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Court of Criminal Appeal 14 December 2012

CJ v Regina

[2012] NSWCCA 258

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE IN JUDGE

Citation: CJ v Regina [2012] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judges: Beazley JA, Hall J, S Campbell J

Background

The appellant was employed as a "housemother" at a boys' primary school in Moss Vale. Following a judge-alone trial in the District Court, she was convicted of 21 charges under the Crimes Act 1900, comprising multiple counts of sexual intercourse with children aged between 10 and 14 years and acts of indecency with children under 16, all in circumstances of aggravation arising from her position of authority over the complainants.

The appellant was sentenced to a total effective term of 8 years imprisonment with a non-parole period of 5 years. The central issue at trial was not whether the relevant conduct occurred, but whether the appellant had established the defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990.

The trial judge rejected the mental illness defence and entered convictions. The appellant filed a Notice of Intention to Appeal, which lapsed, and subsequently applied for an extension of time. The Crown did not oppose that application, and the appeal proceeded on the basis that the extension was granted.

  • Whether the trial judge failed to consider and evaluate the expert evidence adduced by the defence, in particular the evidence of the appellant's forensic psychiatrist, on the question of the appellant's capacity to appreciate the wrongfulness of her actions.
  • Whether the trial judge erred by accepting the Crown's expert evidence without analysing and reconciling conflicting expert opinion evidence called in the defence case.
  • Whether the trial judge was obliged to provide reasons for preferring one expert witness over another.
  • Whether those errors, if established, constituted appellable error requiring a retrial.

Decision

The appeal turned squarely on the trial judge's treatment of the competing expert medical evidence. The defence called a consultant forensic psychiatrist whose evidence was directly relevant to whether the appellant, at the time of the offences, had the capacity to appreciate the wrongfulness of her acts. The trial judge's findings of fact, which were central to the rejection of the mental illness defence, did not engage with that evidence.

Hall J found that the trial judge accepted the Crown's expert evidence without undertaking any analysis or evaluation of the conflicting opinion evidence from the defence. A trial judge determining a mental illness defence is required to analyse all relevant expert opinion evidence and to identify, with reasons, the basis for preferring one expert over another. That obligation was not discharged here.

The Court also identified that a proper understanding of the medical evidence was critical to several subsidiary questions within the mental illness defence: whether the appellant's apparent awareness of legal wrongness also amounted to knowledge that her acts were wrong according to ordinary moral standards, and whether, during manic phases of her disorder, she retained the capacity to reason with a degree of calmness about the moral quality of her conduct. These questions, drawn from authorities including Sodeman v The King and Stapleton v The Queen, required full engagement with all the medical evidence. That engagement was absent.

The Crown fairly conceded that appellable error had been established by reason of the trial judge's omission to evaluate the totality of the relevant medical evidence. All three judges agreed that the convictions could not stand and that a retrial was the appropriate remedy.

Orders Made

  • Extension of time for the appellant's notice of intention to appeal granted (extended to 19 December 2011).
  • Appeal allowed.
  • Convictions quashed.
  • Matter remitted to the District Court for retrial.

Key Takeaways

  • A trial judge determining the defence of mental illness in a judge-alone trial must analyse all relevant expert opinion evidence, including conflicting evidence called by the defence, and provide reasons for preferring one expert over another. Accepting one side's expert without engaging with the other side's evidence constitutes appellable error.
  • Under the M'Naghten-derived test applied in NSW, determining whether a defendant knew that an act was "wrong" requires careful consideration of both legal wrongness and moral wrongness according to the standards of reasonable persons. These are distinct questions that demand proper engagement with the psychiatric evidence.
  • The distinction between a defendant's retrospective statements about their state of mind and contemporaneous awareness at the time of the offending is a material consideration when evaluating expert evidence in mental illness defence cases.
  • Where the Crown concedes that a failure to evaluate the totality of medical evidence amounts to appellable error, the Court of Criminal Appeal will quash the convictions and remit the matter for retrial rather than substitute its own finding on the mental illness defence.
  • Procedural slips in orders pronounced by the Court of Criminal Appeal, such as omitting to formally record a granted extension of time, can be corrected under s 12(1) of the Criminal Appeal Act 1912 and rule 36.17 of the Uniform Civil Procedure Rules 2005.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61O(1), 66C(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
- Criminal Appeal Act 1912 (NSW), s 12(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases
- R v M'Naghten (1843) 8 ER 718
- R v Porter [1933] HCA 1; 55 CLR 182
- Sodeman v The King (1936) 55 CLR 192
- Stapleton v The Queen [1952] HCA 56; 86 CLR 358
- Mizzi v R [1960] HCA 77; 105 CLR 659
- Willgoss v R (1960) 105 CLR 295
- Attorney-General for South Australia v Brown [1960] AC 432
- Beale v Government Insurance Office (1997) 48 NSWLR 430
- Cesan v The Queen [2008] HCA 52; 236 CLR 358
- Alchin v Daley [2009] NSWCA 418
- R v Pratt [2009] NSWSC 1108