Citation: R v Afele, Saifoloi No.3 [2007] NSWDC 347
Court: District Court of New South Wales
Date: 23 November 2007
Judge(s): Nicholson SC DCJ
Background
The accused was charged with aggravated robbery under s 95 of the Crimes Act 1900, arising from an incident on 16 December 2005 at St Marys. The allegation was that he robbed the complainant of a wallet containing cash and, in the course of doing so, maliciously inflicted actual bodily harm upon him.
Following a fitness inquiry, the accused was found unfit to be tried. The Mental Health Review Tribunal subsequently advised, on two separate occasions, that the accused had not become fit and was unlikely to become fit within the following 12 months. These opinions triggered the statutory process for a special hearing.
A special hearing under the Mental Health (Criminal Procedure) Act 1990 is a hearing conducted as closely as possible to a criminal trial, but in which the court determines whether, on the limited evidence available, the accused committed the offence or an available alternative. It results in a finding rather than a conventional verdict of guilt, and the accused cannot be convicted and sentenced in the ordinary way.
Legal Issues
- Whether procedural irregularities in notifying the Director of Public Prosecutions of the Tribunal's second determination under s 19(1)(a) of the Mental Health (Criminal Procedure) Act 1990 affected the validity of the special hearing.
- Whether the charge before the court at the special hearing was the same offence in respect of which the finding of unfitness had been made.
- Whether the Crown had proved beyond reasonable doubt, on the limited evidence available, that the accused committed aggravated robbery, or the lesser alternatives of robbery or stealing from the person.
- What alternate verdicts were available at common law and under statute in the context of a charge of aggravated robbery.
Decision
On the procedural question, the court was satisfied that the special hearing could proceed despite the registry's failure to forward the Tribunal's second (October 2007) notification to the Director of Public Prosecutions. The special hearing had been scheduled as a consequence of compliance with s 19(1)(a) following the earlier March 2007 notification, in respect of which the Director had confirmed an intention to proceed. The absence of compliance in relation to the later notification did not vitiate the proceedings.
The court was also satisfied that the indictment before it at the special hearing, though dated October 2007 and signed by a different prosecutor, charged the same offence as the original indictment. This confirmed that the charge was one in respect of which the accused had been found unfit to be tried, satisfying the jurisdictional requirement.
On the substantive question, the court found that the Crown had not proved beyond reasonable doubt that the robbery and the assault were contemporaneous, which is a necessary element of aggravated robbery. The evidence raised a reasonable possibility that the theft of the wallet was an afterthought, occurring after the assault rather than as part of a single transaction accompanied by the use of violence. The court therefore returned a not guilty finding on both the aggravated robbery charge and the lesser alternative of robbery.
However, the court was satisfied beyond reasonable doubt, on the limited evidence available, that the accused stole the wallet from the complainant's person. Police found the wallet in the accused's pocket when he was searched at the scene, and the court rejected his account that it was not his. A finding was accordingly made that, on the limited evidence, the accused committed the offence of stealing from the person.
Orders Made
- Not guilty: aggravated robbery (with malicious wounding as the circumstance of aggravation)
- Not guilty: robbery (alternate verdict)
- Finding that, on the limited evidence available, the accused committed the offence of stealing from the person (further alternate verdict)
Key Takeaways
- A special hearing under the Mental Health (Criminal Procedure) Act 1990 proceeds as closely as possible to a criminal trial, with the Crown bearing the onus of proving the offence beyond reasonable doubt on the limited evidence available.
- The District Court held that a procedural failure by the registry to forward one of two Tribunal notifications to the Director of Public Prosecutions did not invalidate the special hearing, where the earlier notification had been properly transmitted and acted upon.
- For a charge of aggravated robbery to be established, the threat or use of violence and the taking of property must coincide; evidence raising a reasonable possibility that the assault and the theft were separate events is sufficient to prevent proof of the charge beyond reasonable doubt.
- Where the principal charge and the first statutory alternative are not proved, the court may return a finding on a further available alternative, such as stealing from the person, provided all elements of that lesser offence are established on the limited evidence.
- Under s 19(1)(a), the charge at the special hearing must be the same offence in respect of which the finding of unfitness was made; a reformulated indictment does not displace jurisdiction if the substance of the charge remains the same.
Legislation and Cases Referenced
Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 8, 19(1)(a), 19(2), 21A, 22(1), 82(3A)
- Crimes Act 1900 (NSW), s 95
Cases
- R v Subramanian (2004) 211 ALR 1
- R v Cameron [1983] 2 NSWLR 66
- R v King [2004] NSWCCA 20