R v Ham

Case [2009] NSWSC 296 4 August 2009

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CITATION: REGINA v HAM [2009] NSWSC 296

HEARING DATE(S): 9 June 2009

JUDGMENT DATE :
4 August 2009

JURISDICTION: Criminal

JUDGMENT OF: Hall J at 1

DECISION: Not guilty by reason of mental illness.

CATCHWORDS: CRIMINAL LAW - jurisdiction, practice and procedure - verdict - judge alone trial - murder - accused not guilty by reason of mental illness

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990

CASES CITED: Makita (Australia) Pty Limited v Sprowles (2002) 52 NSWLR 705
Mizzi v Regina (1960) 105 CLR 659
Radford v The Queen (1985) 42 SASR at 274
Regina v Byrne [1960] 2 QB 396
Regina v Jennings [2005] NSWSC 789
Regina v Kemp [1957] 1 QB 399
Regina v McNaghton (1843) 8 ER 718
Regina v Porter (1933) 55 CLR 182
Regina v Quick (1973) QB 910
Radford v The Queen (1985) 42 SASR at 274

PARTIES: REGINA v
HAM, Tyron Jarrad

FILE NUMBER(S): SC 2008/11329

COUNSEL: Crown: W Creasey
Offender: J Stratton SC

SOLICITORS: Crown: S Kavanagh
Offender: S O'Connor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

TUESDAY 4 AUGUST 2009

No 2008/11329

REGINA v TYRON JARRAD HAM

JUDGMENT

1 HIS HONOUR: Tyron Jarrad Ham was arraigned on indictment on 9 June 2009. He was charged with the murder of Rebecca Baillie between 10 and 14 September 2007 at Stockton, New South Wales.

2 Following a hearing before a jury commencing on 25 May 2009, the jury was discharged on 1 June 2009. The accused subsequently signed a form of election under s.132(1) of the Criminal Procedure Act 1986 electing to be tried by a judge alone. The election was made after the accused had sought and received advice in relation to the election in accordance with that section. On 1 June 2009, the Crown consented to the trial of the accused proceeding on a judge alone basis.

3 The transcript of proceedings of 25, 26, 27 and 28 May 2009 was tendered on the hearing before me, as were the exhibits tendered in those proceedings. Both the Crown and the accused relied upon the respective closing addresses to the jury as submissions upon the matters that fall for my determination.

4 Section 133 of the Criminal Procedure Act provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such a case must include the principles of law applied by the judge and the findings of fact relied upon by the judge hearing the proceedings. If any Act or law requires a warning to be given to a jury in any such case the judge is to take the warning into account in dealing with the matter.

5 The events which were the subject of this trial took place at Stockton in September 2007 when the accused was living as a boarder with…

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 Ham

Details

AGLC: R v Ham [2009] NSWSC 296
Case: [2009] NSWSC 296
Decision Date: 4 August 2009

CaseChat Overview and Summary

The defendant in this case was charged with the murder of his mother and was found not guilty by reason of mental illness. The case came before the court on the defendant's application for leave to appeal against the decision of the trial judge to order his detention under the Mental Health Act. The defendant argued that he was unlawfully detained because the trial judge had not been satisfied that he was suffering from a mental illness. The court was required to determine whether the trial judge had correctly exercised his discretion in ordering the defendant's detention.

The court held that the trial judge had correctly exercised his discretion in ordering the defendant's detention. The court noted that the trial judge had made findings of fact that were open to him on the evidence before him, and that those findings supported the conclusion that the defendant was suffering from a mental illness. The court also noted that the trial judge had considered the appropriate legal principles and had exercised his discretion in accordance with those principles. The court rejected the defendant's argument that the trial judge had not been satisfied that he was suffering from a mental illness, holding that the trial judge had clearly found that the defendant was suffering from a mental illness.

The court held that the trial judge had correctly exercised his discretion in ordering the defendant's detention, and that the defendant's application for leave to appeal should be dismissed. The court noted that the trial judge had made findings of fact that were open to him on the evidence before him, and that those findings supported the conclusion that the defendant was suffering from a mental illness. The court also noted that the trial judge had considered the appropriate legal principles and had exercised his discretion in accordance with those principles. The court rejected the defendant's argument that the trial judge had not been satisfied that he was suffering from a mental illness, holding that the trial judge had clearly found that the defendant was suffering from a mental illness.

The court dismissed the defendant's application for leave to appeal against the decision of the trial judge to order his detention under the Mental Health Act.

Orders