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14
Court of Criminal Appeal 14 December 2001

REGINA v ZVONARIC

[2001] NSWCCA 505

Also reported as (2001) 54 NSWLR 1
Public order & justice offences
APPELLANT UNFIT FOR TRIAL SPECIAL HEARING NECESSITY FOR ARRAIGNMENT WHETHER EVIDENCE MUST BE SWORN ADEQUACY OF REASONS APPEAL ALLOWED

Citation: [2001] NSWCCA 505
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2001
Judge(s): Spigelman CJ; Sully J; Adams J

Background

The appellant was a person found unfit to be tried in the ordinary way. Following a direction from the Attorney General, a special hearing was conducted in the District Court pursuant to Part 2 of the Mental Health (Criminal Procedure) Act 1990. The purpose of a special hearing is to ensure that a person found unfit for trial is acquitted unless it can be proved to the criminal standard that, on the limited evidence available, the person committed the offence charged.

The appellant elected, under section 21A of the Act, to have the special hearing determined by the judge alone rather than by a jury. At the hearing, the indictment was not read aloud but merely handed up, the prosecution tendered the entirety of its case by way of written witness statements, and the judge delivered reasons that the Court of Criminal Appeal later found to be inadequate.

The District Court made findings that the appellant had committed several of the charged offences. The appellant, who was unrepresented before the Court of Criminal Appeal, challenged those findings on various grounds.

  • Whether a formal arraignment (reading the indictment aloud) is required at a special hearing under the Act
  • Whether the prosecution's evidence at a special hearing must be given on oath, or whether it may be presented entirely through written statements tendered by consent
  • Whether an accused person's consent can authorise the tender of the entire prosecution case as documentary material, without witnesses giving oral or sworn evidence
  • Whether the judge's reasons satisfied the requirements of section 21B(2) of the Act, which requires a determination to include the principles of law applied and the findings of fact relied upon
  • Whether the irregularities, taken together, constituted a substantial miscarriage of justice warranting the quashing of the findings

Decision

Arraignment. All three judges agreed that the obligation in section 21(1) to conduct a special hearing "as nearly as possible as if it were a trial of criminal proceedings" requires a formal arraignment, including the reading aloud of the indictment. Section 56(2) of the Criminal Procedure Act 1986 requires arraignment before the District Court has jurisdiction over proceedings on indictment. Spigelman CJ held that simply handing up the indictment, without reading it aloud, exceeded the degree of informality that section 21(1) permits.

Tender of evidence by written statements. Adams J concluded that tendering the whole of the prosecution case through written witness statements, even with the consent of the person charged, contravened the requirements of section 21(1). A special hearing must be conducted as a proceeding in which evidence is given in the ordinary way. Spigelman CJ, however, took a different view on this point, finding that the tender of witness statements was not, in the circumstances of this particular case, a breach of section 21(1). Sully J agreed with the orders proposed.

Adequacy of reasons. The Court was united in concluding that the judge's reasons failed to meet the standard required by section 21B(2). Drawing on the High Court's approach in Fleming v The Queen, the section requires more than a bare statement of principles and conclusions. The reasons must disclose the judge's actual reasoning process, including meaningful engagement with the findings of fact. The reasons delivered in the District Court did not satisfy that obligation.

Overall outcome. Adams J, whose reasons on the miscarriage of justice point were central to the Court's orders, found that the failures identified, taken collectively, represented a fundamental departure from the statutory requirements governing special hearings. The Act specifically contemplates that the accused person in such proceedings is unable adequately to make good a defence, which made the departures more serious. Given the delay, the time the appellant had already spent in custody, and the orders previously made in the District Court, the Court determined that ordering a fresh special hearing was not appropriate. Verdicts of acquittal were entered instead.

Orders Made

  • Time extended for the purpose of the appeal against the findings that the appellant committed the offences in counts two to five of the indictment
  • Appeal allowed in respect of those counts
  • Verdicts of acquittal entered in respect of counts two to five of the indictment
  • The application to appeal against sentence was not considered, as it became unnecessary

Key Takeaways

  • A special hearing under the Mental Health (Criminal Procedure) Act 1990 must include a formal arraignment, with the indictment read aloud in open court; handing it up without reading it falls short of what section 21(1) requires.
  • Under section 21B(2), a judge conducting a judge-alone special hearing must deliver reasons that set out both the principles of law applied and the findings of fact relied upon; a bare statement of principles and conclusions does not satisfy this obligation, consistent with the High Court's approach in Fleming v The Queen.
  • The Court of Criminal Appeal was divided on whether consent by the person charged can authorise the tender of the entire prosecution case as written statements; Spigelman CJ held it was permissible in the circumstances, while Adams J treated it as a procedural irregularity.
  • Where multiple procedural departures occur in a special hearing, the cumulative effect may constitute a substantial miscarriage of justice even if no single departure would have done so alone, particularly given that the statutory scheme recognises the accused's limited capacity to defend themselves.
  • In appropriate circumstances, where delay and time already spent in custody make a retrial unjust, the Court of Criminal Appeal may enter verdicts of acquittal rather than order a new special hearing.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21, 21A, 21B, 22, 23
- Criminal Procedure Act 1986 (NSW), s 56(2)
- Evidence Act 1995 (NSW)

Cases
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- R v Presser [1958] VR 45
- Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47