R v Minani

CATCHWORDS: Mental Health (Criminal Procedure) Act 1990 - accused not fit to be tried - special hearing of criminal charge - notice of election for special hearing to proceed before judge alone - judge to be satisfied that accused, before making election, sought and received advice in relation to that election from barrister or solicitor (s 21A) - person making election must understand what is involved in such an election - obligation on judge is to be satisfied that the barrister or solicitor was satisfied that the accused properly understood the nature of the election he was making - material in psychiatric reports on mental illness defence giving rise to some concern as to whether accused was fit to make the election - judge made no inquiries of solicitor giving advice as to whether any psychiatric assessment had been obtained of the accused's competence to make election - Section 21A not satisfied - not mere procedural irregularity, but error of such fundamental importance that order pursuant to s 7(4) of Criminal Appeal Act 1912 inappropriate - purpose of s 7(4) - relevance of evidence relating to mental illness to specific intent

Criminal Appeal Act 1912 Criminal Procedure Act 1986 LEGISLATION CITED: Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990

Fleming v The Queen (1998) 197 CLR 250 Hawkins v The Queen (1994) 179 CLR 500 Regina v Mifsud, CCA, unreported, 8 November 1995 CASES CITED: Regina v Riddell [2003] NSWCCA 251 Regina v Williams [2004] NSWCCA 224 Regina v Zvonaric (2001) 54 NSWLR 1

Ms J Manuell, Ms L Goodchild (Appellant) COUNSEL: Mr J Bennett SC (Crown)

Catherine Hunter (Sydney) (Appellant) SOLICITORS: S Kavanagh (Public Prosecutions)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/86

SPIGELMAN CJ HUNT AJA HOWIE Friday 8 July 2005 REGINA v MINANI Headnote

The appellant was charged with wounding with intent to inflict grievous bodily harm. He was found unfit to be tried, and a special hearing pursuant to the Mental Health (Criminal Procedure) Act 1990 was directed. The appellant made an election in accordance with that Act for the special hearing to proceed before a judge alone. Section 21A of that Act requires the judge to be satisfied that, before making that election, the appellant sought and received advice in relation to that election from a barrister or solicitor. Held, s 21A places an obligation on the judge to satisfy him or herself that the barrister or solicitor was satisfied that the appellant properly understood the nature of the election he was making. R v Mifsud, CCA, unreported, 8 November 1995 applied. There was material in psychiatric reports relating to the defence of mental illness giving rise to some concern as to whether the appellant was competent to make the election. The judge made no inquiries of those appearing for the appellant as to whether they had obtained any psychiatric assessment of his competence to make that election. The psychiatric reports tendered in relation to the defence of mental illness did not address the issue. The appellant was found not guilty on the ground of mental illness. Held, the judge was in error in ordering the special hearing to proceed without a jury. The Crown submitted that, if an order quashing the determination were to be made, an order should also be made pursuant to s 7(4) of the Criminal Appeal Act 1912, that the appellant be detained in strict custody in such place and in such manner as is thought fit, rather than ordering a new special hearing. Held, the error was not a mere procedural irregularity. It was an error of such fundamental importance that it will be inappropriate to make an order pursuant to s 7(4). Section 21(1) of the Mental Health (Criminal Procedure) Act requires a special hearing to be conducted as nearly as possible as if it were a trial of criminal proceedings. The Crown's evidence consisted of the tender of the witnesses' statements without cross-examination. This was at the invitation of the appellant. The version given by the appellant to the police and the psychiatrist did not dispute the version given by the witnesses. Discussion of Regina v Zvonaric (2001) 54 NSWLR 1 and s 190(2)(b) of the Evidence Act 1995. Section 21B of the Mental Health (Criminal Procedure) Act requires the judge, where there is no jury, to include in his or her determination the principles of law applied and the findings of fact on which the judge relied. Held, even in a case where the facts stated in a Statement of Facts tendered establish every element of the crime charged, the judge must formally make each of the findings necessary for establishing that the accused committed the crime charged, whether or not they were in dispute. The Statement of Facts did not establish an intention to inflict grievous bodily harm. The Crown conceded that the most the material would support was an intention to cause injury to the victim. Moreover, the appellant's mental illness was relevant to his specific intent: Hawkins v The Queen (1994) 179 CLR 500. The judge did not identify that principle of law as one he applied in his reasoning processes, as required by s 21B of the Mental Health (Criminal Procedure) Act. Held, the judge was in error in finding that the appellant had the specific intent of inflicting grievous bodily harm. He also erred in not complying with the requirement of s 21B.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/86 SPIGELMAN CJ HUNT AJA HOWIE J Friday 8 July 2005 REGINA v MINANI

