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Court of Criminal Appeal 25 February 2005

REGINA v KNORR

[2005] NSWCCA 70

Public order & justice offences
CRIMINAL LAW UNFITNESS TO BE TRIED ADEQUACY OF JUDGE'S DIRECTIONS WHETHER NEW TRIAL SHOULD BE ORDERED PRACTICE AND PROCEDURE JURY DIRECTIONS

Citation: Regina v Knorr [2005] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 25 February 2005
Judge(s): Spigelman CJ; Wood CJ at CL; Barr J

Background

The appellant was found unfit to stand trial under the Mental Health (Criminal Procedure) Act 1990 following an incident in May 2002, in which she emerged from her home wielding a knife during a police welfare visit. A jury in a "special hearing" (a modified trial process available where an accused is unfit to be tried in the ordinary way) subsequently found that, on the limited evidence available, she had committed the offence of using an offensive weapon to prevent police from investigating a matter.

At the start of the special hearing, the trial judge explained most of the matters required by the Act, including the nature of the special hearing and the verdicts available. However, her Honour deferred any explanation of "the legal and practical consequences of those verdicts" to the summing-up at the close of evidence.

The appellant challenged the conviction on the sole ground that this deferral breached the mandatory requirements of the Act. The Crown conceded the point, and the Court of Criminal Appeal proceeded to determine both whether the verdict should be quashed and whether a retrial should be ordered.

  • Whether the trial judge's failure to explain the legal and practical consequences of available verdicts at the commencement of the special hearing breached s 21(4) of the Mental Health (Criminal Procedure) Act 1990
  • Whether that breach constituted a substantial miscarriage of justice requiring the verdict to be quashed
  • Whether the Court should exercise its discretion under s 8(1) of the Criminal Appeal Act 1912 to order a new trial

Decision

Section 21(4) of the Mental Health (Criminal Procedure) Act 1990 requires a trial judge to explain, at the commencement of a special hearing, five specific matters: the accused's unfitness, the meaning of unfitness, the purpose of the special hearing, the available verdicts, and the legal and practical consequences of those verdicts. The High Court in Subramaniam v The Queen (2004) had already confirmed that each of these elements must be genuinely explained, not merely touched upon, and that the explanations must be given at the outset rather than spread across the hearing or left to counsel.

In this case, the trial judge addressed four of the five requirements but deferred the explanation of legal and practical consequences to the summing-up. Following Subramaniam, the Court of Criminal Appeal held this was a material departure from an essential requirement going to the root of the special hearing. Such a departure constitutes a substantial miscarriage of justice in its own right, without any need to assess whether the failure actually affected the jury's verdict. The Court quashed the verdict accordingly.

The Court then turned to whether a retrial should be ordered under s 8(1) of the Criminal Appeal Act 1912. Several factors weighed against ordering a new trial: the trial judge had indicated a limiting term of three years, the appellant had already served half of that term, a non-parole period (if one could have been fixed) might realistically have been around eighteen months, and the appellant had not yet been referred to the Mental Health Review Tribunal, meaning further delay was inevitable. Taking those circumstances together, Spigelman CJ concluded that the discretion should be exercised against ordering a retrial.

Orders Made

  • Appeal allowed
  • Verdict quashed
  • No new trial ordered

Key Takeaways

  • Under s 21(4) of the Mental Health (Criminal Procedure) Act 1990, a judge presiding over a special hearing must explain all five prescribed matters, including the legal and practical consequences of available verdicts, at the commencement of the hearing, not incrementally over its course.
  • A material departure from any element of ss 21(2) to (4) goes to the root of the special hearing and constitutes a substantial miscarriage of justice, making it unnecessary to consider whether the error actually affected the jury's finding.
  • The Court of Criminal Appeal confirmed that Subramaniam v The Queen (HCA, 2004) sets the standard: piecemeal explanations, or explanations deferred to the summing-up, do not satisfy the mandatory statutory requirements.
  • In exercising its discretion under s 8(1) of the Criminal Appeal Act 1912, the Court declined to order a retrial where the appellant had already served a substantial portion of the indicated limiting term and further procedural delay was foreseeable due to non-referral to the Mental Health Review Tribunal.
  • Early release for an accused dealt with under the special hearing regime is a matter for the Mental Health Review Tribunal, not the sentencing court, a distinction the Court of Criminal Appeal treated as relevant to the retrial discretion.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW): ss 11(1), 19(1), 21(4), 22(1)(c), 24
- Criminal Appeal Act 1912 (NSW): s 8(1)

Cases:
- Subramaniam v The Queen [2004] HCA 21; (2004) 79 ALJR 116