R v Zhang

[2000] NSWCCA 344

CITATION:	R v Zhang [2000] NSWCCA 344
FILE NUMBER(S):	CCA 60091/99
HEARING DATE(S):	3 August 2000
JUDGMENT DATE:	31 August 2000
PARTIES :	Regina (Respondent) Ju Sheng Zhang (Appellant)
JUDGMENT OF:	Foster AJA at 1; Dunford J at 2; Greg James J at 34

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70058/97
LOWER COURT JUDICIAL OFFICER :	Dowd J

COUNSEL :	GP Craddock (Appellant) R Cogswell SC (Crown)
SOLICITORS:	TA Murphy (Appellant) SE O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW & PROCEDURE - mental health - fitness to be tried - issue raised in good faith - no alternative but to order inquiry - mis-trial
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990, ss 5 - 11A
CASES CITED:	Kesavarajah v The Queen (1994) 181 CLR 230 R v Presser [1958] VR 45 Eastman v The Queen [2000] HCA 29, 74 ALJR 915
DECISION:	See para 33.

IN THE COURT OF
CRIMINAL APPEAL

60091/99

FOSTER AJA
DUNFORD J
GREG JAMES J

Thursday, 31 AUGUST 2000

R v Ju Sheng ZHANG
HEADNOTE

The appellant was convicted of murder and other offences and appealed on the ground that the trial judge had erred in not conducting a fitness inquiry pursuant to the Mental Health (Criminal Procedure) Act 1990 ("the Act") .
Concern regarding the appellant's mental health was first raised by the Crown at a directions hearing, as a result of which the judge ordered a psychiatric examination and report. The appellant provided very little information to the psychiatrist. Upon tendering the psychiatric report the Crown Prosecutor stated that there was nothing before the Court to indicate that the accused was not fit to be tried.
The appellant insisted on appearing for himself at the trial. On the fourth day of the trial the Crown Prosecutor expressed concern regarding his fitness to stand trial, and the judge said he was satisfied that the issue of his fitness to be tried had been raised in good faith. Subsequently, the Crown Prosecutor purported to "withdraw" his earlier "application" and the trial continued.
Held: -
Once the issue of the appellant's fitness to be tried had been raised in good faith, it was not open to the Crown Prosecutor to "withdraw the application", and the trial judge had no alternative but to discharge the jury and order an inquiry to determine the appellant's fitness to be tried, as required by s 10 of the Act. His failure to do so resulted in a mis-trial. Eastman v The Queen [2000] HCA 29, 74 ALJR 915; R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230, distinguished. Mental Health (Criminal Procedure) Act 199, ss 5 - 11A .
Orders: -
1. Appeal allowed.
2. Convictions and sentences quashed.
3. New trial ordered.
4. Note that the question of the appellant's unfitness to be tried has been raised before his arraignment on the new trial and accordingly s 8, Mental Health (Criminal Procedure) Act 1990 applies.

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IN THE COURT OF
CRIMINAL APPEAL

60091/99

FOSTER AJA
DUNFORD J
GREG JAMES J

Thursday, 31 AUGUST 2000

R v Ju Sheng ZHANG
JUDGEMENT

1    FOSTER AJA: I agree with Dunford J. 2    DUNFORD J: This is an appeal by the appellant, Ju Sheng Zhang, against his conviction before Dowd J and a jury on one count of murder, one count of attempted murder, one count of use an offensive weapon with intent to prevent lawful apprehension and one count of malicious wounding, for all of which he was sentenced to effective terms of imprisonment totalling a minimum term of 19 years with an additional term of 5 years. 3    The Crown case was that the appellant was a tenant of premises at Fairfield of which the deceased, Guiseppe Arena, was the managing agent for the landlord. On 21 May 1997, the appellant attended the agency in order to pay his rent, which he did, and he then asked to speak to the deceased about his perceived difficulties with the replacement of locks consequent upon his advice to the agency that his premises had been broken into. A brief conversation followed which gave rise to an argument and the appellant produced a long bladed carving knife from a black bag he was carrying, whereupon the deceased ran into a rear office at the premises, chased by the appellant who was kicking at the door in order to gain entry. 4    In due course the appellant gained entry to the office area through a side door and charged at the deceased violently stabbing at him with the knife whilst two other employees, Stephen Jurinic and Fabio Lamalfa, attempted to disarm him and they were eventually able to get the appellant away from the deceased who was bleeding heavily. They assisted the deceased out of the office and down an alley way a short distance where he was subsequently treated by the ambulance crew. 5    The appellant remained in the office holding the knife whilst attempting to re-assure female staff that he would not harm them. When Mr Jurinic returned to the office the appellant, still wielding the knife, chased him out of the office and across the road. Meanwhile, a motorist observing the appellant's obvious intentions towards Mr Jurinic drove his car at the appellant and collided with him, causing him minimal injuries. The police arrived, but the appellant held them at bay with the knife, taunting them, saying, "come on, come on, dead man, dead man, so what I mean is shoot me to death I'm a dead man". Police eventually subdued the appellant but in the course of the struggle some of the officers including Senior Constable Russell were injured. 6    The appellant was interviewed by way of ERISP and offered an explanation for his actions, which explanation he expanded upon in his evidence. It was to the effect that his premises had been broken into at least twice and he did not consider that the agency had dealt with the problem adequately or appropriately. He also described at least two occasions when he had reported other unrelated incidents to police and police had not in his view responded in a manner which he considered appropriate. He said he knew his actions were wrong but he carried out his right to protect himself. 7    The only ground of appeal relied on was as follows:

