New South Wales Court of Criminal Appeal CITATION : R v Smith [1999] NSWCCA 126 FILE NUMBER(S) : CCA 60723/97 HEARING DATE(S) : 20 May 1999 JUDGMENT DATE : 11 June 1999 PARTIES : Regina v Paul Thomas Smith JUDGMENT OF : James J at 1; Barr J at 68; Carruthers AJ at 69 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/31/0527 LOWER COURT JUDICIAL OFFICER : Twigg DCJ COUNSEL : RD Ellis (Crown) GP Craddock (Applicant) SOLICITORS : C K Smith (Crown) T A Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - unfit to be tried - special hearing - decisions about conduct of defence. ACTS CITED : Mental Health (Criminal Procedure) Act Mental Health Act 1990 DECISION : Extension of time to appeal granted - appeal against conviction dismissed IN THE COURT OF CRIMINAL APPEAL 60723/97 JAMES J BARR J CARRUTHERS AJ Friday 12 June 1999 REGINA v Paul Thomas SMITH JUDGMENT 1 JAMES J: This is an application brought by Paul Thomas Smith ("the appellant") for an extension of time in which to appeal and, if an extension of time is granted, an appeal by him against verdicts, which were given at a special hearing held in December 1995 under the Mental Health (Criminal Procedure) Act ("the Act") before his Honour Judge Twigg and a jury in the District Court, that on the limited evidence available at the special hearing the appellant had committed the offences charged, being two offences of aggravated sexual assault under s61J of the Crimes Act , committed on the same date 20 July 1993 against the same adult female complainant. The circumstances of aggravation on the first charge were that the appellant had maliciously inflicted actual bodily harm on the complainant. The circumstances of aggravation on the second charge were that the offence had been committed in company. 2 On 3 May 1994 another District Court judge, sitting alone without a jury, had found that the appellant was unfit to be tried on the charges of aggravated sexual assault. On 8 August 1994 the Mental Health Review Tribunal made a determination that the appellant would not become fit to be tried during the period of twelve months after 3 May 1994. Subsequently the Attorney General, acting under s18 of the Act, had directed that a special hearing be conducted. It was pursuant to this direction that the hearing before Judge Twigg took place. 3 The verdicts that on the limited evidence available the appellant had committed the offences charged were given in accordance with s22(1)(c) of the Act. An appeal lies to this Court from these verdicts by virtue of s22(3)(c) of the Act and the extended definition of the term "conviction" in s2 of the Criminal Appeal Act. 4 After the jury had returned their verdicts Judge Twigg on 22 February 1996 held that, if the special hearing had been an ordinary trial, the sentence he would have imposed on the first charge would have been a fixed term of penal servitude for one year from 20 July 1993 and the sentence he would have imposed on the second charge would have been a sentence of penal servitude for five years, consisting of a minimum term of three years commencing on 20 July 1994 and expiring on 19 July 1997 and an additional term of two years. It was suggested in the appellant's written submissions that what his Honour did on 22 February 1996 may not have been in accordance with s23 of the Act but it is unnecessary to explore this suggestion further on the present application and appeal, which are concerned only with the appellant's convictions. 5 On the hearing of the appeal the Court received an affidavit by a solicitor employed by the Legal Aid Commission, to which was annexed a letter from the Mental Health Review Tribunal. This letter disclosed that on 17 February 1999, the Mental Health Review Tribunal, pursuant to s89(1) of the Mental Health Act 1990 , classified the appellant as a continued treatment patient and also, pursuant to s131 of the Mental Health Act 1990 , made a community treatment order releasing the appellant into the care of the Central Coast Area Mental Health Service. On 6 May 1999 this order was varied, so as to transfer the appellant's care to the Kempsey Mental Health Service. 6 The complainant gave evidence at the special hearing and her evidence may be briefly summarised as follows:- 7 In July 1993 the complainant was living in an Aboriginal settlement close to the town of Moree. On the afternoon of 20 July 1993 she left her home to walk to the Moree District Hospital to see her brother, who was a patient in the hospital. As she was walking, she met three brothers named Swan and the appellant, all of whom she knew. The complainant and one of the Swan brothers, who was named Desmond but known as "Boy-Boy", bought a flagon of port at a hotel. The group was joined by another male, who the complainant did not know and who was apparently a juvenile. The whole group walked across a stock bridge over a river. Everybody in the group then drank some port out of the flagon. After a few minutes the complainant said that she wanted to go to the hospital and she started walking back across the bridge. 