Regina v R T I

[2005] NSWCCA 337

Reported Decision: 158 A Crim R 172

New South Wales

Court of Criminal Appeal

CITATION:	Regina v R T I [2005] NSWCCA 337
HEARING DATE(S):	20 September 2005
JUDGMENT DATE:	20 September 2005
JUDGMENT OF:	Giles JA at 1; Hislop J at 47; Smart AJ at 48
DECISION:	The determinations that the appellant committed the offences be quashed and new special hearings be conducted.

CATCHWORDS:	Special hearings under Mental Health (Criminal Procedure) Act 1990 - charges of sexual offences - election for determination by judge alone - whether hearings miscarried because judge did not enquire into understanding of nature of election - R v Minani required judge be satisfied that person's barrister or solicitor be satisfied person properly understood - no enquiry into this - judge's determinations quashed - whether charges of sexual intercourse without consent with person under 16 unreasonable and inconsistent with evidence - consideration of evidence as to complainant's age at the time of the alleged offences - open to judge to be satisfied beyond reasonable doubt - observations as to nomination of limiting terms under Mental Health (Criminal Procedure) Act - cumulation where multiple offences - can not nominate limiting term if commencement after the time of nomination - legislative attention deserved.
CASES CITED:	Jones v The Queen (1989) 166 CLR 409; R v AN [2005] NSWCCA 239; R v Birlut (1995) 39 NSWLR 1; R v Kurtic, (CCA, 16 February, unreported); R v Minami [2005] NSWCCA 226; R v Mifsud (CCA, 8 November 1995, unreported).
PARTIES:	Regina v R T I
FILE NUMBER(S):	CCA 2005/939
COUNSEL:	J R Dwyer - Crown J Stratton SC - Applicant
SOLICITORS:	S Kavanagh, Public Prosecutions - Crown S O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0081
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

CCA 2005/939
DC 04/11/0081

GILES JA
HISLOP J
SMART AJ

Tuesday 20 September 2005

R v R T I (No 2)

Judgment

1 GILES JA: The Mental Health (Criminal Procedure) Act 1990 (“the Act”) provides for the conduct of a special hearing when a person charged with an offence has been found unfit to be tried. In May and June 2004 Finnane DCJ conducted two special hearings in respect of a number of offences of sexual assault and assault with which the appellant was charged. The special hearings were not by a jury but, upon an election under the Act’s provisions, by the judge alone. On 30 July 2004 the judge determined that the appellant committed all the offences with which he was charged.

2 On 15 October 2004, again under the Act’s provisions, the judge nominated limiting terms in respect of the offences, being the sentences of imprisonment he would have imposed if the special hearings had been normal trials of a person who was fit to be tried for the offences. His Honour made the limiting terms partially cumulative, the overall result being imprisonment for a total of eleven years commencing on 13 May 2002.

3 The appellant appealed against conviction and applied for leave to appeal against sentence, the judge’s determinations and his nominations of limiting terms being encompassed by those words for the purposes of s 5 of the Criminal Appeal Act 1912. For the reasons which follow, in my opinion the determinations that the appellant committed the offence should be set aside and new special hearings should be conducted; the nominations of the limiting terms thus fall away.

The charges and the special hearings

4 At the first special hearing the indictment contained seven counts of offences committed against the complainant RP, a friend of one of the appellant’s daughters then living with the appellant and his family. The charges were, in brief -

(1) between 1 January 1982 and 30 June 1982, having sexual intercourse without consent with a person under the age of 16 ( Crimes Act s 61D);

(2) between 1 January 1982 and 30 June 1982, having sexual intercourse without consent with a person under the age of 16;

(3) between 1 January 1982 and 31 December 1982, having sexual intercourse without consent ( Crimes Act s 61D);

(4) between 1 January 1984 and 31 December 1984, maliciously inflicting actual bodily harm with intent to have sexual intercourse ( Crimes Act s 61C);

(5) between 1 January 1987 and 7 September 1987, having sexual intercourse without consent;

(6) between 1 September 1987 and 7 September 1987, assault (Crimes Act s 61); and

(7) between 7 September 1987 and 30 September 1987, having sexual intercourse without consent.

5 At the second special hearing the indictment contained three counts of offences against the appellant’s son RI. The charges were, in brief -

(1) between 7 October 1982 and 7 October 1983, committing an act of indecency towards a person under 16 ( Crimes Act s 61E(2));

(2) between 7 October 1982 and 7 October 1983, inciting an act of indecency with a person under 16 ( Crimes Act s 61E(2)); and

(3) between 7 October 1982 and 7 October 1983, indecent assault on a male ( Crimes Act s 81).

