Ta v R - [2019] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TA v R [2019] NSWCCA 145
Hearing dates: 24 May 2019
Date of orders: 24 May 2019
Decision date: 24 May 2019
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Wilson J at [20]
Decision:
The Court makes the following orders:

(1) Time is extended to bring the appeal out of time.

(2) Leave to appeal against conviction granted.

(3) Appeal against conviction allowed.

(4) The four convictions entered on 14 September 2016, concerning three counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act and one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act, are quashed.

(5) On each count, a special verdict of not guilty on the grounds of mental illness is entered.

(6) Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the appellant is to be detained in such place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by the due process of law.

(7) The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

(8) The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide those bodies with the following documentation:

(a) A copy of the judgment of this Court and its orders;

(b) A transcript of these proceedings;

(c) A transcript of the trial; and
(d) A copy of the exhibits tendered at trial.
Catchwords: APPEAL – conviction – mental impairment defence – new evidence – psychiatric evidence from second trial – leave to appeal – out of time application – mental impairment found regarding similar counts – psychiatric evidence covers some period in first trial – unable to reason with moderate degree of composure – moral wrongfulness – mental illness – special verdict not guilty
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Carter v R [2019] NSWCCA 11
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v El-Kheir [2018] NSWDC 245
Category: Principal judgment
Parties: TA (Appellant)
Regina (Crown)
Representation:
Counsel:
D Dalton SC with A Cook (Appellant)
B Baker (Crown)
Solicitors:
Younes and Espiner Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/131948
Decision under appeal

Court or tribunal:

District Court of New South Wales, Sydney

Jurisdiction:

Criminal

Date of Decision:

14 September 2016

Before:

Huggett DCJ

File Number(s):

2014/131948

ex tempore Judgment

HOEBEN CJ AT CL: I agree with the reasons and orders proposed by Walton J.
WALTON J: The appellant seeks leave to appeal against his convictions for four counts of aggravated sexual intercourse without consent contrary…

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 Ta v R

Details

AGLC: TA v The Queen [2019] NSWCCA 145
Case: [2019] NSWCCA 145
Decision Date: 24 May 2019

CaseChat Overview and Summary

The appeal arose from a conviction where the appellant challenged the trial judge's decision to reject the defence of mental impairment. The appellant was convicted of serious criminal charges and sought leave to appeal on the basis of new psychiatric evidence obtained from a second trial. The Court of Appeal had to decide whether it had jurisdiction to hear the out-of-time application and whether the psychiatric evidence from the second trial was sufficient to warrant a new trial. The Court needed to determine if the evidence could establish that the appellant suffered from a mental impairment that affected their ability to reason with a moderate degree of composure at the time of the alleged offences.

The Court of Appeal held that it had jurisdiction to consider the out-of-time application and that the psychiatric evidence from the second trial was relevant as it covered a period during the first trial. The court found that the psychiatric evidence demonstrated that the appellant suffered from a mental illness that impaired their ability to reason and understand the moral wrongfulness of their actions. The evidence showed that the appellant could not reason with a moderate degree of composure, which was a critical element in establishing the defence of mental impairment. Consequently, the Court of Appeal concluded that the appellant was not criminally responsible for the offences due to their mental impairment.

In light of the findings, the Court of Appeal quashed the conviction and ordered a new trial. The Court directed that a special verdict be returned by the jury on the issue of criminal responsibility, given the findings of mental impairment. The Court emphasised the importance of ensuring that the appellant's rights were protected and that any trial must consider the impact of their mental condition on their capacity to understand and respond to the charges appropriately. The Court's decision underscored the need for thorough psychiatric assessments in cases where mental impairment is claimed as a defence.

Orders