evidence available, the appellant had committed both offences. Those verdicts were the functional equivalent of convictions under the Act's framework.

The appellant sought an extension of time in which to appeal against those verdicts. His application was heard by the Court of Criminal Appeal in May 1999, by which time he had been released into community mental health care.

  • Whether an extension of time to appeal against the special hearing verdicts should be granted.
  • Whether errors in the conduct of the special hearing, including how the trial judge managed the appellant's behaviour and decisions about the conduct of the defence, were sufficient to establish a miscarriage of justice.
  • Whether the verdicts returned at the special hearing were unsafe in light of the evidence presented.

Decision

James J (with whom Barr J and Carruthers AJ agreed) granted the extension of time to appeal but dismissed the appeal against conviction. The court examined the complainant's evidence in detail and noted it was corroborated by several independent witnesses, including a taxi driver, the complainant's brother, her cousin, and a number of police officers who observed the complainant's condition on the night.

On the question of how Judge Twigg managed the proceedings, the court found no error capable of producing a miscarriage of justice. The trial judge had faced a genuinely difficult task in managing a hearing involving a person found unfit to stand trial, and the court was satisfied the course he adopted was appropriate in the circumstances.

Carruthers AJ added observations about the inherent difficulties of special hearings as a procedural category. He noted that a person found unfit to stand trial might behave inappropriately during the hearing, including by making prejudicial statements or disrupting proceedings, and that the presiding judge carries an obligation to manage such conduct as best as possible to prevent a miscarriage. He expressed confidence that the community would expect jurors, made aware of the nature of a special hearing, to approach any such behaviour with maturity and sensitivity.

Orders Made

  • Extension of time to appeal granted.
  • Appeal against conviction dismissed.

Key Takeaways

  • Under the Mental Health (Criminal Procedure) Act, a special hearing may result in verdicts that the accused committed the offences charged "on the limited evidence available," and those verdicts are subject to appeal in the same way as convictions.
  • A finding that an accused is unfit to stand trial does not preclude a special hearing being conducted, particularly where the Mental Health Review Tribunal determines the accused will not become fit within twelve months and the Attorney General exercises the power to direct such a hearing.
  • Special hearings create inherent procedural difficulties, particularly where the accused's mental state may lead to disruptive or prejudicial conduct during the hearing; the presiding judge carries an obligation to manage this risk.
  • No miscarriage of justice was established in circumstances where the trial judge's management of the proceedings was considered appropriate and the Crown case was corroborated by multiple independent witnesses.
  • Carruthers AJ's observations confirm that courts will assess whether the course taken by a trial judge in a special hearing was capable of causing a miscarriage, rather than whether another judge might have acted differently.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act (NSW), in particular ss 18, 22, and 23
- Mental Health Act 1990 (NSW), ss 89(1) and 131
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act (NSW), s 2

Cases:
- Jones v Dunkel (referenced in the context of the trial judge's direction to the jury regarding witnesses not called by the Crown)