The learned trial judge erred in not conducting a fitness inquiry. By reason of the failure to conduct a fitness inquiry the conviction is a miscarriage of justice.

8    The appellant was arrested on 21 May 1997 and remanded in custody where he has remained ever since. He was first seen by a lawyer when he appeared at the Local Court at Fairfield on 22 May 1997 and a solicitor with the Legal Aid Commission, took an application for legal aid from him. He also arranged for the appellant to be seen by Dr Bruce Westmore, a forensic psychiatrist, who saw him on 31 May 1997. 9    It appears from Dr Westmore's report of 3 June 1997 that the appellant was not co-operative in that interview and declined to discuss the case in any detail except to the extent of saying that he intended to plead guilty, and accordingly there was no need for the interview to proceed any further. He also indicated that he did not wish to have legal assistance but wished to speak to the judge himself. On the history obtained, Dr Westmore could not identify or exclude the presence or absence of mental illness, but said that although he did not appear to be depressed, there were other features of a bipolar affective disorder and suggested that he should be seen again by a psychiatrist when he was more amenable to such an assessment. 10    When the matter came back before the Local Court on 18 June 1997 the appellant informed the solicitor who was to appear for him that he wished to represent himself, and the proceedings were adjourned for a paper committal on 25 June 1997. He was not at any time thereafter represented by a lawyer until the hearing of the appeal. 11    He was committed for trial on 25 June 1997 and appeared in person at pre-trial mentions before Barr J on 2 February 1998, and on 20 April, 9 June and 16 July 1998 before Dowd J, the trial judge. 12    Concern relating to the appellant's mental health was first raised by the Crown at a directions hearing before Dowd J on 20 April 1998. After discussion, his Honour ordered a psychiatric report and requested that the accused undergo a psychiatric examination. He was therefore seen by Dr Andrew Walker on 5 June 1998. Once again the appellant provided very little information to the psychiatrist. He declined to give any answers as to whom he had killed or why, except that he had a good reason, and that he recognised that the offence that he had committed was regarded as wrong. He refused to give any detailed information concerning his personal history. Dr Walker reported that there was no evidence of cognitive defect and his short term memory was satisfactory, but that he refused further formal cognitive examination, that no psychiatric disorder was elicited and there was no evidence of brain dysfunction, although it was not impossible that he might be suffering from a psychiatric condition such as delusional (paranoid) disorder which it would be possible to conceal under interview conditions, and that he was able to judge right and wrong. 13    When the matter came on again on 9 June 1998 the Crown tendered the psychiatric report (the transcript notes the report being dated "15" June 1998 but that apparently should read "5" June 1998 according to Annexure "E" to Mr Barrow's affidavit). The appellant made some submissions about the report which was admitted into evidence. The Crown Prosecutor said that "it would seem, despite the limitations of the report, that there is nothing before this court to indicate that the accused is not fit to stand trial". 14    When the matter came on for trial on 20 July 1998, the appellant insisted on appearing for himself. He asserted that he had killed the deceased but that it was not "wrong" to do so. He said that because he knew that he did it and the matter had been fully explored in the Local Court it was not necessary that it be examined once more, and his Honour appeared unable to bring the appellant to an understanding that the Local Court was not a final procedure and that the jury had the responsibility to determine guilt. 15    He appeared not to understand the necessity for him to plead to the charges and asserted that he had no interest in what the witnesses would say, not so much because they were unlikely to be truthful or reliable, but because they were irrelevant to the procedure as he perceived it to be. Upon arraignment on the first (murder) count he said, "whether it is guilty or not guilty, the issue of the plea is not in existence. I have already stated yesterday, I only want to tell the court what I did and my attitude toward it." His Honour directed that a plea of not guilty be entered on behalf of the accused. A similar response occurred when arraigned on each of the remaining counts. 16    As the trial progressed the appellant began to question his Honour's conduct of the trial, constantly repeating that the matter had been dealt with in the Local Court and accordingly there was no need for any further proceedings in the Supreme Court. He questioned why jurors without legal knowledge should be involved and declined to cross-examine any of the witnesses, maintaining that he was not interested in anything they said. After a number of witnesses had given evidence, the appellant sought that his Honour disqualify himself for bias, the ostensible reason being that the trial judge was insisting on the calling of evidence in circumstances that the appellant considered unnecessary. 17    On the morning of the fourth day of the trial, 23 July 1998, before the jury came into court the Crown Prosecutor said he wished to raise a matter in relation to the Mental Health (Criminal Procedure) Act 1990 and referred his Honour in particular to s 9 of that Act and the decision of the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 and to R v Presser [1958] VR 45. 18 The Crown Prosecutor said, inter alia,