2 HUNT AJA: The appellant, Habura Minani, was charged with maliciously wounding Kees de Bruin with intent thereby to do grievous bodily harm to him.

3 A question as to the appellant's fitness to be tried arose at the outset of the police investigation into the circumstances in which Mr de Bruin was wounded. In accordance with s 9 of the Mental Health (Criminal Procedure) Act 1990, the Attorney General determined that an inquiry into that issue should be conducted before the appellant was tried on the charge against him. That inquiry was held with a jury pursuant to s 10 of that Act, and the jury found that the appellant was not fit to be tried. After various further steps taken in accordance with the statute (to which reference is made later), a special hearing of the charge was held without a jury. Judge McGuire determined that the appellant was not guilty of maliciously wounding Mr de Bruin with intent, on the ground of mental illness. It is agreed between the parties that the issue of mental illness was not set up as a defence by the appellant at the special hearing, and accordingly that an appeal from that determination lies to this Court pursuant to s 5(2) of the Criminal Appeal Act 1912.

4 The charge of malicious wounding with intent arose out of an argument between the appellant and the victim when they were staying with three other men in a room at a backpacker's hostel in Sydney. The appellant accused the victim of stealing his cigarettes, which the victim denied. The appellant then searched the victim's backpack and he removed a camera from the backpack. The victim successfully recovered the camera and locked it in his personal locker. The victim left the room to do other things within the hostel and, on his return, there was a verbal altercation between him and the appellant. The appellant moved quickly towards the victim and stabbed him a number of times with a pocket knife. The victim suffered three stab wounds, to his left chest, his left groin and his left wrist. The appellant subsequently said "I'll kill you". The victim was taken to hospital where he underwent surgery to repair his wounds.

5 There was no dispute as to any of these facts, and the appellant has made admissions to the police and to psychiatrists that he did indeed stab the victim.

6 The appellant comes from Burundi but lost his family in the genocide during the conflict in Rwanda and Burundi in 1994. As a young person, he had witnessed the most appalling events during that conflict, including his own Hutu family being persecuted, beaten and then killed by the Tutsis. He escaped to South Africa and subsequently stowed away on a ship which was bound for Australia, where he jumped ship in Adelaide. He has since been granted refugee status in Australia.

7 Pursuant to the mental health legislation in South Australia and Western Australia, the appellant was institutionalised in both States for various periods after his arrival. He told Dr Westmore, a psychiatrist who examined him after he had been charged with the present offence, that as a result of a message he received from the television he believed that the New South Wales Government was allowing the community to stop "African mental processes" by the use of technology. He had purchased the pocket knife because he thought that it was "like a war was going on". On the day in question, he had been photographed when at Circular Quay by a Chinese woman. When he returned to the hostel, he believed that the occupants of his room were discussing the Chinese woman, and that Mr de Bruin had been paid $25,000 by the State Government to punish him. He was feeling sick, and he had searched through the victim's backpack to find what technology the victim was using to control his mental processes. He told the police investigating the incident that he was angry with the victim for having caused "bacteria" to enter his mind.

