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6
Court of Criminal Appeal 8 February 2019

Carter v R

[2019] NSWCCA 11

Assault & violenceTraffic & driving
CRIMINAL LAW CONVICTION APPEAL WOUNDING WITH ATTEMPT TO MURDER POLICE PURSUIT TRIAL BY JUDGE ALONE UNANIMOUS PSYCHIATRIC EVIDENCE

Citation: Carter v R [2019] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 8 February 2019
Judges: Payne JA at [1]; Schmidt J at [22]; Button J at [31]

Background

The applicant had been charged with wounding with intent to murder and a driving offence involving a police pursuit. The matter proceeded as a trial by judge alone. Both the prosecution and the defence agreed at first instance that special verdicts of not guilty on the ground of mental illness should be returned, and the psychiatric evidence on the question was unanimous.

Despite this agreement and the unanimous expert evidence, the trial judge returned verdicts of guilty on both counts. The applicant then sought leave to appeal against those convictions before the Court of Criminal Appeal.

The central controversy on appeal was whether the trial judge had adequately addressed the psychiatric evidence, particularly evidence about the applicant's demeanour in a recorded police interview, and whether the Court of Criminal Appeal could itself make a determination that the applicant was mentally ill at the time of the offending.

  • Whether the trial miscarried because the trial judge failed to adequately address, in the reasons for verdict, the unanimous psychiatric evidence concerning the applicant's mental state, including evidence about his demeanour in a recorded interview
  • Whether the Court of Criminal Appeal has power under s 7(4) of the Criminal Appeal Act 1912 (NSW) to itself determine that an appellant was mentally ill at the time of the relevant acts, and if so, the nature of that determination
  • Whether s 7(4) confers a "de novo" determination or a distinct appellate power to examine and act upon the evidence
  • What orders should flow from a finding of mental illness under s 7(4), including the appropriate explanation of the meaning and effect of special verdicts of not guilty on the ground of mental illness

Decision

The Court of Criminal Appeal held that the trial miscarried. The trial judge had failed to adequately address in the reasons for verdict the unanimous psychiatric evidence, including expert opinion about the applicant's demeanour during his recorded police interview. Given that all parties agreed special verdicts were appropriate and the expert evidence was uncontradicted, the convictions could not stand.

On the operation of s 7(4) of the Criminal Appeal Act 1912, the Court confirmed that this provision confers a discrete power on the Court to examine the evidence and act upon its own view of that evidence in appropriate cases. The power is not limited to situations where a new trial would otherwise be ordered under ss 6 and 8 of that Act. Payne JA differed from Button J on one point of characterisation: his Honour declined to describe the s 7(4) process as a "de novo determination", observing that the label lacks a firm or precise meaning and does not usefully describe the statutory power. Walsh J's reasoning in R v Jenkins (1963) was endorsed: the provision allows the Court to act where the evidence strongly supports a finding of mental illness, even where the jury's verdict would not be considered perverse by conventional standards.

Satisfied that the applicant was mentally ill at the time of the acts so as not to be responsible according to law, the Court quashed both convictions and entered special verdicts of not guilty on the ground of mental illness on each count. Button J, with whom the Court agreed on orders, took care to explain the meaning and effect of those verdicts. A special verdict of not guilty on the ground of mental illness is entirely different from an ordinary acquittal: it does not result in unconditional release. Instead, the applicant was committed to the care of the Mental Health Review Tribunal, which cannot order release unless affirmatively satisfied that the person does not pose a serious risk to others or to themselves. The Court noted that the applicant could potentially remain in detention for longer under these orders than he would have under the original convictions and sentences.

Orders Made

  • Leave to appeal against conviction granted
  • Appeals against conviction allowed
  • Conviction for wounding with intent to murder quashed
  • Conviction for the driving offence involving a police pursuit quashed
  • On each count, a special verdict of not guilty on the grounds of mental illness entered
  • Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the applicant to be detained in such place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law
  • The Registrar to notify the Minister for Health, the Mental Health Review Tribunal, and Justice Health of the terms of the judgment and orders, and to provide specified documentation to those bodies

Key Takeaways

  • Section 7(4) of the Criminal Appeal Act 1912 (NSW) confers a discrete and independent power on the Court of Criminal Appeal to examine evidence and make a finding of mental illness, separate from the power to order a new trial under ss 6 and 8 of that Act.
  • Describing the s 7(4) process as a "de novo determination" is unhelpful and was rejected by Payne JA, given the term lacks a settled and precise legal meaning in this context.
  • A trial by judge alone will miscarry where the reasons for verdict fail to adequately engage with unanimous, uncontradicted psychiatric evidence that was directly relevant to the sole contested issue.
  • Special verdicts of not guilty on the ground of mental illness carry a fundamentally different consequence from ordinary acquittals: the person is committed to the Mental Health Review Tribunal and cannot be released unless the Tribunal is affirmatively satisfied they pose no serious risk to others or themselves.
  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990, detention following a special verdict may, in practice, exceed the period of custody that would have resulted from the original conviction and sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 7(4)
- Criminal Appeal (Mental Illness) Amendment Act 1986 (NSW)
- Crimes Legislation Amendment Act 2004 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39(1)
- Mental Health Act 1983 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20
- R v Porter [1933] HCA 1; (1933) 55 CLR 182
- Stapleton v R [1952] HCA 56; (1952) 86 CLR 358
- R v M'Naghten (1843) 10 Cl & Fin 200; 8 ER 718
- Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- JM v R (2014) NSWCCA 297
- R v Derbin [2000] NSWCCA 361
- R v Hilder (1997) 97 A Crim R 70
- R v Fang (No 4) [2017] NSWSC 323
- Stockton v R (1981) 3 A Crim R 384