R v England - [2003] SASC 321

R v ENGLAND
[2003] SASC
Court of Criminal Appeal: Bleby, Besanko and Sulan JJ

BLEBY J. Where a defendant is convicted in the District Court of an offence to which s 23 of the Criminal Law (Sentencing) Act 1988 (“the Act”) applies, the Court may, if of the opinion that the powers under that section should be exercised in relation to the defendant, remand the defendant to appear for sentence before the Supreme Court: s 23(2). That is what happened in this case.
On 2 November 2001 the defendant was convicted after a trial by jury of five separate offences involving either indecent assault or rape. The offences occurred in November and December 1998. They were offences to which s 23 of the Act applied. He had previously been convicted of one offence of indecent assault and two offences of rape which occurred in September and October 1992. He was in custody between 5 October 1993 and 23 April 1998.
What happens after a defendant is remanded pursuant to s 23(2) of the Act is governed by subsections (3) to (12) of s 23:
“(3)   The Supreme Court may, in relation to-
(a)     a defendant convicted of an offence to which this section applies by the Court; or
(b) a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
(4)For the purposes of an inquiry under subsection (3), each medical practitioner-
(a)     must carry out an independent personal examination of the defendant; and
(b)     may have access to any evidence before the court by which the defendant was convicted; and
(c)        may obtain the assistance of a psychologist, social worker,    community corrections officer or any other person.
(5)    If-
(a)     each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b)     the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order.
(6)The Supreme Court may exercise its powers under subsection (5) in addition to, or instead of, imposing a sentence of imprisonment for the offence.
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8)A person detained in custody under this section will be detained-
(a)     if the defendant is under 18 years of age - in such institution (not being a prison) as the Minister for Family and Community Services from to time directs;
(b)     in any other case - in such institution…

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 R v England

Details

AGLC: R v England [2003] SASC 321
Case: [2003] SASC 321
Decision Date: 16 September 2003

CaseChat Overview and Summary

The case of R v England was brought before the Supreme Court of South Australia, where a Judge reserved certain questions for the Full Court to consider and determine under section 350(1) of the Criminal Law Consolidation Act 1935. The defendant in this case was convicted of multiple sexual offences committed in 1998 and had prior convictions for similar offences. The court directed two legally qualified medical practitioners, Dr Craig Raeside and Dr Nambiar, to inquire into the defendant’s mental condition and report whether he was incapable of controlling his sexual instincts. Both doctors reported that the defendant declined to speak with them, but neither provided a report on oath as required by the Sentencing Act.

The legal issues before the Full Court centred on the procedures outlined in section 23 of the Sentencing Act, particularly the requirement for medical practitioners to provide a report on oath and whether the court could hear other evidence or representations that might differ from the medical practitioners' opinions. The court was also required to determine if the normal rights of cross-examination should be denied when such evidence was presented.

The court examined the statutory framework and concluded that fairness required that any evidence or representations differing from the medical practitioners' opinions should be put to the practitioners, who could then confirm or adjust their opinions. The court found no statutory basis to deny the normal rights of cross-examination. It was held that the Full Court’s decision in R v Hodge was applicable and should be followed. Therefore, the court answered the referred questions in the affirmative, allowing for the consideration of differing evidence and upholding the right to cross-examine medical practitioners.

The Full Court ultimately answered the questions referred by the Judge as follows: (1) In the case of Dr Raeside, the answer was "Yes"; in the case of Dr Nambiar, the answer was "Unable to answer". The second question did not arise, and the third question was answered "Yes".

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BLEBY J SULAN J

However, the Court may hear other evidence or representations: subsection (5)(b). Fairness demands that where they differ from the opinions of the medical practitioners, that evidence and those representations be put to the medical practitioners who then may or may not confirm their opinions. There is nothing in s 23 to suggest that normal rights of cross-examination should be denied. I see no reason to dissent in any way from what the Full Court decided in R v Hodge (1987) 48 SASR 91 in respect of analogous legislation. I would answer question (3) “Yes”. Conclusion For these reasons I would answer the questions referred as follows:(1) In the case of Dr Raeside, Yes; in the case of Dr Nambiar, Unable to answer.(2)This question does not arise.(3)Yes. BESANKO J: A Judge of this Court has reserved certain questions for the consideration and determination of the Full Court pursuant to s 350(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The facts which are relevant to the reference are set out in the Case Stated and are as follows:“1.On 2 November 2001 the defendant was convicted by verdicts of a jury after a trial before Judge Bishop in the District Court of five separate incidents of sexual offending in November and December 1998. He was convicted of:(i) Burglary/Indecent Assault(ii) Burglary/Rape (x2)(iii) Burglary/Rape(iv) Burglary/Rape(v) Break and Enter/Indecent Assault (x2)These are hereinafter referred to as the 1998 offences.2.The defendant had previously been convicted of and sentenced for the following sexual offences:(i) Indecent Assault on 13 September 1992(ii) Rape (x2) on 15 October 1992He was in custody between 5 October 1993 and 23 April 1998.3.On 24 July 2002, Judge Bishop granted the application of the Director of Public Prosecutions for the defendant to be remanded to appear for sentence for the 1998 offences before the Supreme Court pursuant to s 23(2) Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).4.On 14 August 2002, I directed, pursuant to section 23(3) of the Sentencing Act, that two legally qualified medical practitioners namely Dr Craig Raeside and Dr N Nambiar, inquire into the defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling his sexual instincts.5.By a written report dated 18 November 2002, Dr Craig Raeside reported that the defendant declined to speak to him in circumstances described in his report. A copy of his report is annexed hereto and marked ‘A’.6.By a written report dated 23 April 2003, Dr N Nambiar reported that the defendant declined to speak to him when he attended Yatala Labour Prison on 12 December 2002 and then again on 3 April 2003. A copy of his report is annexed hereto and marked ‘B’.7.I have not yet received a report on oath from either Dr Raeside or Dr Nambiar in accordance with the requirements of section 23(5) of the Sentencing Act and have not yet heard any submissions as to the sentence that should be imposed on the defendant.”

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J, SULAN J

Full text does not contain this section.