"It is of concern to me, and that is why I make the submission, that the accused by what he stated yesterday has indicated to the court, that apart from what he stated on previous occasions, he does not want to participate in these proceedings. But yesterday particularly he was indicating to the court through what he was saying that he does have . . . some problem in understanding what is going on, and his statements concerning the way the case has been conducted by the Crown indicates that he has little understanding, . . . of what is occurring."

The Crown Prosecutor also referred to the behaviour of the appellant in court and suggested that, whether it was feigned or not, by such behaviour and by his comments, he was indicating that he was having some difficulty in coping with evidence as it was being given and continued:
"With great respect he is not behaving in a rational fashion. In my submission there is a real question here about whether the trial should continue."

19    He then tendered a further report which had been obtained from Dr Walker dated 19 July, such report being supplementary to the earlier report of 5 June and based solely on the doctor's interview with the appellant on the earlier date. The report was directed primarily to whether there was available to the appellant a defence of mental illness within the M'Naghten rules. Dr Walker could detect no evidence of psychosis and considered that from what little evidence there was available to him, the appellant did not suffer from a delusional disorder, and as I read his report, concluded that he did not come within the M'Naghten definition of mental illness although the wording is not very clear. 20    His Honour observed, incorrectly, that "the issue of fitness was determined before the trial". There had in fact been no fitness hearing, Dr Walker had, as noted above, merely reported upon the appellant after the Director of Public Prosecutions expressed concern as to fitness, but had offered no opinion as to fitness and the subject matter was never the subject of a hearing. 21    His Honour continued:

"There is nothing that I have observed that warrants a determination on fitness. If you propose to raise the matter of fitness before the court, have you considered the procedure advised by the Mental Health (Criminal Procedure) Act 1990 ?"

His Honour indicated his view that the trial could not continue after the raising of the issue and observed that he regarded the issue as "raised in good faith". He said that such being the case the Crown's application would result in the trial being aborted and a fresh jury would need to be empanelled to try the issue of fitness to be tried. After further discussion the Crown Prosecutor sought an adjournment so that he could speak to the Director of Public Prosecutions. The adjournment was granted.

22 On resumption he announced that he had spoken to the Director's office and that he withdrew the application, and in response to a question from his Honour said that he no longer wished to raise the issue of the appellant's unfitness to be tried. The trial continued. The appellant's active involvement at the trial did not improve, although he gave evidence, but did not make a final address to the jury. He continued to voice his opinion monotonously that the proceedings were unnecessary in view of what had occurred in the Local Court and continued to claim that what he had done was not wrong and that both he and the deceased were victims of society. 23 Criminal proceedings relating to persons affected by mental disorders is dealt with by Part 2 (ss 4 - 30), Mental Health (Criminal Procedure) Act 1990 ("the Act"). The question of a person's unfitness to be tried may be raised by any party to the proceedings or by the Court (s 5), and the issue is to be determined on the balance of probabilities (s 6). Section 7 provides that the question of a person's unfitness is so far as practicable to be raised before the person is arraigned, but may be raised at any time during the course of the hearing and may be raised on more than one occasion in respect of the same proceedings. Section 8 provides that where unfitness is raised before arraignment, the Attorney General must determine whether an inquiry should be conducted before the hearing, and that he may at any time before the inquiry is commenced determine there is no longer any need for such inquiry, whilst s 9 requires that where unfitness is raised after arraignment the court must hear any submissions relating to the inquiry in the absence of the jury. Section 10 is as follows:

(1) If, in respect of an offence:
(a) the Attorney General determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted; or
(b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence,
the Court must (except as provided by this section), as soon as practicable after the Attorney General's determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.


