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

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.
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.
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…

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 Re v R

Details

AGLC: Re v R [2022] NSWCCA 73
Case: [2022] NSWCCA 73
Decision Date: 11 April 2022

CaseChat Overview and Summary

In this matter, the applicant, who is the respondent in the court of appeal, has appealed against his conviction on the grounds that the primary judge erred in finding that there was no real and substantial concern about the applicant’s fitness to be tried. The appeal was heard in the High Court of Australia, the ultimate court of appeal in Australia. The central issue for determination by the Court was whether the evidence presented on appeal demonstrated that the primary judge’s findings led to a miscarriage of justice, given that there remained an unresolved question about the applicant's fitness to be tried at the time of the trial.

The Court considered the extensive evidence and expert opinions regarding the applicant’s mental health and fitness to stand trial. The Court highlighted the importance of determining whether there existed a real and substantial concern about the applicant’s fitness at the time of the trial, as this could affect the fairness and validity of the trial process. It was crucial to assess whether the trial judge's findings were open to the evidence presented and whether they were reasonable in the circumstances. The Court noted that the primary judge had access to all the relevant evidence and expert opinions and had exercised their discretion in concluding that there was no real and substantial concern about the applicant’s fitness to be tried.

After thoroughly reviewing the evidence and the trial judge's assessment, the Court found that the trial judge’s conclusion was open to the evidence and was not unreasonable. The Court concluded that there was no miscarriage of justice, as the trial judge had appropriately considered the evidence and exercised their discretion in finding that there was no real and substantial concern about the applicant’s fitness to be tried. The Court dismissed the appeal, affirming the conviction.

Orders