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10
Court of Criminal Appeal 1 October 2003

R v R.T.I.

[2003] NSWCCA 283

Also reported as (2003) 58 NSWLR 438
Sexual offencesPublic order & justice offences
CRIMINAL LAW AND PROCEDURE APPEAL APPEAL AGAINST CONVICTION

Citation: R.T.I. v R [2003] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 1 October 2003
Judge(s): Tobias JA, Howie J, Shaw J

Background

The appellant was convicted by juries in the District Court on two separate indictments involving child sexual assault offences allegedly committed against two of his daughters. Judge Twigg presided over both trials, which were held in February and March 2002. The appellant received an effective head sentence of 15 years imprisonment with a non-parole period of 10 years.

Following sentencing, the appellant was due to face two further trials on related charges. His legal representatives became concerned about his mental state and arranged a psychological assessment. That assessment, and subsequent psychiatric reports, raised serious doubts about whether he had been fit to stand trial at the time of the original trials.

Psychiatric and psychological evidence from multiple experts indicated the appellant suffered from a combination of subnormal intelligence, likely chronic mental illness (with either schizophrenic or depressive features), possible organic cognitive deficits from long-term substance abuse, and significant apathy and disorientation. Both the Crown's and the defence's experts ultimately concluded he was not fit to be tried at the time the question was assessed.

  • Whether a miscarriage of justice occurred because the appellant may have been unfit to stand trial at the time of his trials, with that question only emerging after conviction and sentence.
  • What procedural approach the Court of Criminal Appeal should take when unfitness is raised for the first time on appeal, after conviction, rather than before or during the trial.
  • Whether the procedures under the Mental Health (Criminal Procedure) Act 1990 for dealing with fitness questions apply in circumstances where the accused has already been convicted and sentenced.

Decision

Howie J (with whom Tobias JA and Shaw J agreed) held that the fitness question could not be resolved through the statutory machinery of the Mental Health (Criminal Procedure) Act 1990. The Act's procedures, including referral to the Mental Health Tribunal, special hearings, and the fixing of a limiting term under section 23, presuppose that the accused has not yet been convicted. Those mechanisms cannot sensibly operate where a conviction and sentence already exist.

Howie J reviewed the approach previously taken in R v Kent and concluded, in light of the High Court's reasoning in Eastman v The Queen (2000) 203 CLR 1 and Eastman v DPP (ACT) (2003), that the earlier procedure was no longer appropriate. The correct approach is for the Court of Criminal Appeal to quash the conviction unless it is satisfied that, had the fitness question been raised before or during trial, the court would reasonably have found the accused fit. Only if that finding is available can a miscarriage of justice be ruled out.

On the facts, the Court was not satisfied that a finding of fitness could have been made. The combined expert evidence, pointing to intellectual disability, mental illness, memory impairment, and an inability to give meaningful instructions or follow proceedings, meant the possibility of a miscarriage of justice could not be dismissed. The convictions and sentences were therefore quashed and a new trial ordered on all charges.

Orders Made

  • The appeal in respect of each indictment is allowed.
  • The convictions and sentences are quashed.
  • A retrial is ordered in respect of all charges of which the appellant was convicted.

Key Takeaways

  • Where credible psychiatric or psychological evidence raises a question about an accused's fitness to stand trial, and that question only emerges after conviction and sentence, the Court of Criminal Appeal must quash the conviction unless it can be satisfied a court would reasonably have found the accused fit had the issue been raised at the time.
  • A conviction for serious offences may be set aside on appeal even where no ground of unfitness was identified during the trial proceedings, provided fresh evidence demonstrates the issue was live and unaddressed.
  • The procedural framework under the Mental Health (Criminal Procedure) Act 1990 for fitness inquiries does not apply once an accused has already been convicted: the statutory mechanisms for special hearings, tribunal referrals, and limiting terms are directed at pre-conviction situations only.
  • Unfitness arising from a combination of factors, including subnormal intelligence, mental illness, and cognitive impairment from substance abuse, may be sufficient to raise the requisite concern even where no single factor alone would establish unfitness.
  • The Court of Criminal Appeal confirmed that its approach in R v Kent had been superseded by the High Court's reasoning in Eastman v The Queen, shifting the test toward requiring affirmative satisfaction of fitness before a conviction can stand.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 61E(1)(A), 61E(2A), 66A, 66C(2)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 7–10, 13–14, 19, 23
- Mental Health Act 1990 (NSW)
- Criminal Appeal Act 1912 (NSW), s 12
- Crimes Act (ACT), s 475

Cases:
- Eastman v The Queen (2000) 203 CLR 1
- Eastman v Director of Public Prosecutions (ACT) (2003) 77 ALJR 1122
- R v Kent (NSWCCA, 25 September 1996, unreported)
- R v Kent (NSWCCA, 8 October 1998, unreported)
- R v Mailes (2001) 126 A Crim R 155
- R v Zhang [2000] NSWCCA 344