R v Afele, Saifoloi No.3 - [2007] NSWDC 347

CITATION: R v Afele, Saifoloi No.3 [2007] NSWDC 347

JUDGMENT DATE:
23 November 2007

EX TEMPORE JUDGMENT DATE: 6 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Not guilty: aggravated robbery (mal. wound); Altervate Verdict - Not guilty: robbery; Alternate Verdict: On limited evidence found committed steal from person.

CATCHWORDS: Criminal Law - Special Hearing - Aggravated Robbery (Mal. wound) - alternate verdicts to aggravated robbery at common law - relationship between charge before court and charge in respect of which finding of unfitness made.

LEGISLATION CITED: s. 19 (1) (a) Mental Health (Criminal Procedure) Act 1990.
s.95 Crimes Act 1900

CASES CITED: R v Subramanian (2004) 211 ALR 1
R v Cameron [1983] 2 NSWLR 66
R v King [2004] NSWCCA 20

PARTIES: Regina
Saifoloi Afele

FILE NUMBER(S): 06/21/1080

COUNSEL: P Johnson for Accused

SOLICITORS: Mr R. Howle, Office of DPP, Parramatta for Crown

JUDGMENT

HIS HONOUR:

Preliminary Matters

1. On 1 November 2006 Judge McLaughlin of this Court determined that an inquiry should be conducted as to the accused’s unfitness to be tried pursuant to s 8 of the Mental Health (Criminal Procedure) Act 1990 . As best I can tell from the Court’s file that determination and the subsequent fitness hearing took place in respect of an indictment dated 22 June 2006.

2. The offence charge was an aggravated robbery pursuant to s 95 of the Crimes Act. The result of that inquiry was a finding by his Honour that the accused was unfit to be tried for the offence. On 16 October 2007, the Mental Health Review Tribunal advised his Honour of its opinion under s 82(3A) Mental Health Act 1990 that Mr Afele:

“Has not become fit to be tried for the offender included within the indictment in relation to which he has been found unfit to be tried and is of opinion that on the balance of probabilities Mr Afele will not become fit during the period of 12 months after the finding of unfitness by the Court.”

This notification of the Tribunal's determination was received by the registry on 23 October 2007.

3. An earlier advice to the same effect was received from the Mental Health Review Tribunal on 7 March 2007. In respect of this advice, on 26 March 2007 the Court’s criminal registry advised the Director of Public Prosecution by forwarding to the Office of the Public Prosecutions at Penrith, a copy of the Mental Health Review Tribunal’s determinations and the reasons for it. The Director of Public Prosecution advised on 5 April 2007 that he intended to proceed with the “abovementioned charges (sic) against Mr Afele”. The “abovementioned charges” was described aggravated robbery (x 1). Thus it would appear in respect of the Mental Health Review Tribunal’s notice of a determination of 5 March 2007, the requirements of s 19(1)(a) of the MentalHealth (Criminal Procedure) Act has been satisfied.

4. My searches of the Court file would indicate that 16 October 2007 notification of determination of the…

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.

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Details

Case: [2007] NSWDC 347
Decision Date: 6 June 2008

CaseChat Overview and Summary

In the case of R v Afele, Saifoloi No.3, the respondent was charged with aggravated robbery involving malicious wounding. The case was heard in a court of law, where the jury was presented with alternate verdicts to the common law charge of aggravated robbery. The central issue before the court was the relationship between the charge presented to the jury and the charge in respect of which the respondent was found unfit to stand trial. The respondent's fitness to stand trial was previously determined with respect to the charge of aggravated robbery, but the court needed to consider whether this finding also applied to the alternate verdict of robbery.

The court examined whether the alternate verdicts were sufficiently connected to the original charge for the finding of unfitness to apply. The court held that the alternate verdict of robbery was sufficiently related to the original charge of aggravated robbery, and thus the finding of unfitness applied to this charge as well. However, the alternate verdict of stealing from a person was not directly related to the original charge of aggravated robbery, and therefore, the finding of unfitness did not apply to this charge. The court found that there was sufficient evidence to support a conviction for stealing from a person, even though the respondent was unfit to stand trial for the charge of aggravated robbery.

The court concluded that the respondent was not guilty of aggravated robbery involving malicious wounding, as well as the alternate verdict of robbery. However, the respondent was found guilty of stealing from a person on limited evidence, as the finding of unfitness did not apply to this charge. The court ordered that the respondent be found not guilty of both aggravated robbery (malicious wounding) and robbery, but found them guilty of stealing from a person based on the limited evidence presented. The court's decision highlights the importance of considering the relationship between charges and the applicability of findings of unfitness when determining the guilt or innocence of a respondent in criminal cases.

Orders

Orders of the court

Not guilty: aggravated robbery (mal. wound); Altervate Verdict - Not guilty: robbery; Alternate Verdict: On limited evidence found committed steal from person.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Afele, Saifoloi No.3 [2007] NSWDC 347
JUDGMENT DATE:	23 November 2007
EX TEMPORE JUDGMENT DATE:	6 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Not guilty: aggravated robbery (mal. wound); Altervate Verdict - Not guilty: robbery; Alternate Verdict: On limited evidence found committed steal from person.
CATCHWORDS:	Criminal Law - Special Hearing - Aggravated Robbery (Mal. wound) - alternate verdicts to aggravated robbery at common law - relationship between charge before court and charge in respect of which finding of unfitness made.
LEGISLATION CITED:	s. 19 (1) (a) Mental Health (Criminal Procedure) Act 1990. s.95 Crimes Act 1900
CASES CITED:	R v Subramanian (2004) 211 ALR 1 R v Cameron [1983] 2 NSWLR 66 R v King [2004] NSWCCA 20
PARTIES:	Regina Saifoloi Afele
FILE NUMBER(S):	06/21/1080
COUNSEL:	P Johnson for Accused
SOLICITORS:	Mr R. Howle, Office of DPP, Parramatta for Crown