6 Each of the provisions of the Crimes Act 1900 on which the charges were based has since been repealed.

7 The first special hearing commenced on 10 May 2004. Following the completion of evidence, the second special hearing commenced on 13 May 2004. On the completion of evidence the proceedings were adjourned, and addresses were heard on 8 June 2004. The judge reserved his decisions, and gave judgment on 30 July 2004. The proceedings were adjourned to 15 October 2004, on which date the limiting terms were pronounced.

The appeal against conviction

8 The appellant appealed against conviction on five grounds. They were framed in the language of trial in accordance with normal procedures, rather than the conduct and outcome of a special hearing, and were -

(1) The verdicts of guilty on Counts 1 and 2 in the first trial are unreasonable and inconsistent with the evidence.

(2) In the second trial his Honour erred by stating that suggestions that the complainant had lied were to be looked at very carefully and scrutinised before being accepted, effectively reversing the onus of proof.

(3) In the second trial, his Honour erred in improperly using relationship evidence admitted in the Crown case as evidence of the appellant’s guilt of the offences charged.

(4) In the second trial, his Honour erred in taking into account material in the complainant’s statement, and record of interview, which were not admitted in evidence.

(4A) The two trials miscarried because his Honour never made a determination that the appellant properly understood the nature of the election to proceed judge alone.

Ground 4A

9 It is convenient first to address this ground of appeal, since upholding it would result in setting aside the judge’s determinations that the appellant committed the offences. It was founded on the decision of this Court in R v Minani [2005] NSWCCA 226, delivered on 8 June 2005 and thus after the judge had given his decisions. The Crown conceded that R v Minani could not be distinguished, and that the judge’s determinations should be set aside. It is appropriate to explain why the concession was correctly made.

10 In accordance with the provision of the Act, on 1 December 2003 the Attorney General directed that a special hearing be conducted in respect of the offences with which the appellant was charged. The direction recorded that the Attorney General had been advised that on 30 May 2003 the appellant was found unfit to be tried and that on 13 August 2003 the Mental Health Review Tribunal had determined, on the balance of probabilities, that he would not become fit to be tried for the offences within twelve months of the finding of unfitness. These matters can be seen in an earlier decision of this Court in relation to other offences with which the appellant had been charged, R v RTI (2003) 58 NSWLR 438.

11 By s 19(2) of the Act, whether the appellant had committed the offences with which he was charged was, except as provided by s 21A, to be determined at a special hearing by a jury constituted for that purpose. Section 21A provided for election for determination by a judge alone -

“(1) At a special hearing, the question whether an accused person has committed an offence charged or any other offence available as an alternative to an offence charged is to be determined by the Judge alone if the person so elects in accordance with this section and the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor .

(2) An election may be made only with the consent of the prosecutor.

(3) An election must be made before the date fixed for the person’s special hearing in the Supreme Court or District Court.

(4) An accused person who elects to have a special hearing determined by the Judge alone may, at any time before the date fixed for the person’s special hearing, subsequently elect to have the matter determined by a jury.

(5) Rules of court may be made with respect to elections under this section.” (emphasis added)

12 Part 53 r 10E of the District Court Rules provides that an election under s 132 of the Criminal Procedure Act 1986, which provides for election for trial by a judge alone with the same requirement of the judge’s satisfaction as in the emphasised words in s 21A, shall be “in writing in or to the effect of the approved Form”. Form 146 includes, after the statement of election, “I have before making this election sought and received advice in relation to the election from my barrister [or solicitor]”. No rules have been made with respect to elections under s 21A of the Act.

13 There was marked as an exhibit before the judge a form of election which referred to the counts in the indictments, recorded that the appellant “elect[ed] to be tried by a Judge alone in respect of the alleged offence(s)”, and included, “I have before making this election sought and received advice in relation to the election from my solicitor, Karen Ann Rodgers”. Form 146 in the District Court Rules appears to have been adopted. The appellant’s signature was beneath the date 6 May 2004, was in the form of a cross and his surname, and was witnessed by Ms Rogers.

14 The Attorney General’s direction and the form of election were tendered and admitted without objection at the commencement of the first special hearing, prior to the presentation of the indictment. For the second special hearing, the documents were tendered and admitted without objection at the same time as the indictment was presented. There was no evidence, at these times or at all, additional to the statement in the form of election that the appellant had sought and received advice in relation to the election from Ms Rogers, or as to his understanding of the election. Nor does the transcript reveal any enquiry by the judge concerning the appellant’s understanding of the election.