8 There followed a series of procedures under the Mental Health (Criminal Procedure) Act. A hearing with a jury was held into the appellant's fitness to be tried on the charge of malicious wounding with intent. The appellant maintained at that hearing that he was fit to be tried, and he made it clear that he did not wish a defence of mental illness to be raised. The psychiatric evidence was unanimous that he was not fit to be tried, and the jury so found. However, the Mental Health Review Tribunal determined, after some confusion, that the appellant would become fit to be tried within twelve months. This required another hearing later into the appellant's fitness to be tried. A jury again found that the appellant was not fit to be tried. The appellant continued to maintain that he did not suffer from any psychiatric illness.

9 There followed some considerable delay by the Mental Health Review Tribunal in determining the likely period over which the appellant's unfitness to be tried would continue, but eventually it determined that the applicant would not become fit to be tried on the charge for a period of at least twelve months. The Attorney General thereupon directed that a special hearing be conducted in relation to the charge.

10 A special hearing into a criminal charge pursuant to the Mental Health (Criminal Procedure) Act is one conducted as nearly as possible as if it were a criminal trial on that charge, but it proceeds on the basis that the accused's unfitness to be tried is presumed not to be an impediment to the accused's representation by counsel or solicitor. The accused is taken to have pleaded not guilty and his or her right to challenge jurors may be exercised by the counsel or solicitor. Any defence which could have been raised in a criminal trial may be raised, the accused may give evidence, and the jury must be directed fully at the commencement of the hearing as to the special nature of the procedure and the legal and practical consequences of each verdict which is available. (See, generally, s 21.) 11 Prior to the trial, the appellant filed a notice of election for the special hearing to proceed before a judge alone. The notice of election states: I have before making this election sought and received advice in relation to the election from Ross Mayne, Senior Solicitor Advocate and Cliff Hammond, Solicitor both from the Legal Aid Commission of NSW. Such a requirement is imposed by s 21A of the Mental Health (Criminal Procedure) Act which provides: 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.

12 An affidavit has since been sworn by Mr Hammond stating that he had attended with Mr Mayne on the appellant for a conference at the Long Bay Hospital. He says that Mr Mayne explained to the appellant that a special hearing was to be held as a result of the finding that he was unfit to be tried. The appellant indicated that he understood that fact. Mr Mayne had further explained to the appellant what a special hearing entailed and the possible outcomes which could eventuate at the conclusion of the hearing. Mr Hammond says that the appellant understood this. The affidavit then records the following questions by Mr Mayne and the appellant's answers: You have the right to have a judge alone or a judge and jury on the 21st of June when you go to Court. Do you understand that question? A. Yes. It may well be in your best interest to have a judge alone because a judge alone would probably understand the issues regarding your mental health better than a jury of twelve ordinary people. Do you understand that? A. Yes I understand. I want you to know Mr Minani that it is entirely a matter for you to decide it is not up to us (indicating Mr Hammond and himself)? A. Look I've heard what you have said and I want to go with a judge alone. Later during the conference, the appellant again indicated his desire to have his matter proceed by way of judge alone.

13 On behalf of the appellant in this Court, it is submitted that it is 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. Reliance is placed upon the decision of this Court in Regina v Mifsud, unreported, 8 November 1995. That case was concerned with s 11A of the Mental Health (Criminal Procedure) Act, which permits an election to be made by the accused to have a judge alone determine the issue of his fitness to be tried. It is relevantly in exactly the same terms as s 21A. 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.

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.

17 Regina v Mifsud was subsequently distinguished by one member of this Court in an appeal concerned with cognate legislation, s 132 of the Criminal Procedure Act 1986, which is relevantly in the same terms as s 21A(1) of the Mental Health (Criminal Procedure) Act. This was in Regina v Birlut (1995) 39 NSWLR 1 (s 132 was then numbered s 32), in which one complaint was that the trial judge had failed to state expressly that he was satisfied that the accused in that case had sought and received advice from a barrister or solicitor in relation to the election to be tried by a judge alone before making the election. Kirby P (at 10-11) described Regina v Mifsud as "plainly distinguishable" from the case there under consideration, and rejected the complaint on the basis that (i) the judge had before him an affidavit from the accused asserting that he had received the appropriate advice, (ii) such affidavit had been tendered with the full knowledge of his legal representatives, and (iii) it should therefore be inferred that the judge was in fact satisfied. The judge's failure to state so expressly was therefore not fatal to the validity of the proceedings. Gleeson CJ (with whom Dowd J agreed) agreed with the orders proposed by Kirby P on the substantive grounds of appeal, and said nothing about this specific complaint.

