Fang v R

Case [2018] NSWCCA 210 28 September 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Fang v R [2018] NSWCCA 210
Hearing dates: 16 July 2018
Decision date: 28 September 2018
Before: Beazley P;
R A Hulme J;
Button J
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords: CRIME – appeal – conviction – whether error in declining to leave defence of mental illness to the jury – whether failure to do so resulted in a substantial miscarriage of justice
Legislation Cited: Criminal Code (ACT), ss 27, 28
Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
Mental Health Act 2007 (NSW), s 3
Cases Cited: Bouchard-Lebrun v R [2011] 3 SCR 575; [2011] SCC 58
R v Ayoub [1984] 2 NSWLR 511
R v De Souza (1997) 41 NSWLR 656
R v Derbin [2000] NSWCCA 361
R v Doolan [2010] NSWSC 147
R v Falconer (1990) 171 CLR 30; [1990] HCA 49
R v Fang (No 4) [2017] NSWSC 323
R v Gibson [2016] VSC 634
R v Ham [2009] NSWSC 296
R v Konidaris [2014] VSC 89
R v M’Naghten (1843) 8 ER Rep 718
R v Martin (No 1) (2005) 159 A Crim R 314; [2005] VSC 518
R v Pahl [2017] ACTSC 68
R v Porter (1933) 55 CLR 182; [1933] HCA 1
R v S [1979] 2 NSWLR 1
R v Sebalj [2006] VSCA 106
R v Shields [1967] VR 706
R v Stones (1955) 56 SR(NSW) 25
R v Youssef (1990) 50 A Crim R 1
Radford v R (1985) 42 SASR 266
Woodbridge v R (2010) 208 A Crim R 503; [2010] NSWCCA 185.
Texts Cited: Howard and Westmore, Crime and Mental Health Law in New South Wales (2nd ed, 2010, LexisNexis)
Category: Principal judgment
Parties: Zhen Fang (Appellant)
Regina (Respondent)
Representation:
Counsel:
I Lloyd QC; Y C Lin (Appellant)
B Hatfield (Respondent)
Solicitors:
Andrew Scali Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/291301
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Criminal

Citation:

R v Fang (No 3) [2017] NSWSC 28

Date of Decision:

3 February 2017

Before:

Johnson J

File Number(s):

2014/291301

Headnote

[This headnote is not to be read as part of the judgment]

On the night of 6 September 2014 or during the early hours of 7 September 2014, Zhen Fang (the appellant) fatally stabbed his friend, Ting Huang, following an argument. During the course of the argument, the appellant alleged that Mr Huang had threatened to kill the appellant’s family. The appellant was charged with the murder of Mr Huang on 14 November 2016 after informing the police that he had killed Mr Huang and left his body near a cemetery in the boot of the victim’s car. The appellant was under the influence of alcohol and the drug methylamphetamine (Ice) at the time of the stabbing.

At trial, the appellant pleaded not guilty and raised the defences of mental illness and substantial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fang v R

Details

AGLC: Fang v R [2018] NSWCCA 210
Case: [2018] NSWCCA 210
Decision Date: 28 September 2018

CaseChat Overview and Summary

Fang was convicted of a serious crime and appealed against his conviction. The primary issue before the court was whether the trial judge had erred in declining to leave the defence of mental illness to the jury. The court was also required to determine whether this error resulted in a substantial miscarriage of justice. The court examined the evidence presented and the trial judge's directions to the jury regarding the defence of mental illness. It was noted that the trial judge had declined to leave the defence to the jury, instead directing them to find the defendant not guilty by reason of mental illness if they were satisfied that the defendant was suffering from a mental illness at the time of the offence.

The court found that the trial judge's decision not to leave the defence of mental illness to the jury was an error, as the defence should have been left to the jury to determine. However, the court also found that this error did not result in a substantial miscarriage of justice, as the evidence overwhelmingly supported the defendant's guilt and the jury would likely have found him not guilty by reason of mental illness regardless. The court held that the error did not affect the safety of the verdict and that the appeal should be dismissed. The court further found that there were no other grounds for allowing the appeal and that the conviction should be upheld.

Orders