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R v Zvonaric

R v Zvonaric

Case [2001] NSWCCA 505 14 December 2001

Appeal

Necessity for arraignment

Admissibility of Evidence

Consent

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v ZVONARIC [2001] NSWCCA 505

FILE NUMBER(S):
60147/01

HEARING DATE(S): 13 November 2001

JUDGMENT DATE: 14/12/2001

PARTIES:
Regina

Peter Ian ZVONARIC

JUDGMENT OF: Spigelman CJ Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/31/0400

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:
Appellant in person

P G Berman SC (Crown)

SOLICITORS:
Appellant in person

S E O'Connor (Crown)

CATCHWORDS:
Appellant unfit for trial
special hearing
necessity for arraignment
whether evidence must be sworn
whether person charged may consent to tender of entire prosecution case
desirability of reading tendered statements
adequacy of reasons
appeal allowed
verdicts of acquittal entered

LEGISLATION CITED:
Mental Health (Criminal Procedure) Act 1990
Criminal Procedure Act 1986
Evidence Act 1995

DECISION:
See paragraph 52

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60147/01

SPIGELMAN CJ
SULLY J
ADAMS J

FRIDAY 14 DECEMBER 2001

REGINA v Peter Ian ZVONARIC

Judgment

SPIGELMAN CJ: I have had the advantage of reading the judgment of Adams J in draft. His Honour sets out the course of the proceedings, the relevant parts of the judgment appealed from and the issues that arise. I agree with his Honour’s orders but for somewhat different reasons.
The proceedings were a special hearing pursuant to Pt 2 of the Mental Health (Criminal Procedure) Act 1990 pursuant to a direction from the Attorney General. The relevant statutory provisions are as follows:
“19(1)                  If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
(2)         The question whether a person has committed an offence charged or any other offence available as an alternative to an offence charged is, except as provided by section 21A, to be determined at a special hearing by a jury constituted for that purpose.
…
21(1)  Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
(2)         At a special hearing, the accused person must, unless the Court otherwise allows, be represented by counsel or a solicitor and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation.
(3)         At a special hearing:
(a)         the accused person is to be taken to have pleaded not guilty in respect of the offence charged; and
(b)         the counsel or solicitor, if any, who…

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 Zvonaric

Details

AGLC: R v Zvonaric [2001] NSWCCA 505
Case: [2001] NSWCCA 505
Decision Date: 14 December 2001

CaseChat Overview and Summary

The appellant, Zvonaric, was charged with numerous offences and was deemed unfit for trial. A special hearing was held to consider whether it was necessary to proceed with arraignment and if the evidence presented should be sworn. The court had to determine if the person charged could consent to the tender of the entire prosecution case and if the tendered statements should be read. Additionally, the court considered the adequacy of the reasons provided.

The court found that it was not necessary to proceed with arraignment as the appellant was unfit to stand trial. It was held that the evidence did not need to be sworn. The court also determined that the person charged could consent to the tender of the entire prosecution case. Furthermore, the court found that it was not desirable to read the tendered statements to the jury. The court concluded that the reasons provided were adequate.

The appeal was allowed, and the verdicts of acquittal were entered in favour of the appellant. The court held that the trial judge had erred in not considering the desirability of reading the tendered statements to the jury. The court also found that the trial judge had not provided adequate reasons for his decision to proceed with the trial.

The final orders were that the verdicts of acquittal were entered, and the appeal was allowed. The case highlights the importance of considering the fitness of the accused to stand trial and the need for adequate reasons to be provided when making decisions regarding the proceedings.

Orders