8 As the complainant was walking back across the bridge, the appellant punched her more than once in the face with his closed fist, causing the complainant to fall. The appellant then forcibly removed most of the complainant's clothing, dragged her across the bridge, pinned her to the ground and had penile-vaginal sexual intercourse with her without her consent. 9 The appellant said to Desmond Swan "do you want a go" and Desmond Swan had sexual intercourse with the complainant without her consent, while the appellant was lying on the complainant's shoulder, restraining her. The appellant then attempted to have the complainant fellate him but the complainant would not open her mouth. The appellant punched the complainant again. The other two Swan brothers then had sexual intercourse with the complainant without her consent, while the appellant continued to restrain the complainant by lying on her shoulder. The appellant then had sexual intercourse with the complainant again, without her consent The other unidentified person did not take any part in the assaults on the complainant. 10 After the appellant had sexual intercourse with the complainant the second time, the group of males moved away from the complainant. The complainant jumped up and ran, picking up some of her clothing off the bridge. The complainant continued running and came across a male cousin of hers. The cousin hit Noel Swan, who had been chasing the complainant. The complainant made a complaint to her cousin about what had happened. She was taken to a police station and reported the offences. She was taken to a hospital and examined by a Dr Mahoney. 11 At the special hearing none of the three Swan brothers or the other unidentified male person were called to give evidence and Judge Twigg in his summing-up gave a form of Jones v Dunkel direction against the Crown, by reason of the Crown not having called these persons as witnesses. 12 The complainant's evidence was, however, supported in a number of respects by evidence from other persons, who were called as witnesses. 13 A taxi driver gave evidence that at about 5.15 pm on the afternoon of 20 July 1993, as a result of a radio booking, he had picked up the three Swan brothers and the appellant, all of whom he knew, and had dropped them in Moree at about 5.30 pm. 14 The complainant's brother gave evidence that at some time between 6 o'clock and 7.30 on the evening of 20 July 1993 he had seen the three Swan brothers and the appellant together in Moree. He had known the three Swan brothers and the appellant all his life. 15 The complainant's cousin gave evidence that he had seen the complainant, Noel Swan and the appellant together on the night of 20 July 1993, that Noel Swan was punching the complainant, that the complainant was screaming, that he himself had punched Noel Swan and that Noel Swan and the appellant had then run off. The cousin observed that the complainant had no clothing on the lower part of her body, that her face was bleeding and that she had mud on her arms and legs. The complainant and her cousin got into a car driven by a woman named Phyllis Brown. In the car the complainant told her cousin "Noel, Paul and them raped me". 16 Phyllis Brown gave evidence of the complainant making a complaint. She said that she had driven the complainant and her cousin to a house where the complainant's mother was and had then driven the complainant and other persons to the police station. 17 A number of police officers gave evidence that at about 8 o'clock on the evening of 20 July 1993 the complainant's parents and then the complainant entered the police station. The complainant had no clothing on, apart from a jumper and a jacket (the jacket had been given to her by her cousin), she had no shoes on, she had mud on her legs, she had swelling around her right eye and jaw and dry blood around her mouth and nose and she appeared very upset and distressed. According to a notebook entry made by a police officer within five minutes of the complainant entering the police station, the complainant said inter alia: "I was stripped naked, there were three males… Noel Swan, Paul Smith and Lloyd Swan…they f- me.. all three of them". 