(2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.

(3) Before conducting an inquiry, the Court may do any one or more of the following:
(a) adjourn the proceedings;
(b) grant the accused person bail in accordance with the Bail Act 1978 ;
(c) remand the accused person in custody for a period not exceeding 28 days;
(d) request the accused person to undergo a psychiatric examination or other examination;
(e) request that a psychiatric report or other report relating to the accused person be obtained;
(f) discharge any jury constituted for the purpose of those proceedings;
(g) make any other order that the Court considers appropriate.

(4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.

24 The issue of unfitness is to be determined by a jury constituted for that purpose (s 11) unless the person, having sought and received legal advice, elects to have the issue determined by a judge alone (s 11A). Section 12 deals with the conduct of the inquiry and ss 13 to 30 with the procedures that are to be followed if the person is found unfit to be tried. 25 In my view the provisions of s 10 are explicit and mandatory. If the question of a person's unfitness to be tried is raised after the person has been arraigned, the Court must, as soon as practicable after the question is raised, conduct an inquiry in order to determine whether such person is unfit to be tried. There are only two exceptions provided for, one is provided by subs (2) namely that it appears to the court that the question has not been raised in good faith, and the other is provided by subs (4) where the charge or offence is of a trivial nature, and need not be further considered in the present context. 26 In the present case his Honour expressly found that the question had been raised in good faith, and consequently there was no alternative, even though it may have been inconvenient, but to discharge the existing jury and conduct the inquiry required by s 10(1) before a different jury (s 11). As the appellant was refusing to seek or receive legal advice, no question arose of an election under s 11A for the inquiry to be conducted by a judge alone. 27 There can be no doubt that the question was raised by the Crown Prosecutor first thing on the morning of 23 April and, as I have already noted, his Honour agreed that the question had been raised in good faith. The issue having been raised, it was not open to the Crown Prosecutor to "withdraw the application" as he purported to do, because he had not made any application so there was nothing to withdraw, and in any event, once he raised the question, the consequences followed inevitably. 28 It was submitted on behalf of the Crown that before s 10 came into operation the trial judge had to be satisfied that there was a real and substantial question to be considered in relation to the accused's fitness to be tried, and reference was made to R v Presser at 46, Kesavarajah v The Queen at 245 and Eastman v The Queen [2000] HCA 29, 74 ALJR 915, at paras [28], [66], [319]. However, those cases related to the procedure under the relevant Victorian and Australian Capital Territory legislation respectively, both of which were in significantly different terms to s 10. 29 Counsel for the Crown expressed concern that there was a need for a further threshold test in addition to the raised in good faith test provided by subs (2), because the question could be raised in good faith but inappropriately, for example by an over anxious party. Not only do I consider such an occurrence most unlikely but, whatever the position may be at common law and in other states, s 10 admits of no other threshold test. Of course if the judge considered that the question was raised merely for tactical reasons, he or she would not find that it was raised in good faith. No question of that nature arises in this case. The mere fact that the appellant kept asserting that there was no need for a trial because it had all been resolved in the Local Court itself raised the issue of whether he understood the nature of the proceedings. 30 For these reasons, I am satisfied that the question of the accused's fitness to be tried having been raised at the beginning of proceedings on 23 July, his Honour had no alternative but to discharge the jury and order an inquiry in accordance with s 10, and his failure to do so resulted in a mis-trial. As Gaudron J said in Eastman at [62]:

"The consequence of an error as to whether the accused is fit to be tried is 'a fundamental flaw in the trial process.'"

31    It follows that the conviction must be set aside and a new trial ordered, but the consequence of ordering a new trial is that the question has now been raised "before the person is arraigned", and consequently it is up to the Attorney General to determine whether an inquiry should be conducted before the re-trial (s 8). 32    It is also arguable that in the present case the question of fitness to be tried arose before arraignment at the directions hearing on 20 April 1998, but in view of my conclusions in relation to what happened on 23 July 1999 it is not necessary to consider this aspect of the matter any further. 33    I therefore propose the following orders.

1. Appeal allowed.
2. Convictions and sentences quashed.
3. New trial ordered.

4. Note that the question of the appellant's unfitness to be tried has been raised before his arraignment on the new trial and accordingly s 8, Mental Health (Criminal Procedure) Act 1990 applies.

34    GREG JAMES J: I agree with Dunford J.

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