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51
Court of Criminal Appeal 8 July 2005

R v Minani

[2005] NSWCCA 226

Also reported as (2005) 154 A Crim R 349
Assault & violence
ACCUSED NOT FIT TO BE TRIED SPECIAL HEARING OF CRIMINAL CHARGE SECTION 21A NOT SATISFIED PURPOSE OF S 7(4)

Citation: R v Minani [2005] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 8 July 2005
Judge(s): Spigelman CJ, Hunt AJA, Howie J

Background

The appellant was charged with maliciously wounding a man with intent to inflict grievous bodily harm, following a stabbing at a Sydney backpacker's hostel. The appellant had accused the victim of stealing his cigarettes, and the incident escalated into a violent confrontation in which the appellant stabbed the victim three times. The facts were not in dispute; the appellant admitted the stabbing to both police and psychiatrists.

Because questions arose about the appellant's mental state, an inquiry into his fitness to be tried was conducted before a jury, which found him unfit. A special hearing of the charge was then held under the Mental Health (Criminal Procedure) Act 1990. The appellant elected for that special hearing to proceed before a judge alone, without a jury. Judge McGuire determined that the appellant was not guilty on the ground of mental illness.

The appellant appealed on the basis that the special hearing had been conducted without proper compliance with the statutory requirements governing his election to waive a jury, and that the judge had also made errors in his findings of fact and law.

  • Whether the trial judge properly satisfied the requirements of section 21A of the Mental Health (Criminal Procedure) Act 1990 before accepting the appellant's election to proceed before a judge alone
  • Whether the error in proceeding under section 21A was a mere procedural irregularity, or something more fundamental
  • Whether the judge was entitled to make an order under section 7(4) of the Criminal Appeal Act 1912 rather than ordering a new special hearing
  • Whether the judge erred in finding the appellant had the specific intent to inflict grievous bodily harm, given the evidence and the relevance of mental illness to specific intent
  • Whether the judge complied with section 21B of the Act, which requires reasons identifying the principles of law applied and the findings of fact relied upon

Decision

Section 21A: Election to waive jury. Section 21A requires a judge to be satisfied that, before making an election to proceed without a jury, the accused sought and received advice from a barrister or solicitor. The Court of Criminal Appeal confirmed that this obligation goes further than confirming that advice was received. The judge must be satisfied that the legal adviser was themselves satisfied that the accused properly understood the nature of the election being made. In this case, psychiatric material raised real concern about whether the appellant was competent to make such an election, yet the judge made no inquiries of the appellant's solicitor as to whether any psychiatric assessment of that competence had been obtained. The psychiatric reports tendered addressed the mental illness defence but did not address the election question. The Court held that section 21A had not been satisfied.

Whether section 7(4) relief was appropriate. The Crown argued that if the determination were quashed, the Court should make an order under section 7(4) of the Criminal Appeal Act 1912 for the appellant to be detained in strict custody rather than ordering a fresh special hearing. The Court rejected this approach. Section 7(4) has been used in cases involving procedural irregularities, but the failure to comply with section 21A was not of that character. The judge had erroneously denied the appellant his right to a jury at the special hearing. That was an error of fundamental importance, and the Crown ultimately conceded that section 7(4) did not arise if the appellant succeeded on the section 21A ground.

Specific intent and mental illness. The Court also found that the judge erred in concluding the appellant had the specific intent required for the charge. The Statement of Facts did not establish an intention to inflict grievous bodily harm, and the Crown conceded the material could support no more than an intention to cause injury. Further, the judge failed to apply or identify the principle, established in Hawkins v The Queen (1994) 179 CLR 500, that evidence of mental illness is relevant to the question of specific intent. This was a further error under section 21B of the Act, which requires a judge sitting without a jury to set out the principles of law applied and the findings of fact relied upon, whether or not those matters were in dispute.

Orders Made

  • The appeal is upheld
  • The determination made by Judge McGuire is quashed
  • Subject to any determination made by the Mental Health Review Tribunal, there is to be a fresh special hearing of the charge against the appellant
  • In the event that the appellant is held to be fit to be tried, there is to be a trial of the charge against him

Key Takeaways

  • Under section 21A of the Mental Health (Criminal Procedure) Act 1990, a judge's obligation is not merely to confirm that an accused received legal advice before electing to proceed without a jury. The judge must be satisfied that the legal adviser was themselves satisfied the accused properly understood the nature and effect of that election.
  • Where psychiatric material raises concern about an accused's competence to make an election under section 21A, the judge must make active inquiries of legal representatives as to whether any assessment of that specific competence has been obtained.
  • A failure to comply with section 21A is not a mere procedural irregularity. The Court of Criminal Appeal treated it as an error of fundamental importance going to the accused's entitlement to a jury, making an order under section 7(4) of the Criminal Appeal Act 1912 inappropriate.
  • Evidence of mental illness is relevant not only to a formal mental illness defence but also to the question of whether an accused had the specific intent required for the offence charged, as confirmed by the High Court in Hawkins v The Queen.
  • Section 21B requires a judge conducting a special hearing without a jury to formally record all necessary findings of fact and identify all principles of law applied, even where the underlying facts are not in dispute.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), particularly sections 9, 10, 21, 21A, 21B
- Criminal Appeal Act 1912 (NSW), section 7(4)
- Criminal Procedure Act 1986 (NSW)
- Mental Health Act 1990 (NSW)
- Evidence Act 1995 (NSW), section 190(2)(b)

Cases:
- Hawkins v The Queen (1994) 179 CLR 500
- Fleming v The Queen (1998) 197 CLR 250
- Regina v Zvonaric (2001) 54 NSWLR 1
- Regina v Mifsud, CCA, unreported, 8 November 1995
- Regina v Riddell [2003] NSWCCA 251
- Regina v Williams [2004] NSWCCA 224