Citation: Peterson v Regina [2007] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 2 August 2007
Judges: Mason P; Kirby J; Latham J
Background
In 1997, the applicant was tried before a judge alone in the District Court on a charge of wounding with intent to murder, arising from a violent attack on an elderly man at a railway station in 1996. The applicant's legal representatives raised a defence of mental illness. Three psychiatrists gave evidence that the applicant was mentally ill at the time of the offence, and the trial judge accepted that evidence without reservation, describing it as a "very, very plain case."
The trial judge found the applicant not guilty on the grounds of mental illness and, as required by statute, ordered that he be detained in strict custody until released by due process of law.
In August 2006, nearly a decade after the trial, the applicant filed proceedings in the Court of Criminal Appeal seeking an extension of time to appeal. He represented himself and raised complaints about his legal representation and the conduct of the trial.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear an appeal brought by a person acquitted on the grounds of mental illness, where the defence of mental illness was raised by the accused himself.
- Whether the deeming provision in s 5(2) of the Criminal Appeal Act 1912 applied to treat the applicant as a "convicted person" for the purposes of the appeal.
Decision
The Court of Criminal Appeal held that it had no jurisdiction to entertain the application. Section 5 of the Criminal Appeal Act 1912 confers rights of appeal against conviction on indictment and, with leave, against sentence imposed upon conviction. Because the applicant was acquitted, not convicted, the general right of appeal did not arise.
Section 5(2) creates a specific deeming provision: a person acquitted on the grounds of mental illness is treated as a convicted person only where mental illness was not set up as a defence by that person. Here, the defence of mental illness was plainly raised by the applicant through his legal representatives, and was the central and successful basis of the trial. The deeming provision therefore did not apply, and the applicant remained a person acquitted rather than convicted.
The appeal against the detention order was similarly incompetent. That order was made pursuant to the mandatory requirements of the Mental Health (Criminal Procedure) Act 1990, leaving no available avenue of challenge in any event. The Court unanimously refused the application for an extension of time.
Orders Made
- The application for an extension of time to appeal was refused.
Key Takeaways
- Under s 5 of the Criminal Appeal Act 1912, a right of appeal lies against a conviction, not against an acquittal. A person found not guilty on the grounds of mental illness is an acquitted person, not a convicted person.
- The deeming provision in s 5(2) of the Act, which treats a mental illness acquittee as a convicted person for appeal purposes, applies only where mental illness was not set up as a defence by the accused. Where the defence was raised by or on behalf of the accused, the deeming provision has no operation.
- In dismissing the application, the Court of Criminal Appeal confirmed its earlier decisions in R v Foy (1922) and R v Greig (1996), which established this jurisdictional limitation.
- A detention order made pursuant to the mandatory provisions of the Mental Health (Criminal Procedure) Act 1990 following a mental illness acquittal cannot be challenged by way of a sentence appeal under the Criminal Appeal Act 1912.
- The question of jurisdiction was determined on the face of the statutory framework, independently of the merits of the applicant's factual complaints about his trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 39
Cases:
- R v Foy (1922) 39 WN (NSW) 20
- R v Greig (1996) 89 A Crim R 254