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Court of Criminal Appeal 11 April 2022

RE v R

[2022] NSWCCA 73

Sexual offences
CRIMINAL PROCEDURE FITNESS TO BE TRIED

Citation: RE v R [2022] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 11 April 2022
Judges: Macfarlan JA; Bellew J; Wright J

Background

The applicant, a former school teacher, was convicted in February 2017 by a judge sitting alone in the District Court on 10 of 13 counts relating to sexual offending against a child and possession of child abuse material. He was sentenced to an aggregate term of 16 years' imprisonment with a non-parole period of 12 years.

During the pre-trial proceedings and at trial, the applicant's counsel raised concerns about whether the applicant was well enough to give instructions and whether he was fit to be tried. The trial judge, in an ex tempore judgment on 27 February 2017, refused an adjournment to allow a psychiatric assessment and effectively found there was no real and substantial concern about the applicant's fitness. The trial proceeded, and the applicant elected not to give evidence.

The applicant initially sought leave to appeal on the ground that the trial judge erred in his treatment of the fitness question. He subsequently added a second ground, contending that fresh psychiatric evidence demonstrated a miscarriage of justice arising from an unresolved question about his fitness to stand trial on 27 and 28 February 2017.

  • Whether the trial judge erred in finding no real and substantial concern about the applicant's fitness to be tried and in declining to conduct a formal inquiry under the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether fresh psychiatric evidence, not available at trial, established that there was at least a real and substantial, unresolved concern about the applicant's fitness to be tried on 27 and 28 February 2017
  • Whether that unresolved concern constituted a miscarriage of justice warranting the quashing of the applicant's convictions and sentence

Decision

The Crown conceded that Ground 2 (the fresh evidence ground) should be upheld, and the Court was satisfied that the concession was properly made. Because both parties agreed the fitness question had never been determined at trial, it was unnecessary to resolve whether the trial judge erred in his handling of the issue at first instance (Ground 1).

The Court applied the well-established principle, drawn from Eastman v The Queen and confirmed in subsequent Court of Criminal Appeal authorities, that where a fitness question is raised for the first time on appeal, the appellate court must set aside the conviction unless it is satisfied that the trial court could not reasonably have found the accused unfit. The same principle applies where the issue was raised but not determined at trial.

Three pieces of psychiatric evidence placed before the Court on appeal were central. Dr Andrew Ellis, a forensic psychiatrist, reported in February 2021 that there was evidence the applicant may have been unfit for trial in February 2017. A supplementary report in June 2021 maintained that view, with Dr Ellis adding that the applicant was likely suffering an exacerbation of an untreated underlying condition that affected his mood, concentration, and memory, and likely contributed to his decision not to give evidence. Dr Yvonne Skinner, retained by the Crown, concluded in February 2022 that it was likely the applicant was not fit to stand trial on 27 and 28 February 2017, particularly in his capacity to prepare a defence, give instructions, and give evidence.

This material, unavailable at trial, established at minimum a real and substantial concern about the applicant's fitness on the critical final days of trial. The Court concluded it could not find that no trial judge could reasonably have found the applicant unfit. A miscarriage of justice had therefore occurred, and the convictions and sentence were quashed.

Orders Made

  • Time for leave to appeal extended
  • Appeal allowed
  • Applicant's convictions and sentence quashed
  • Matter remitted to the District Court for retrial
  • Matter listed in the District Court on the next arraignment date occurring seven days after 30 March 2022

Key Takeaways

  • Where a question of an accused's fitness to stand trial is raised but not determined at trial, the appellate court must quash the conviction unless it can be affirmatively satisfied that no trial judge could reasonably have found the accused unfit, applying Eastman v The Queen (2000) 203 CLR 1.
  • A miscarriage of justice arises not only when fitness is raised for the first time on appeal, but also where the issue was raised at trial yet left unresolved, meaning no finding of fitness was actually made.
  • Fresh psychiatric evidence, even if obtained years after trial, can be sufficient to establish a real and substantial concern about fitness and trigger the obligation to quash convictions and remit for retrial.
  • The Court of Criminal Appeal confirmed that Ground 1 (alleged trial error) became unnecessary to determine once the fresh evidence ground was upheld, illustrating that appellate courts will address fitness issues through the miscarriage of justice pathway without requiring proof of identifiable error below.
  • Under s 10 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (as then in force), the threshold for requiring further inquiry into fitness is whether there is a real and substantial, or genuine, concern about the accused's ability to stand trial, not a concluded finding of unfitness.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 10(1), 10(2), 10(3)

Cases
- Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
- Hofer v R [2019] NSWCCA 244
- JM v R; R v JM [2017] NSWCCA 138
- R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
- R v Tier [2001] NSWCCA 53; 121 A Crim R 509