15 That was the position in R v Minani. In that case a special hearing was held without a jury, relevantly upon an election stating that the person charged had sought and received advice in relation to the election from two solicitors. Unlike the present case, there was evidence on appeal (although not before the judge conducting the special hearing) that one of the solicitors had explained to the person charged that he had the right to have a judge alone or a judge and jury, and that it may well be in his best interest to have a judge alone because a judge alone would probably better understand the issues regarding his mental health than a jury of twelve ordinary people; and that the person charged had said that he understood and wished to have his matter proceed by way of judge alone.

16 It was submitted on appeal that it was “inherent in s 21A that the judge must satisfy him or herself that the accused properly understands the nature of the election which that person is making” (at [13]). Reliance was placed upon the decision of this Court in R v Mifsud (8 November 1995, unreported). It was concerned with s 11A of the Act which, in relevantly the same terms as s 21A, permitted an election to be made by the person charged to have a judge alone determine the issue of his fitness to be tried.

17 Hunt AJA, with whom Spigelman CJ and Howie J agreed, first considered R v Mifsud; his Honour’s citation from that case is important in explaining his conclusion. He said -

“14 In Regina v Mifsud , Gleeson CJ said of s 11A:


‘By hypothesis the section is concerned with the making of an election by a person whose fitness to be tried is in question because of some mental disorder. For such a person to make an effective election requires that the person understands what he or she is doing. The person must be able to understand what is involved in such an election.

In addition the judge must be satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor. In practice, of course, there will ordinarily be a close relationship between the question whether the person has sought and received advice in relation to the election and the question whether the person is capable of understanding and understanding what is involved in the making of an election. The requirement that the legal advice be “sought and received” does not mean that the person must take the initiative in obtaining legal advice.

On the other hand it is not sufficient that a barrister or solicitor merely tenders advice which may or may not be understood by the person to whom it is tendered. What is required is that the person should be willing to be advised on the matter and should understand the advice that is tendered.
…
Depending upon the circumstances of an individual case it may well be that a person who is ultimately found to be unfit to be tried is, nevertheless, fit to make an election under s 11A and is capable of seeking and receiving advice in relation to that election. … On the other hand, depending upon the circumstances of an individual case, matter which throws doubt upon a person’s fitness to be tried may also throw doubt upon a person’s capacity to make an election under s 11A and to seek and receive legal advice in relation to such an election.
…
It might be expected that in a case such as the present, at least one of the psychiatrists whose reports were to be received in relation to the determination of fitness to be tried, might have been asked to express an opinion on the applicant’s fitness to make an election under s 11A. Furthermore, in a case where there was evidence that the applicant was suffering from a serious mental disorder it might have been expected that the important issue of tendering legal advice in relation to the making of the decision would have been treated with rather more formality’.”

18 Hunt AJA continued -

“15 In that particular case, the judge did not accept that the accused was fit to make the election for a judge-alone hearing, and he ordered that the trial proceed before a jury. The matter was before this Court by way of an interlocutory appeal from the order made by the judge rejecting the election and ordering the fitness to be tried hearing to proceed with a jury. The other members of the Court agreed with the judgment of Gleeson CJ.

16 In my opinion, s 21A places on the judge the same obligation as that placed by s 11A. But the appellant’s argument — that the obligation is for the judge to satisfy him or herself that the accused properly understands the nature of the election which he is making — is not what s 11A or s 21A or this Court’s decision in Regina v Mifsud requires. The judge does not have to interrogate the accused person, and it may be unwise to do so. The obligation placed on the judge in both sections, as interpreted in Regina v Mifsud , is to satisfy him or herself that the barrister or solicitor was satisfied that the accused properly understood the nature of the election he was making.”

19 His Honour noted that R v Mifsud had been subsequently distinguished by Kirby P in R v Birlut (1995) 39 NSWLR 1, a case concerned with what became s 132 of the Criminal Procedure Act; Kirby P had inferred that the judge was satisfied from the tender, with the full knowledge of the accused’s legal representatives, of an affidavit from the accused asserting that he had received the appropriate advice. Hunt AJA observed that the applicability of R v Mifsud to s 21A was “even greater” than its applicability to s 132, because s 21A was necessarily concerned with the making of an election by a person whose fitness was in question because of some mental disorder.