18 I agree entirely with Kirby P that the two cases are "plainly distinguishable", as indeed are the purposes of each of the two legislative provisions despite the relevant identity of their terms. As Gleeson CJ made it abundantly clear in the passage already quoted, s 11A is "[b]y hypothesis concerned with the making of an election by a person whose fitness is in question because of some mental disorder". That is the election by an accused to have a judge alone determine the issue of his fitness to be tried. The election made pursuant to s 21A, to have the special hearing determined by a judge alone, arises after the accused has already been found unfit to be tried. The applicability of Regina v Mifsud to s 21A is even greater.

19 In the present case, there was material in the psychiatric reports tendered in the special hearing which gave rise to some concern as to whether the appellant was fit to make the election for a judge-alone hearing. He had been diagnosed as suffering from chronic paranoid schizophrenia with formal thought disorder and delusional thoughts. Dr Westmore, who had examined the appellant on his behalf, said that the appellant's lack of insight into his mental illness was depriving him of the capacity to understand or comprehend that he would be eligible for a defence of mental illness and that, because of that mental illness, he was unable to consider that as an option in a non-delusional way.

20 There was other material which had been tendered in the fitness to be tried hearing which was also relevant to this issue. The appellant told Dr Riznik that the stabbing had been accidental "in the strictness", a term he was apparently unable to explain, but which suggests that the applicant's insight into these matters was affected by his mental illness to some extent. Dr Riznik also formed the view that the appellant was unable to make a proper and informed opinion as to the availability of the defence of mental illness. On the other hand, when Dr Riznik explained to the appellant on both occasions he saw him that the purpose of his psychiatric assessment was to obtain information about his mental state and to provide the court with a report, so that the information he supplied would not be confidential, the doctor said he was able to form the view that the appellant understood that warning and that he was competent to consent to the information being disclosed.

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. 24 There are two further grounds of appeal filed. Although it is not in the event necessary to resolve either of those grounds to dispose of the appeal, it is appropriate, in my view, that something be said in relation to each of them.

25 The second ground of appeal is that the judge erred by accepting all of the evidence relied on to establish the Crown case without requiring any of that evidence to be sworn. As already stated, s 21(1) of the Mental Health (Criminal Procedure) Act provides that a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. Prior to the trial, the Legal Aid Commission informed the Crown as follows: Mr Minani has indicated to us that he will not require any police witnesses or witnesses from the hostel to attend on 21/6/04 to give evidence. The defence is content to have the relevant statements either tendered or read onto the record and do not require those witnesses to attend.

26 Those statements were tendered after the formal arraignment of the applicant and the entry of a plea of not guilty on his behalf. They were not objected to, and there was no application in the special hearing for the witnesses to be cross-examined. In fact, most of the witnesses to the events in the hostel had returned overseas. There was no real dispute in any of the versions given by the applicant to the police and the psychiatrists as to the evidence those witnesses could give. In those circumstances, the criticism by this Court (expressed in Regina v Zvonaric (2001) 54 NSWLR 1 at [3], [19]) of any general practice of merely tendering witnesses' statements in a special hearing is not directly applicable.

