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5
Court of Criminal Appeal 20 September 2005

Regina v R T I

[2005] NSWCCA 337

Also reported as 158 A Crim R 172
Sexual offences
CHARGES OF SEXUAL OFFENCES NO ENQUIRY INTO THIS JUDGE'S DETERMINATIONS QUASHED CUMULATION WHERE MULTIPLE OFFENCES LEGISLATIVE ATTENTION DESERVED.

Citation: Regina v R T I [2005] NSWCCA 337
Court: New South Wales Court of Criminal Appeal
Date: 20 September 2005
Judge(s): Giles JA; Hislop J; Smart AJ

Background

The appellant was found unfit to be tried and, following a determination by the Mental Health Review Tribunal that he was unlikely to become fit within twelve months, the Attorney General directed that special hearings be conducted under the Mental Health (Criminal Procedure) Act 1990. Two special hearings were held in the District Court before Finnane DCJ in May and June 2004, covering ten counts of sexual assault and related offences alleged against two complainants over a period spanning the early 1980s to 1987.

Rather than having the matters determined by a jury (the default position under the Act), the appellant elected for determination by a judge alone. On 30 July 2004, the judge determined that the appellant had committed all charged offences. On 15 October 2004, the judge nominated limiting terms, being the periods of imprisonment he would have imposed had the hearings been ordinary trials, with some terms running cumulatively for a total of eleven years.

The appellant appealed against the determinations (equivalent to convictions) and sought leave to appeal against the limiting terms (equivalent to sentence). The Crown ultimately conceded the central ground of appeal.

  • Whether the two special hearings miscarried because the judge failed to make the enquiry required by section 21A of the Act before accepting the appellant's election to proceed judge alone, specifically whether the judge was satisfied that the appellant had received advice from a barrister or solicitor and properly understood the nature of the election.
  • Whether the determinations on counts 1 and 2 (sexual intercourse without consent with a person under 16, in 1982) were unreasonable or inconsistent with the evidence, having regard to uncertainty about the complainant's age at the time of the alleged offences.
  • Whether the judge in the second special hearing effectively reversed the onus of proof by directing that suggestions the complainant had lied required careful scrutiny.
  • Whether the judge improperly used relationship evidence as evidence of guilt in the second special hearing.
  • Whether the judge took into account material from the complainant's statement and record of interview that had not been admitted in evidence.
  • Whether the Act's provisions for nominating limiting terms are capable of accommodating cumulative sentences when multiple offences are involved, given the statutory restriction on commencement dates.

Decision

Ground 4A: Failure to enquire into the election

The Court identified this as the dispositive ground. Section 21A of the Act provides that a judge-alone determination is available only if the judge is satisfied that the accused, before electing, sought and received advice from a barrister or solicitor. Following the Court's earlier decision in R v Minami [2005] NSWCCA 226, the judge was required to make an active enquiry into whether the appellant's legal representative was satisfied the appellant properly understood the nature of the election. No such enquiry was made. The Crown conceded the point was indistinguishable from Minami, and the Court accepted that concession as correctly made.

Evidence as to the complainant's age (counts 1 and 2)

Although the determinations were being quashed on other grounds, the Court considered whether counts 1 and 2 could be re-litigated at new special hearings. The charges required proof that the complainant was under 16 at the time of the alleged offences in 1982. The Court found the evidence as to her age, while not conclusive, was sufficient to make it open to a fact-finder to be satisfied beyond reasonable doubt. The determinations on those counts were therefore not set aside on the basis of unreasonableness, leaving them available for determination at the new hearings.

Remaining appeal grounds

Because the determinations were quashed on the election ground, the Court did not need to resolve the remaining grounds concerning the onus of proof, relationship evidence, and inadmissible material. Those matters would be relevant, if at all, to how the new special hearings were conducted.

Limiting terms and cumulation

The Court noted a significant legislative difficulty. Under section 23(4) and (5) of the Act, a limiting term may be backdated to account for periods already served, but cannot be set to commence after the date of its nomination. Where multiple offences call for cumulative sentences, this creates an irresolvable conflict: properly cumulated limiting terms would necessarily commence after the date of nomination, which the Act does not authorise. The Court observed that this appears to be an unintended defect in the legislation and noted that the issue deserved legislative attention. Because the determinations were quashed, the limiting terms fell away in any event.

Orders Made

  • The determinations that the appellant committed the charged offences are quashed.
  • New special hearings are to be conducted.

Key Takeaways

  • Under section 21A of the Mental Health (Criminal Procedure) Act 1990, a judge conducting a special hearing must actively enquire whether the accused's legal representative is satisfied the accused properly understood the nature of a judge-alone election before accepting that election. Failure to make this enquiry is a miscarriage that invalidates any subsequent determination.
  • The Court of Criminal Appeal confirmed, applying R v Minami, that the enquiry requirement in section 21A is not a mere formality: it is a precondition to the judge's jurisdiction to proceed judge alone.
  • Evidence of a complainant's age sufficient to permit a fact-finder to be satisfied beyond reasonable doubt will survive a challenge that the determination was unreasonable, even where the evidence is not wholly uncontested.
  • A defect exists in the Act's framework for nominating limiting terms where multiple offences are involved: section 23(5) prohibits a limiting term from commencing after the date of its nomination, which makes it practically impossible to impose properly cumulative limiting terms in the ordinary sentencing sense. The Court described this as deserving of legislative attention.
  • Smart AJ, in a brief observation not binding on future courts, noted the potential disproportionality of extensive litigation focused on whether a complainant was just under or just over 16 at the time of an alleged offence, given that the primary issue was consent rather than age.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21A, 23
- Crimes Act 1900 (NSW), ss 61C, 61D, 61E(2), 81 (all since repealed)
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- R v Minami [2005] NSWCCA 226
- R v AN [2005] NSWCCA 239
- R v RTI (2003) 58 NSWLR 438
- Jones v The Queen (1989) 166 CLR 409
- R v Birlut (1995) 39 NSWLR 1
- R v Kurtic (CCA, 16 February, unreported)
- R v Mifsud (CCA, 8 November 1995, unreported)