20 After referring to material bearing upon the accused’s mental state in the hearing into his fitness to be tried and the special hearing, Hunt AJA said -

“21 There is no basis for assuming that the two lawyers who advised the appellant concerning the election for a judge-alone hearing were qualified to say whether the appellant understood what was involved in making that election. They relied solely on the words which the appellant used, which would by themselves indicate a fitness to make the election. But, to use the words of Gleeson CJ, was the appellant able to understand that was involved in such an election? The judge did not make any inquiries of those appearing for the appellant at the judge-alone hearing whether they had obtained any psychiatric assessment of the appellant’s competence to make that election. The issue was not addressed in the reports which were tendered. He made no other inquiry.

22 The Crown has suggested that the judge may be assumed to have read the material (including the letters from the appellant) in the court file. That would not, in my view, be an appropriate way for the judge to have proceeded, as compliance with the section is a formal requirement and should be on material which is identified on the court record. In any event, it was conceded by the Crown in argument that it was unable to point to any material in the court file (including the letters from the appellant) which would have been relevant to this issue.

23 Accordingly, in my opinion, and in accordance with this Court’s decision in Regina v Mifsud , the judge was in error in ordering the special hearing to proceed without a jury. That conclusion is sufficient to quash the determination made by the judge that the appellant was not guilty, on the ground of mental illness, of wounding the victim with intent to do grievous bodily harm.”

21 In dealing with a submission that the person charged should be dealt with as a mentally ill person under s 7(4) of the Criminal Appeal Act 1912, Hunt AJA later said -

“39 In the present case, however, it was no mere procedural irregularity which has led to the need to quash the determination made. The defect in this case was that the judge erroneously denied to the appellant his right to a jury in the special hearing. That is an error of such fundamental importance that it would be inappropriate to make any order pursuant to s 7(4). The Crown conceded that, if the appellant succeeded on the first ground of appeal, the failure of the judge to comply with the requirements of s 21A of the Mental Health (Criminal Procedure) Act , s 7(4) does not arise.”

22 The Crown did not suggest that this recent decision of this Court should be revisited, but made the concession to which I have referred. I do not think it can be inferred that the judge was satisfied that Ms Rogers was satisfied that the appellant properly understood the nature of the election he was making. No enquiry was made by the judge. No material bearing upon the appellant’s mental state was tendered before him for the purposes of his determinations; his Honour knew only that the appellant had been found unfit to be tried. In his reasons of 30 July 2004 his Honour recorded that the proceedings were a special hearing because it had earlier been determined that the appellant was not fit to plead, and observed that “[t]hroughout the trial, he sat in the dock, showing little apparent interest in what was said, but occasionally making a groan or a sigh. He is a large, bearded man, of very unkempt appearance”. If anything, this would excite the need for the satisfaction described in R v Minani. On 15 October 2004 there was put before his Honour a report of Dr Bruce Westmore, forensic psychiatrist, but it did not deal with the appellant’s competence to make the election; indeed, it recorded the appellant’s belief that there had not been a fitness hearing or a special hearing.

23 In my opinion, therefore, the two special hearings miscarried and the judge’s determinations should be quashed. Subject to what appears below, new special hearings should be conducted.

The other grounds

24 Grounds 2, 3 and 4 need not be considered. For ground 2, the appellant relied on a remark by the judge in the course of argument. There is nothing in the judge’s reasons of 30 July 2004 suggesting that it was carried into his decision-making. If the remark indicated an erroneous approach, there is no reason to think the approach will be taken, or left uncorrected by the Crown, in any new special hearings. For ground 3, the judge expressly said that he would have found beyond reasonable doubt that the appellant committed the offences without the relationship evidence, and described that evidence as helping to confirm the opinion he had reached; again, the matter will be approached afresh in any new special hearing. For ground 4, it appears to have been correct that the complainant’s statement and record of interview were not in evidence, although oral evidence founded upon them was given; if the slip was material, it should not re-occur in any new special hearing.

25 It is necessary, however, to consider ground 1, since upholding it would entitle the appellant to a determination that he was not guilty of the relevant offences: Jones v The Queen (1989) 166 CLR 409.

26 Counts 1 and 2 alleged offences against RP prior to 30 June 1982. RP was born on 30 June 1966. It was necessary that the judge be satisfied beyond reasonable doubt that the offences were committed prior to that date.

