Re v R

[2022] NSWCCA 73

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

RE v R [2022] NSWCCA 73

Hearing dates:

30 March 2022

Date of orders:

30 March 2022

Decision date:

11 April 2022

Before:

Macfarlan JA at [1];
Bellew J at [14];
Wright J at [15]

Decision:

Orders made on 30 March 2022:

(1) Extend the time for leave to appeal to today.

(2) Allow the appeal.

(3) Quash the applicant’s convictions and sentence.

(4) Remit the matter to the District Court for a retrial.

(5) List the matter in the District Court on the next arraignment date occurring 7 days after today’s date.

(6) Reasons for judgment reserved.

Catchwords:

CRIMINAL PROCEDURE – fitness to be tried – trial judge found no real and substantial concern about the applicant’s fitness to stand trial – whether evidence tendered on appeal indicated that there was a miscarriage of justice because there exists an unresolved question about the applicant’s then fitness to be tried

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990 (NSW), s 10

Cases Cited:

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29

Hofer v R [2019] NSWCCA 244

JM v R; R v JM [2017] NSWCCA 138

R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155

R v Tier [2001] NSWCCA 53; 121 A Crim R 509

Category:

Principal judgment

Parties:

RE (Applicant)
Regina (Respondent)

Representation:

Counsel:
G Bashir SC / A Cook (Applicant)
G Newton (Respondent)

Solicitors:
Hugo Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/28160

Publication restriction:

Statutory non-publication order on the identity of the complainant and any material that tends to identify her (see s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW)).

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 March 2017

Before:

Sutherland SC DCJ

File Number(s):

2014/28160

Judgment

1. MACFARLAN JA: In February 2017 the applicant was tried by Sutherland SC DCJ, sitting as a judge alone, in respect of 12 counts that alleged that he had sexually offended against a child and one count of possession of child abuse material. At the time of the alleged offences, the applicant was a teacher at the complainant’s school. The applicant pleaded not guilty to all charges.

2. The trial commenced on 16 February 2017 and concluded on 28 February 2017. Pre-trial legal argument had occurred on 14 and 15 February 2017. By judgment of 21 March 2017, his Honour found the applicant guilty on 10 of the 13 counts in the indictment and on 17 September 2017 sentenced him to an aggregate sentence of 16 years’ imprisonment with an aggregate non-parole period of 12 years expiring on 20 March 2029.

3. During the pre-trial argument the applicant’s counsel raised the question of whether the applicant was well enough to give him instructions. Then, during the trial, the applicant’s counsel raised a question with the trial judge as to whether the applicant was fit to be tried. By an ex tempore judgment of Monday 27 February 2017, the trial judge refused an application made on behalf of the applicant for the trial to be adjourned pending a psychiatric assessment of the applicant to occur on Thursday 2 March 2017 at 1pm. His Honour effectively found that there was no “real and substantial or genuine concern about [the applicant’s] ability to stand trial”. His Honour however indicated that the “door [was] not closed” and that, “[w]ere there to be some medical material placed before the Court”, his Honour would “not close out any further application” that was brought. The trial then proceeded with the applicant electing not to give evidence.

4. Initially the applicant sought leave to appeal to this Court on the sole ground that the trial judge “erred in his consideration of the question of the applicant’s unfitness to be tried”. The applicant’s written submissions filed in support of the leave application contended that , once the question of the applicant’s unfitness to be tried was raised by trial counsel, the trial judge ought to have found that the question was raised in good faith (see s 10(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW), as then in force, and R v Tier [2001] NSWCCA 53; 121 A Crim R 509 at [72]) and ought to have conducted an inquiry as to the applicant’s fitness to be tried (see s 10(1) of the Act). The applicant further contended that the trial judge ought to have sought “elaboration upon the matters giving rise to the concern” by allowing the applicant to obtain a report from a psychiatrist (see s 10(3) of the Act and R v Tier at [72]). A psychiatrist’s report would arguably have constituted material that “suggested that there was a real and substantial, or a genuine concern as to [the applicant’s] fitness to stand trial” (see R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [227]). The Crown’s written submissions in response contended that there was no error in the approach taken by his Honour.

5. Subsequently, the applicant added a further proposed ground of appeal (Ground 2) as follows:

“There has been a miscarriage of justice in the trial on account of fresh and/or new evidence pertaining to the mental state and fitness of the applicant during his trial on 27 and 28 February 2017”.