27 Nevertheless, it is necessary to say again that the provisions of s 21(1), that a special hearing is to be conducted as nearly as possible as if it were the trial of criminal proceedings, require a degree of formality: Regina v Zvonaric at [3]. Section 190 (2)(b) of the Evidence Act 1995 provides that the consent of an accused person to the waiver of the rules of evidence in criminal proceedings is not effective unless (a) that person has been advised to do so by his or her legal representative, or (b) the court is satisfied that the accused person understands the consequences of giving that consent. Those are alternatives; either will suffice. In a special hearing, there is necessarily a considerable reliance by the court on the performance of the legal representatives of their professional obligations and duties to the court: Ibid at [16] - [17]. This is because of the presumption in s 21(2) of the Mental Health (Criminal Procedure) Act that the fact that the accused person has been found unfit to be tried is not to be an impediment to that person's representation. Because of the applicant's success on his first ground of appeal, it is unnecessary to consider whether those obligations and duties were fulfilled on this occasion.

28 The third ground of appeal is that the judge erred by not linking the facts of the case with the relevant principles of law in his determination. Section 21B(2) of the Mental Health (Criminal Procedure) Act provides: A determination by a judge in any such special hearings must include the principles of law applied by the judge and the findings of fact on which the judge relied. This is the same requirement as that placed on the judge in a criminal trial without a jury by s 133(2) of the Criminal Procedure Act . The High Court has emphasised the importance of compliance with this "legal imperative": Fleming v The Queen (1998) 197 CLR 250 at [27]. (Section 133(2) was then numbered s 33(2).) A failure to comply with that legal imperative becomes a wrong decision on a question of law within the terms of s 6(1) of the Criminal Appeal Act : Ibid at [27]. What must be exposed by the judge is the reasoning process linking the principles of law and the findings of fact, justifying those findings and, ultimately, the verdict given: Ibid at [28]. It follows that these requirements are also imposed in relation to the determination by the judge in a judge-alone special hearing.

29 In the present case, having recited the statement of facts which had been tendered by the Crown, the judge said only: There is no dispute with regard to the matters raised in the statement of facts. The sole issue raised for my determination is whether Manini is not guilty on the ground of mental illness.

30 There was indeed no dispute with regard to the factual issues which had been put forward in the statement of facts. However, even in a case where the facts stated in such a document do establish every element of the crime charged, the judge must formally make each of the findings necessary for establishing the guilt of the accused of the crime charged, whether or not they were in dispute. That is what is required by both s 133(2) of the Criminal Procedure Act in every judge-alone trial and by s 21B(2) of the Mental Health (Criminal Procedure) Act in every judge-alone special hearing: Fleming v The Queen at [25].

31 In the present case, however, the facts stated did not establish one of the ingredients of the crime charged, that the appellant intended to do grievous bodily harm to the victim. There was no admission made or recorded in the documents that the appellant intended to do so. The victim's statement to the police did record a threat made twice by the appellant, after the stabbing, "I'll kill you" (this was not reproduced in the statement of facts), but this would be an unsafe basis (in the light of the appellant's mental illness and his ambiguous statement to the psychiatrist that the stabbing was accidental) for a finding that beyond reasonable doubt the appellant had intended to do grievous bodily harm to the victim when he had stabbed him before he made that statement. It was conceded by the Crown that the most the material would support was an intent to cause injury to the victim. That is not an intention to do grievous bodily harm to the victim. 32 Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent.

33 The failure by the judge to comply with the mandatory requirement of s 21B(2) of the Mental Health (Criminal Procedure) Act to identify in his determination the principles of law he applied was not only itself an error of law. It also illustrates the utility of the requirement, as a reference by the judge to the principle stated in Hawkins v The Queen should have prevented him from making the further error of law in finding that the appellant had the specific intent of inflicting grievous bodily harm.

34 The appellant submitted that, in the event that the judge's determination is set aside, he should be acquitted and released from custody. This submission is based on a new psychiatric report from Dr Wilcox, dated 19 June 2005. She had been his treating doctor at various times since he was charged. She reports that the appellant's mental state has definitely improved over the past four years, and that he "is now more able to acknowledge that he has an illness and that he was unwell when the offence occurred". However, Dr Juranovich, his current treating doctor, believes that the appellant still harbours some concern about the government, but Dr Juranovich has said that, if the appellant is released into the community, he would be prepared to make the appellant an involuntary patient under the Mental Health Act 1990. Dr Wilcox adds that her preferred option is that the appellant be given a short sentence during which his treating team will have the opportunity of obtaining a Community Treatment Order.

