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Court of Criminal Appeal 6 April 2005

Regina v Bridge

[2005] NSWCCA 122

Assault & violence
FITNESS TO BE TRIED HEARING

Citation: Regina v Bridge [2005] NSWCCA 122
Court: New South Wales Court of Criminal Appeal
Date: 6 April 2005
Judge(s): Hunt AJA, Grove J, Hall J

Background

The appellant faced a charge in the Wollongong District Court of maliciously wounding another man with intent to cause him grievous bodily harm. The alleged incident involved the appellant throwing the complainant to the floor head first, causing a wound requiring stitches, and attempting to choke him.

Before the criminal trial could proceed, a jury conducted a fitness to be tried hearing pursuant to the Mental Health (Criminal Procedure) Act 1990. Each party called a psychiatrist. The jury found, on the balance of probabilities, that the appellant was unfit to be tried.

The appellant, who was unrepresented on appeal, challenged that finding. He raised a range of grounds, including complaints about his counsel's conduct during the hearing, disputes with the psychiatric evidence, and claims that documents existed that would have altered one psychiatrist's opinion.

  • Whether a person found unfit to be tried under the Mental Health (Criminal Procedure) Act 1990 has a right of appeal under the Criminal Appeal Act 1912
  • Whether the jury's finding of unfitness was unreasonable or unsupported by the evidence
  • Whether the appellant's legal representatives failed to conduct a fair hearing, including by not obtaining material relevant to the psychiatric evidence
  • Whether the appellant's counsel's failure to investigate certain documents constituted a miscarriage of justice

Decision

The Court first resolved a preliminary question about jurisdiction. The Legal Aid Commission had initially advised the appellant that no appeal lay from a finding of unfitness, because the Criminal Appeal Act 1912 applies only to persons "convicted on indictment." The Court clarified that the Act defines "conviction" to include a finding of unfitness under s 14 of the Mental Health (Criminal Procedure) Act 1990, so an appeal was available.

Hunt AJA, with Grove J and Hall J agreeing, examined the psychiatric evidence before the jury. Dr Allnutt, called by the defence, expressed the opinion that the appellant presented with symptoms consistent with a psychotic disorder, including grandiosity and persecutory ideas. He qualified his opinion as to grandiose delusions by noting that, if the appellant's claimed financial and academic achievements could be verified, those beliefs might not be delusional. Dr Nielssen, called by the Crown, identified an acute psychotic illness and found that the appellant's communication disorder and delusional beliefs, including a widespread belief in a conspiracy against him that encompassed the legal system, impaired his ability to give instructions and to understand the evidence.

The Court rejected the appellant's complaint that his counsel should have obtained material from South Australian authorities to address Dr Allnutt's qualification. To succeed on that ground, the appellant would have needed to demonstrate at least some prospect that such material actually existed and would have verified his claims. No such demonstration was made.

On the central question, Hunt AJA was satisfied that there was no error of law in the trial judge's directions and that it was well open to the jury, on the evidence, to find on the balance of probabilities that the appellant was unfit to be tried. The Court found no failure by the appellant's legal representatives and no miscarriage of justice.

Orders Made

  • The appeal against the jury's finding of unfitness to be tried was dismissed.

Key Takeaways

  • A finding of unfitness to be tried under s 14 of the Mental Health (Criminal Procedure) Act 1990 constitutes a "conviction" for the purposes of the Criminal Appeal Act 1912, and an appeal against such a finding is therefore available.
  • An appeal against a fitness to be tried finding is not a rehearing. The appellate court asks whether the jury's finding was unreasonable or unsupported by the evidence, whether the trial judge made an error of law, or whether a miscarriage of justice occurred.
  • To establish that counsel's failure to obtain additional evidence caused a miscarriage of justice, an appellant must demonstrate at least some prospect that the material would actually exist and would have altered the outcome. A bare assertion is insufficient.
  • No error was established in the jury's approach where two psychiatrists gave evidence supporting unfitness, and where one psychiatrist's qualified opinion was limited in scope and did not extend to the totality of the delusional beliefs documented.
  • Under s 12 of the Mental Health (Criminal Procedure) Act 1990, an accused person does not have the right to appear in person at a fitness to be tried hearing unless specifically permitted, and legal representation is required.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 2, 5
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 12, 14, 15, 16, 19

Cases:
- Kesavarajah v The Queen (1994) 181 CLR 230
- Regina v Prosser [1958] VR 45