18 Dr Mahoney gave evidence that at about 10 pm on the night of 20 July 1993 he had attended the emergency department at the Moree District Hospital and examined the complainant. She was very distressed, she had clothing only on the upper part of her body, her legs and feet were covered in mud, she had bruising and abrasions on her face and other parts of her body, her right shoulder was tender and there were swelling and abrasions of her genitalia. 19 In cross-examination Dr Mahoney said that, in his opinion, the injuries he had observed were too severe to be consistent with "fairly violent" consensual intercourse. The following question and answer occurred in Dr Mahoney's cross-examination:- "Q. Let me put to you this hypothetical question, would injuries of that sort be consistent with a person who had had five or six instances of (consensual) intercourse within a short time? A: I wouldn't have thought so, but possible. I doubt it, but possible. I would say unlikely really. Certainly on the external aspects possibly, but not with the - she had very substantial internal injuries…" 20 An uncle of the Swan brothers gave evidence that at about 9 o'clock or half past nine on the evening of 20 July 1993, Noel Swan and the appellant had arrived together at his house. 21 When spoken to by the police on 21 July 1993, the appellant denied that on the previous night he had been with the Swan brothers or had seen the complainant. The appellant declined to take part in a recorded interview. 22 At the special hearing the appellant did not give evidence. Because he had been charged before 10 June 1994, he had the right to make an unsworn statement at the special hearing but he did not do so in the defence case, as it was presented before Judge Twigg commenced his summing up. In the defence case one witness was called on behalf of the appellant, who said that she had seen the appellant on the evening of 20 July 1993 after about 8 o'clock and that he had not looked dishevelled or "roughed up" to her. 23 The notice of application for an extension of time in which to appeal was not lodged until late December 1997, almost two years after the time for lodging an appeal had expired. 24 Counsel for the Crown submitted in written submissions that the Court should not grant an extension of time in which to appeal. It was contended that the delay in lodging an appeal was considerable, that under the provisions of the Act the verdicts returned by the jury did not count as convictions, except for certain very limited purposes, that the applicant had been released from custody and that the entire "limiting term" indicated by Judge Twigg would soon expire. It was also submitted that no explanation had been given for the delay in lodging an application for an extension of time. 25 On the hearing of the appeal the Court received another affidavit from the same solicitor employed by the Legal Aid Commission. In the affidavit the solicitor gave evidence of events which had happened after the Legal Aid Commission had received, on 5 January 1998, copies of the appellant's notice of application for an extension of time in which to appeal and notice of appeal. There had been a long delay after January 1998 before the transcript of the special hearing had become available and a further delay in receiving advice from counsel on whether there was any merit in the appeal against conviction. 26 The solicitor's affidavit did not offer any explanation for the delay in lodging the two notices. The deponent said in her affidavit:- "When I first spoke to the appellant I could not induce him to tell me the reasons for delaying the bringing of this appeal, save for discussion regarding new evidence. I am not satisfied that he has any appreciation that failing to bring his appeal within a specified time limit is in any way significant". 27 The reasons advanced by the Crown are strong reasons for not extending the time within which an appeal could be brought. However, it has to be borne in mind that the appellant is a person who had been unfit to be tried and who has apparently continued to suffer from mental disabilities. It is appropriate for the court to undertake an examination of the merits of the appeal, before deciding whether an extension of time in which to appeal should be granted. 28 There is only one ground of appeal in the appellant's notice of appeal against conviction, which is:- The verdicts that upon the limited evidence available the appellant committed the offences charged constitute miscarriages of justice. 