27 RP was intellectually handicapped. She attended a special class for slow learners at the local high school, one of the appellant’s daughters being a school friend. Her family lived in the same street as the appellant’s family, and at a time she was having trouble at home RP moved into the appellant’s house and shared a room with the daughter.

28 RP gave evidence that, a few days after she moved into the appellant’s house, the appellant dragged her into his bedroom and had sexual intercourse with her, to which she did not consent; she said that this was while she was still at school. She gave evidence that a few days later, after a horse riding outing, the appellant called her into his bedroom, undressed her, and again had sexual intercourse without her consent. In her evidence in chief she said that she moved into the appellant’s house about six weeks before her sixteenth birthday, that is, about mid-May 1982. RP’s mother also gave evidence that RP was fifteen when she moved into to the appellant’s house, about a fortnight away from her sixteenth birthday.

29 This evidence as to RP’s age, or as to when in 1982 she moved into the appellant’s house, was put in question in a number of ways.

30 First, RP said in her evidence in chief that she paid money for rent out of her disability support pension “[w]hen [she] moved in with the accused”. This was equivocal as to commencement of payment of rent, but when it was put to her in cross-examination in the terms that she began paying board as soon as she moved in, she agreed. She also agreed that she did not get the pension until she left school, which was in August or perhaps October 1982, and when it was put she therefore must have been either 16 or 17 when she moved in she answered “Mm mm”.

31 At this point in the cross-examination the judge sought clarification -

“HIS HONOUR: Q. You see you’ve said earlier you were 15 that’s why your [sic] being asked?
A. Yes I was almost 16.
Q. What counsel is putting to you, you must have been older than you said you were before, because you had to have left school to have the pension?
A. Yeah.
Q. Do you understand?
A. Yeah.
Q. That’s right isn’t it?
A. Yes.”

32 RP nonetheless repeated that she was still at school when she moved into the appellant’s house, and said that the first occasion was when she was still at school but was home because she was unwell. She said that she and another of the appellant’s daughters used to go to school together, and that “as far as I can remember” it was six weeks before her sixteenth birthday.

33 To this may be added evidence from the appellant’s son RI, at the time aged about 14, estimating RP’s age in the bracket 16 to 17 but, perhaps more importantly, saying that his parents “got her onto a pension” and that that happened when RP came to live with them; the thrust of his evidence was that the two things happened in close proximity in time.

34 RP’s mother gave further evidence that RP was not getting a pension when RP was living with her. When it was put to RP’s mother in cross-examination that RP left home in 1983 rather than 1982, she answered “I don’t know”.

35 Secondly, RP was asked about the state of the appellant’s house when she moved in. She said that there were six bedrooms, that some extensions had been just finished save for one wall which had not been put up, and described the bedroom arrangements. Papers from a file of the Department of Housing indicated that the extensions producing six bedrooms were only a proposal as at early 1983.

36 The judge said that it was clear to him that RP had intellectual problems, but that she nevertheless gave evidence in a clear and understandable manner and that he formed the opinion that she was an honest witness. Correctly noting that her reliability had to be assessed as well as her honesty, he said that evidence given by a witness of low average intelligence about events occurring more than twenty years ago would have required a warning to a jury, and that he looked very carefully at her evidence and in the light of the other evidence before him. He said he had come to the conclusion “[t]hat the complainant’s evidence is reliable, although, as I shall indicate, there may be some matters about which she is mistaken”.

37 As to the matters referred to above, his Honour said that he considered that RP’s mother was “an honest and reliable witness” and that her evidence “enables me to be convinced beyond reasonable doubt that the complainant was under the age of 16 years when she went to live in the household of the accused”. His Honour continued -

“It is clear that at some point after she went to live at the [appellant’s house], she was receiving a pension of some kind and the benefit of this went to the accused. However, I see no reason to conclude that she was getting this in the period up to August 1982, when she was still at school.
There was a great deal of cross-examination of the complainant about her age when she went there. A file from the Housing Commission was tendered in evidence with a view to showing that she was wrong in her claim that she went to live with the [appellant’s family] shortly before her 16th birthday. This file establishes when some alterations were made to the [appellant’s] house and on one view of it, shows that she was mistaken about the layout of the house and how many bedrooms there were at various stages.
In my opinion, the cross-examination did not damage the credit of the complainant. I am satisfied beyond reasonable doubt, having made allowance for her low intelligence and the fact that she was speaking of events of many years ago, that she was on 15 years old when she went to live with the [appellant’s family] and that it was a matter of weeks before her 16th Birthday in 1982 that she went to live there.”

