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Court of Criminal Appeal 9 September 2003

REGINA v. RIDDELL

[2003] NSWCCA 251

Also reported as 140 A Crim R 549
Assault & violence
CRIMINAL LAW APPEAL S.5 OF CRIMINAL APPEAL ACT 1912 AVAILABILITY OF APPEAL "RAISING" OF MENTAL ILLNESS DEFENCE AVAILABILITY OF APPEAL

Citation: Regina v Riddell [2003] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 9 September 2003
Judges: Greg James J (leading judgment), Hidden J, Bergin J

Background

The appellant was charged in the District Court with attempted murder and malicious wounding with intent to cause grievous bodily harm, arising from an incident in Byron Bay in October 2000. Before trial, an inquiry found him fit to stand trial. The matter proceeded as a judge-alone trial before Gibson DCJ.

Despite the appellant himself not raising mental illness as a defence, two psychiatric reports tendered in evidence, one by the Crown and one by the defence, both concluded that the appellant was suffering from chronic paranoid schizophrenia at the time of the offence. Gibson DCJ relied on that material to enter a special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990. That verdict required the appellant to be detained until released by due process of law.

The appellant sought to challenge that verdict in the Court of Criminal Appeal, appearing without legal representation.

  • Whether the appellant had a right of appeal under s 5 of the Criminal Appeal Act 1912 against a special verdict of not guilty by reason of mental illness
  • Whether s 5(2) of that Act, which deems a person acquitted on the ground of mental illness (where mental illness was not set up as a defence) to be a "person convicted," created the necessary standing to appeal
  • What consequences would follow under s 7(4) of the Criminal Appeal Act 1912 if the appeal were upheld on procedural grounds
  • Whether the court should consider the substance of the mental illness defence in determining how to exercise its powers on appeal

Decision

The court accepted that s 5(2) of the Criminal Appeal Act 1912 potentially provided a pathway for the appellant to appeal, because the mental illness verdict had been entered without the appellant himself raising it as a defence. That provision deems such an acquittee to be a "convicted person" for appeal purposes, and any custody order to be a "sentence."

Greg James J turned to the practical question of what would happen if the appeal succeeded on procedural grounds. Section 7(4) of the Criminal Appeal Act 1912 empowers the Court of Criminal Appeal, if it finds that the appellant committed the act charged but was mentally ill at the time, to quash the conviction and sentence and order the appellant to be detained in the same manner as the trial court directed. His Honour concluded that, given the psychiatric evidence from both the Crown and defence experts, and additional material provided by the appellant on the day of hearing, the only proper conclusion available on the facts was that the appellant had committed the relevant acts and was mentally ill at the time.

Because upholding the appeal on procedural grounds would, under s 7(4), lead to precisely the same outcome as the original verdict, the court found no utility in disturbing the result. The appeal was therefore dismissed. All three judges agreed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 5(2) of the Criminal Appeal Act 1912, a person who receives a special verdict of not guilty by reason of mental illness, where that defence was not raised by the accused, is deemed a "convicted person" for appeal purposes and can bring an appeal to the Court of Criminal Appeal.
  • Section 7(4) of the Criminal Appeal Act 1912 empowers the Court of Criminal Appeal, on any appeal, to quash a conviction and sentence and order ongoing detention if it is satisfied the appellant committed the act but was mentally ill so as not to be legally responsible at the time.
  • In dismissing the appeal, the court reasoned that where the only available outcome on the evidence, even if the original verdict were set aside on procedural grounds, would be an identical order under s 7(4), there is no utility in disturbing the original verdict.
  • A court considering the substance of a mental illness appeal must assess both whether the accused committed the relevant act and whether they were mentally ill at the time, before exercising the s 7(4) power.
  • The general rule that a party is bound by the course taken by their counsel (confirmed in Regina v Birks) may not apply without qualification in cases involving fitness to instruct or the possible presence of mental illness.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 5(2), 7(4)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 38, 39
- Criminal Procedure Act 1986 (NSW)

Cases:
- Foy (1922) 39 WN(NSW) 20
- Greig (1996) 89 A Crim R 254
- Regina v Birks (1990) 19 NSWLR 677