29 In order to appreciate the matters sought to be relied on by counsel for the appellant in support of this ground of appeal, it is necessary to refer to a number of parts of Judge Twigg's summing-up. 30 Judge Twigg commenced his summing-up on Friday 8 December 1995. After saying a number of introductory things, his Honour excused the jury until the following Monday 11 December. In the absence of the jury the Crown Prosecutor said:- "I was a bit concerned about my friend telling the jury that this person had been in custody for two years…. I don't know whether he is entitled to tell the jury that". 31 Judge Twigg then said to counsel for the appellant at the special hearing, "what you have put to them is to get a bit of sympathy for your client…" 32 His Honour asked counsel for the appellant at the special hearing, whether there was any evidence that the appellant had been in custody since July 1993. Counsel replied that there was evidence that the appellant had been taken into custody in July 1993 but acknowledged that there was no evidence before the jury that the appellant had been in custody since July 1993. Counsel said that the appellant had in fact continuously been in custody since July 1993, bail not having been granted. 33 The trial judge then took up with counsel what comment he should make on the appellant's failure to give evidence at the special hearing. The transcript of the summing-up continues as follows:- "HIS HONOUR: Don't you think you should have said he had the right to give evidence? Yes, Mr Smith, do you want to say something? ACCUSED: I want to give evidence, but he won't let me. Every time.. (not transcribable) .. he gets it wrong every time, so I want to give evidence. HIS HONOUR:: That's a matter you must discuss with your legal advisers. I've given you every opportunity to discuss-- ACCUSED: Seems like he's been hearing voices. HIS HONOUR: Mr Coombs, I'll give you an opportunity to speak to your client now and on the weekend, if you wish, in the light of what he said". 34 This Court received an affidavit from counsel who was counsel for the appellant at the special hearing. No objection was taken by the Crown to the Court receiving this affidavit. In this affidavit counsel said that he had conferred with the appellant, after the court had adjourned on 8 December 1995. The appellant demanded that he be allowed to address the jury. Counsel told the appellant "that the time had passed for this and that, in any event, I strongly advised him not to". Counsel's affidavit continued as follows:- "He (the appellant) had become increasingly agitated and disordered as the hearing had proceeded and I formed the view that he had not been getting adequate medication. In particular I recall that at times he had screamed, spat and bashed his hands against the cell walls. On Monday 11 December I asked his Honour whether we could discuss a matter in chambers before the hearing continued. I thought prudent to inform the judge of Mr Smith's request. Myself and the Crown Prosecutor discussed with his Honour in chambers the difficulties with Mr Smith speaking to the jury. I spoke generally about the fact that Mr Smith was suffering from a mental condition and had been found unfit. I explained to his Honour that I was not willing to make the application for Mr Smith to speak to the jury. I said further that his Honour was entitled to refuse the request made by Mr Smith, given the stage of the hearing. His Honour indicated that he would have to see what he thought. 35 In the courtroom but in the absence of the jury, counsel for the appellant, in response to a question from his Honour, said that he had no application to make. After the jury were brought into the courtroom, Judge Twigg proceeded with the summing-up. 36 In the summing-up on 11 December 1995 Judge Twigg referred to what counsel for the appellant had said in his address about the appellant having been in custody., His Honour said:- "In that aspect Mr Coombs put to you, at the very opening at his address, that the accused was taken into custody on 21 July 1993 where he has remained ever since. He went on to say 'if as the defence suggests to you that you cannot be persuaded beyond reasonable doubt that he is guilty of these offences, then you might think for a person who is unfit to plead that a terrible injustice has been done'. I must tell you that there is no evidence before you that the accused has been in custody since his arrest, but that having been said to you by Mr Coombs you must consider that the accused may have been detained for a multitude of reasons which are unknown to you and to me. They are matters that you and I are not able to consider and perhaps it is best for me to say to you that you ought to put out of your mind that factor…." 