35 On behalf of the appellant it is argued that, as the period during which he has been in one form of custody or another since the stabbing is already sufficient loss of liberty as a punishment for that stabbing, the interests of justice would be served better by an acquittal and release into the community. However, his counsel in this appeal very realistically conceded that, even if the appellant had not been charged, he was at the time of the stabbing clearly suffering from a mental illness, that he is still in that condition (although to a lesser extent), and that he would have been in some form of civil detention throughout the whole of that time. In those circumstances, the interests of justice do not, in my view, require an acquittal and release into the community, even on condition that the appellant is to be made an involuntary patient under the Mental Health Act. 36 On the other hand, the Crown has applied for orders pursuant to s 7(4) of the Criminal Appeal Act, which provides: If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant's action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate.

37 This provision was inserted in the Act in 1986, although the final words commencing "or may make such other order …" were added subsequently. It replaced the original s 7(4) in 1912 statute, which was to the same effect although using the terminology of insanity and referring to the Lunacy Act 1898. Because of the deeming provisions in s 5(2) of the Criminal Appeal Act, an appeal from a special hearing under the Mental Health (Criminal Procedure) Act falls within the terms of s 7(4). Although there appears to have been no discussion in any of the cases, the primary purpose of s 7(4), it seems to me, is that, where there has been a guilty verdict in any trial notwithstanding the issue of mental illness raised, the provision permits this Court, in the appropriate case, to determine the defence of mental illness for itself, thereby saving the whole matter being sent back for a new trial. Obviously, it would not usually be appropriate for this Court to exercise that power where the mental illness defence depended on issues of credit, or was strongly disputed by opposing psychiatric evidence.

38 In the present case, there was a determination that the appellant was not guilty on the ground of mental illness. If that determination is to be quashed, the usual order would be for a new special hearing. The Crown has submitted that, in a case where the basis for quashing the determination is some irregularity in the procedure, s 7(4) would permit an order to be made in such a case in order to save the whole matter being sent back for a new special hearing, if such an order were otherwise appropriate to be made. I would accept that submission, with the same caveat already expressed concerning the cases where the mental illness defence depended on issues of credit, or was strongly disputed by opposing psychiatric evidence. It was a procedural irregularity which led this Court to act pursuant to s 7(4) in Regina v Riddell [2003] NSWCCA 251, and perhaps also in Regina v Williams [2004] NSWCCA 224.

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. 40 During the hearing of this appeal, there was some discussion with counsel for the appellant as to whether, in the event that this Court decided that there should be a new special hearing, the interests of the appellant would be better served were he to abandon his appeal, because of the delays necessarily inherent in the need for the Mental Health Review Tribunal to determine whether a new inquiry into his fitness to plead is required, and because of the near inevitability that a new special hearing, whether before a judge alone or with a jury, would produce the same result as the last. Counsel for the appellant sought an adjournment of the hearing of the appeal in the event that a new special hearing were to be ordered in order to confer with her client in relation to those matters.

41 In my view, the following orders should be made fourteen days after the delivery of this decision to enable the appellant, if he wishes, to abandon the appeal.

1. The appeal is upheld.
2. The determination made by Judge McGuire is quashed. 3. Subject to any determination made by the Mental Health Review Tribunal, there is to be a fresh special hearing of the charge against the appellant. 4. In the event that the appellant is held to be fit to be tried, there is to be a trial of the charge against him. These orders will be made formally on 22 July 2005 in the event that the appellant does not file a notice of abandonment of his appeal before that date.

42 HOWIE J: I agree with the orders proposed by Hunt AJA for the reasons given.

20/07/2005 - appropriate should have been inappropriate - Paragraph(s) Second bottom line page 1 of headnote

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