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Court of Criminal Appeal 31 August 2000

R v Zhang

[2000] NSWCCA 344

Assault & violenceHomicide
CRIMINAL LAW & PROCEDURE MENTAL HEALTH FITNESS TO BE TRIED ISSUE RAISED IN GOOD FAITH NO ALTERNATIVE BUT TO ORDER INQUIRY MIS

Citation: Zhang v R [2000] NSWCCA 344
Court: New South Wales Court of Criminal Appeal
Date: 31 August 2000
Judge(s): Foster AJA, Dunford J, Greg James J

Background

The appellant was convicted before Dowd J and a jury of murder, attempted murder, use of an offensive weapon with intent to prevent lawful apprehension, and malicious wounding. He received an effective total sentence of 19 years minimum with a five-year additional term. The charges arose from a stabbing at a real estate agency in Fairfield in May 1997, following a dispute between the appellant (a tenant) and the deceased (a managing agent) over a locks replacement issue.

From the outset, the appellant refused legal representation and insisted on appearing for himself. Two psychiatrists who examined him before trial reported limited cooperation, and neither could confidently exclude the presence of a psychiatric condition.

Concern about the appellant's mental fitness for trial was raised on multiple occasions. The sole ground of appeal was that the trial judge had erred by failing to conduct a formal fitness inquiry under the Mental Health (Criminal Procedure) Act 1990, and that this failure amounted to a miscarriage of justice.

  • Whether the trial judge was required to discharge the jury and order a fitness inquiry once the question of the appellant's fitness to be tried was raised in good faith during the trial.
  • Whether the Crown Prosecutor could validly "withdraw" a concern about fitness to stand trial after the trial judge had already found that the issue had been raised in good faith.
  • What procedural consequences followed from the failure to hold such an inquiry.

Decision

On the fourth day of trial, the Crown Prosecutor raised concerns about the appellant's fitness to stand trial. The trial judge expressly found that the issue had been raised in good faith. However, the Crown Prosecutor subsequently purported to withdraw the "application," and the trial proceeded without any fitness inquiry being conducted.

Dunford J (with whom Foster AJA and Greg James J agreed) held that once a judge finds that the question of fitness has been raised in good faith, section 10 of the Mental Health (Criminal Procedure) Act 1990 operates mandatorily. The judge had no discretion to allow the trial to continue. The Crown Prosecutor had no power to withdraw the concern once that threshold was crossed, and the trial judge was obliged to discharge the jury and order an inquiry.

The court distinguished the decisions in Eastman v The Queen and Kesavarajah v The Queen, noting that those cases dealt with materially different legislation in Victoria and the Australian Capital Territory. Under the NSW Act, section 10 admits of no additional threshold test beyond the "raised in good faith" requirement.

The failure to order an inquiry constituted a mis-trial, amounting to a fundamental flaw in the trial process. The conviction was accordingly set aside and a new trial ordered. Because the fitness question had now been raised before the appellant's re-arraignment, section 8 of the Act applied, placing the question of whether to conduct a pre-trial inquiry in the hands of the Attorney General.

Orders Made

  • Appeal allowed.
  • Convictions and sentences quashed.
  • New trial ordered.
  • Noted that the question of the appellant's unfitness to be tried had been raised before his arraignment on the new trial, and accordingly section 8 of the Mental Health (Criminal Procedure) Act 1990 applies.

Key Takeaways

  • Under section 10 of the Mental Health (Criminal Procedure) Act 1990 (NSW), once a judge finds that the question of fitness to be tried has been raised in good faith, the judge has no alternative but to discharge the jury and order a fitness inquiry. The provision is mandatory, not discretionary.
  • A party cannot unilaterally "withdraw" a concern about fitness to stand trial after the trial judge has already found it was raised in good faith. The threshold finding itself triggers the statutory obligation.
  • Section 10 of the NSW Act contains only one threshold test: whether the question was raised in good faith. The Court of Criminal Appeal rejected the Crown's submission that an additional threshold requirement exists to filter out over-anxious or tactical applications, finding such a test has no textual basis in the legislation.
  • Proceeding to verdict without conducting the required fitness inquiry produces a mis-trial and constitutes what the High Court in Eastman described as "a fundamental flaw in the trial process," requiring the conviction to be set aside.
  • Where a new trial is ordered and the fitness question arises before re-arraignment, section 8 of the Act governs the process, with the Attorney General responsible for determining whether an inquiry should be held before the re-trial proceeds.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 5 to 11A (particularly ss 8 and 10)

Cases
- Eastman v The Queen [2000] HCA 29, 74 ALJR 915
- Kesavarajah v The Queen (1994) 181 CLR 230
- R v Presser [1958] VR 45