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…

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 Regina v R T I

Details

AGLC: Regina v R T I [2005] NSWCCA 337
Case: [2005] NSWCCA 337
Decision Date: 20 September 2005

CaseChat Overview and Summary

In Regina v R T I, the appellant faced charges of sexual offences and elected for a determination by a judge alone under the Mental Health (Criminal Procedure) Act 1990. The appellant's trial judge found him not guilty by reason of mental impairment, but the appellant challenged the legality of the proceedings. The court was required to determine whether the special hearing miscarried due to the judge's failure to enquire into the appellant's understanding of the nature of his election, and whether the charges of sexual intercourse without consent with a person under 16 were unreasonable and inconsistent with the evidence.

The court held that the special hearing miscarried because the trial judge did not ensure that the appellant's legal representatives were satisfied that he properly understood the nature of his election. This was a necessary step in accordance with the decision in R v Minani. The court quashed the judge's determinations and found that the charges were reasonable and supported by the evidence. The court considered the evidence regarding the complainant's age at the time of the alleged offences and was satisfied beyond reasonable doubt that the charges were appropriate. The court also made observations regarding the nomination of limiting terms under the Mental Health (Criminal Procedure) Act, particularly in cases where multiple offences are charged, and suggested that legislative attention may be needed in this area.

The final orders of the court were that the determinations of the trial judge were quashed, and the charges against the appellant were reinstated for further proceedings. The court's decision highlights the importance of ensuring that individuals who elect to be tried by a judge alone fully understand the nature of their election, and the need for careful consideration of charges of sexual offences against minors.

Orders