6. In light of the further evidence which has been put before this Court, the Crown conceded that Ground 2 should be upheld and the applicant’s convictions and sentence quashed, with the matter being remitted to the District Court for a new trial. This Court was satisfied that that concession was properly made and that the Court should make those orders, which it proceeded to do on 30 March 2022. These are my reasons for joining in the making of those orders.

7. Both parties accepted that for Ground 2 to succeed it was unnecessary for error on the part of trial judge to be demonstrated and accepted that it is therefore unnecessary for this Court to address Ground 1. This approach is correct as it is well established that if a question as to an accused’s fitness to be tried is raised for the first time on appeal, the appellate court must set aside his or her conviction unless it is satisfied that the trial court could not reasonably have found the accused unfit (Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [86]-[87] and [319]; JM v R; R v JM [2017] NSWCCA 138 at [144]-[145] and the authorities there cited; Hofer v R [2019] NSWCCA 244 at [68]-[69]). Unless it is so satisfied, a miscarriage of justice has occurred because it is a miscarriage of justice for a person to be tried where there is a real and substantial, unresolved question about the accused’s fitness to be tried. These principles are equally applicable where, although the issue of fitness has been raised at trial, the issue has not been determined there. Whilst the parties in the present case disagreed as to whether the trial judge erred in declining to undertake an inquiry into that issue, or to pursue it further, they are agreed that the issue was not in fact determined at trial.

8. The following evidence tendered in this Court establishes that there is at the least a real and substantial concern as to whether the applicant was at the time of his trial, and in particular on 27 and 28 February 2017, fit to be tried and establishes that this Court is not in a position to conclude that the trial judge could not reasonably have found the applicant to be unfit to stand trial.

9. First, Dr Andrew Ellis, a forensic psychiatrist, made a report dated 24 February 2021 which stated that “[t]here is evidence that [the applicant] may have been unfit for trial in February 2017”.

10. Secondly, in a report dated 20 June 2021 Dr Ellis stated that, having read an affidavit of Ms Natalie Close, the applicant’s treating psychologist, his opinion expressed in his earlier report was not substantially altered. Dr Ellis added the following as to the applicant’s mental state on 27 and 28 February 2017:

“… it is likely that [the applicant] was suffering an exacerbation of an untreated underlying medical condition with symptoms of mood, concentration and memory impaired. These symptoms would likely have contributed to a decision to not give evidence and sign a document indicating this decision”.

11. Thirdly, the Crown subsequently obtained a report dated 25 February 2022 from Dr Yvonne Skinner, a consultant psychiatrist. Having outlined reasons for concern about the applicant’s mental state on 27 and 28 February 2017, Dr Skinner concluded:

“In my opinion it is likely that [the applicant] was not fit to stand trial during that period 27-28 February 2017 and possibly prior to that period, due to a mental condition. He is intelligent and educated and was probably able to understand the nature of the charges and court proceedings, but it is likely that he was not able to prepare a defence, to give instructions to his legal team and to give evidence in court because of an underlying mental condition. Justice Health records indicate that his condition has improved with treatment in custody”.

Conclusion

12. The material tendered in this Court, which was not available at the trial, demonstrates that there is at the least a real and substantial concern as to whether the applicant was fit to stand trial on 27 and 28 February 2017, when the Crown case closed and the time arrived for him to elect whether or not to give evidence. It follows that this Court cannot conclude that it would not have been open to the trial judge or any other judge of the District Court to find that the applicant was not fit to be tried on 27 and 28 February 2017.

13. In these circumstances, it was appropriate for the Court to make the following orders which it made on 30 March 2022:

1. Extend the time for leave to appeal to today.

2. Allow the appeal.

3. Quash the applicant’s convictions and sentence.

4. Remit the matter to the District Court for a retrial.

5. List the matter in the District Court on the next arraignment date occurring 7 days after today’s date.

6. Reasons for judgment reserved.

14. BELLEW J: For the reasons given by Macfarlan JA, I joined in the orders made on 30 March 2022.

15. WRIGHT J: I joined in making the orders on 30 March 2022 for the reasons given by Macfarlan JA.

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Decision last updated: 11 April 2022