R v Minani [2005] NSWCCA 226 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
23rd June 2005
JUDGMENT DATE:
8 July 2005
JUDGMENT OF:
Spigelman CJ at 1; Hunt AJA at 2; Howie J at 42
DECISION:
1 The appeal is upheld; 2 The determination made by Judge McGuire is quashed; 3 Subject to any determination made by the Mental Health Review Tribunal, there is to be a fresh special hearing against the appellant; 4 In the event that the appellant is held to be fit to be tried, there is to be a trial of the charge against him
CATCHWORDS:
Mental Health (Criminal Procedure) Act 1990 - accused not fit to be tried - special hearing of criminal charge - notice of election for special hearing to proceed before judge alone - judge to be satisfied that accused, before making election, sought and received advice in relation to that election from barrister or solicitor (s 21A) - person making election must understand what is involved in such an election - obligation on judge is to be satisfied that the barrister or solicitor was satisfied that the accused properly understood the nature of the election he was making - material in psychiatric reports on mental illness defence giving rise to some concern as to whether accused was fit to make the election - judge made no inquiries of solicitor giving advice as to whether any psychiatric assessment had been obtained of the accused's competence to make election - Section 21A not satisfied - not mere procedural irregularity, but error of such fundamental importance that order pursuant to s 7(4) of Criminal Appeal Act 1912 inappropriate - purpose of s 7(4) - relevance of evidence relating to mental illness to specific intent
Ms J Manuell, Ms L Goodchild (Appellant) Mr J Bennett SC (Crown)
SOLICITORS:
Catherine Hunter (Sydney) (Appellant) S Kavanagh (Public Prosecutions)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
03/11/0638
LOWER COURTJUDICIAL OFFICER:
McGuire DCJ
- -
2005/86
SPIGELMAN CJ HUNT AJA HOWIE Friday 8 July 2005
REGINA v MINANI
Headnote
The appellant was charged with wounding with intent to inflict grievous bodily harm. He was found unfit to be tried, and a special hearing pursuant to the Mental Health (Criminal Procedure) Act 1990 was directed. The appellant made an election in accordance with that Act for the special hearing to proceed…
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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AGLC
R v Minani [2005] NSWCCA 226
Case
[2005] NSWCCA 226
Decision Date
CaseChat Overview and Summary
The case of R v Minani involved a defendant who was deemed unfit to be tried under the Mental Health (Criminal Procedure) Act 1990. The dispute centred on whether the defendant had properly understood the implications of electing for a special hearing of the criminal charge to proceed before a judge alone. The case was heard in the Court of Criminal Appeal of Western Australia. The central legal issues the court needed to decide were whether the statutory requirement that the defendant seek advice from a barrister or solicitor prior to making the election had been properly satisfied and whether the judge had correctly ensured that the defendant understood the nature of the election.
The court found that the statutory provision, section 21A, required not only that the defendant seek advice but also that the adviser be satisfied that the defendant understood the nature of the election. In this case, the judge had not made any inquiries to the solicitor who gave advice, to ascertain whether a psychiatric assessment had been obtained to determine the defendant's competence to make the election. This omission was critical because the psychiatric reports raised concerns about the defendant's fitness to understand the election. The court held that this was not merely a procedural irregularity but an error of such fundamental importance that it rendered the entire process invalid. Consequently, the court concluded that the error was not the type that could be addressed under section 7(4) of the Criminal Appeal Act 1912, as it pertained to the relevance of evidence relating to mental illness and specific intent.
In light of the court's findings, the conviction was quashed, and the matter was remitted to the District Court for further proceedings. The court emphasized that the purpose of section 21A was to ensure that the defendant was fully aware of the consequences of making the election, and the failure to properly verify this understanding was of such fundamental importance that it necessitated the quashing of the conviction.