38 If the determinations at the special hearing had been by a jury, the question would have been whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant had committed the offences, bearing in mind that the jury was entrusted with the primary responsibility to make the determinations and the advantage of the jury in having seen and heard the witnesses give evidence before them: Jones v The Queen (1997) 191 CLR 439 at 451. With additional regard to the judge’s reasons for his determinations, the question is the same in a hearing before a judge alone (see R v Kurtic, CCA, 16 February 1996, unreported).

39 The appellant submitted that RP’s low intelligence and the passage of time should have caused his Honour to exercise particular caution in accepting RP’s accuracy concerning her age at the time of the alleged offences, and that the evidence concerning payment of board from the pension and concerning the extensions to the house at the least raised reasonable doubt. It was submitted that it was as likely that RP was correct in her recollection of those matters as she was in her recollection of moving into the appellant’s house while still at school.

40 The Crown submitted that the judge had the benefit of seeing and assessing the witnesses and was able to assess their reliability, that there may have been some distortion of RP’s evidence by putting to her in leading form that she had paid board from the time she moved into the appellant’s house, and that there was ample evidence on which the judge could be satisfied beyond reasonable doubt that RP was under 16 at the time of the offences the subject of counts 1 and 2.

41 In my opinion, the Crown’s position should be accepted. There were discrepancies in RP’s evidence, but a constancy that she was at school at the time of the alleged offences and that they occurred prior to her sixteenth birthday. Her mother’s “I don’t know” could well have been no more than a not uncommon inability to put a year to an event. It was a classic jury exercise for the judge, to decide what in the evidence was reliable despite discrepancies and despite the professed recollection as to the extensions. This could readily enough have been seen as mistaken recollection not impugning the evidence of the time of occurrence of the offences, when the extensions may not have been begun until well into 1983. RP’s intellectual state called for most careful consideration of her evidence and regard to the other evidence, and the judge directed himself accordingly. I am not persuaded that this ground has been made out.

The appeal against sentence

The appellant accepted that the individual limiting terms were open to the judge, but submitted that his Honour had erred in the cumulation at which he arrived. Although it is not necessary to deal with the matter, something should nonetheless be said of the operation of the Act in the nomination of limiting terms.

42 Section 23 of the Act relevantly provides -

“(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:


(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and

(b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term , in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.


…

(4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence).

(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court, after taking into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time.”

43 Section 23(5) directs that the limiting term takes effect from the time when it is nominated. It and s 23(4) authorise only a back-dated commencement of a limiting term having regard to the periods of the person’s custody or detention before, during and after the special hearing, being periods related to the offence. Further, as was pointed out in R v AN [2005] NSWCCA 239 at [14], s 23(5) does not authorise the commencement of a limiting term on a date after its imposition. Thus the Court can not nominate cumulative or partly cumulative limiting terms if commencement of some of the limiting terms would be after the time of nomination.

44 In the present case a number of the limiting terms were backdated to commence at times prior to 15 October 2004. It is not clear why the first commencing date of 13 May 2002 was selected by the judge, although we were informed that the appellant had been in custody from that date and his Honour must have been so informed. However, the appellant was not charged with the offences presently in question until 4 July 2001, and his earlier custody had been related to other offences (see R v RTI, above). Some of the limiting terms were imposed to commence on dates after 15 October 2004, as a result of his Honour’s consideration of cumulation. It does not appear that the significance of s 23(4) and (5) was drawn to his Honour’s attention, and his sentencing miscarried as to the first commencing date and the limiting terms commencing after 15 October 2004.

45 It is difficult to see that the legislature intended that the range of sentencing options available on a trial in accordance with normal procedures should not be available: s 23(1)(b) of the Act is to the contrary. Yet that is so when there are multiple offences calling for consideration of cumulation. There is a defect in the legislation, which deserves further attention.

46 I propose that the determinations that the appellant committed the offences be quashed and that new special hearings be conducted.

47 HISLOP J: I agree with Giles JA.

48 SMART AJ: I agree with Giles JA. It is a matter for the Director of Public Prosecutions but I would query, in the context of all the charges being preferred, whether there is a great deal of point in litigating at length the contentious issue under counts 1 and 2 whether the complainant was just under 16 or just over 16 at the time of the alleged offence, bearing in mind the age of the alleged events. The major issue is whether the accused

had sexual intercourse without consent. It would be a pity if the contest over the complainant’s age distracted attention from the main issue.
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