37 At the virtual conclusion of the summing-up and while the jury were still in the courtroom, the transcript records the following exchange as having taken place: "HIS HONOUR: Mr Coombs your client is attracting my attention, do you want to speak to him before I ask a question in front… ACCUSED: Your Honour, I want to speak to you myself. HIS HONOUR: Well, I'll allow you to-- ACCUSED: While the jury is here. HIS HONOUR: Yes well I'll allow you to speak to Mr Coombs about that, because it is a very important matter to be considered. So I am going to adjourn now Mr Smith-- ACCUSED: What about me? HIS HONOUR: Yes well I-- ACCUSED: I'm locked up for nothing. HIS HONOUR: Well I'll let you have that right, but let me ask the jury to go and we'll take the morning adjournment. (Accused speaking out loud while jury departing)" 38 In the absence of the jury the following exchange then occurred between the trial judge and the appellant:- "HIS HONOUR: Well Mr Smith, you must be guided by the lawyers who have greater knowledge than I have about this case. ACCUSED: What about me? HIS HONOUR: Well yes but-- ACCUSED: --say it in front of the jury? HIS HONOUR: Well that's a matter you and your lawyers must decide, I can't. ACCUSED: There was no ..(not transcribable) .. or anything.. (not transcribable).. we never done nothing to her. (not transcribable) .. fella, they're probably done it, he's the fella put all the charges on us. HIS HONOUR: Well I'm going to adjourn now, because Mr Coombs wants, I think, to talk further to you about that, I will leave that decision to him and you. I'll ask you to go down now and leave that till later". Counsel for the appellant said that he would have to confer with the appellant. 39 After a short adjournment the whole court, including the jury, reconvened. The transcript records:- "HIS HONOUR: Members of the jury now that you have had the morning tea adjournment, I did say to you I might call you back especially to say, retire to consider your verdicts and bring - have in mind the special findings but I ask you to come back particularly. Mr Coombs do you have an application to make on behalf of the accused? COOMBS: No, I don't have an application your Honour. HIS HONOUR: Mr Smith do you want to say something to the jury? ACCUSED: Yeah HIS HONOUR: Well I will grant you leave to make that application, even though the evidence is closed but I would ask of you to speak slowly so that it can be properly recorded and so that the jury can hear you. Stand up if you wish, that is you choice and I want to make sure that you keep your voice up because there is a microphone there that will take it all down. ACCUSED: ..(not transcribable) .. HIS HONOUR Whatever you wish, yes you go ahead. ACCUSED: I am not guilty of these charges-- HIS HONOUR: Just pause the lady is coming down. ACCUSED: I am not guilty of this charge, never - I would never rape her and for one thing she reckon we raped her and suppose to rape her till she had blood or whatever come out of her. No blood, no evidence of no blood on my trousers or anything, if that can't prove that I'm not guilty, well why no drag marks or anything in the sand. There's only two condoms here in the picture and there's supposed to be five, six of us or whatever. I have to say this because my lawyer won't say it for me, all he say is these big, long, hard words that no one can understand. The doctors took hairs and all that from us, they found nothing, we never done it. I don't know how they - them other three got found guilty, I reckon they shouldn't of and I hope they go mad when they get out. And that's all". HIS HONOUR: Now members of the jury, as I said to you earlier, Mr Smith has the right to remain silent and you are to take what he said into account along with all the other material, that is the sworn evidence and the exhibits that have been presented to you and bearing in mind what I told you earlier that he had been declared unfit to plead by a judge and jury. You should, though, take into account what he has said in those circumstances and in the light of the way it is presented to you. Mr Coombs, is there any further address you wish to make? COOMBS: No your Honour. HIS HONOUR: Or to raise any matters on what I have just put to the jury in the context in which I put it? COOMBS: No your Honour. HIS HONOUR: Mr Crown anything else you wish me to add? CROWN PROSECUTOR: No your Honour". 40 After these references to relevant parts of the summing-up, I can turn to the submissions made by counsel for the appellant on this appeal. 41 One submission made in the written submissions for the appellant was that, even though counsel for the appellant at the special hearing had in his address to the jury told the jury that the appellant had been in custody since July 1993, when there was no evidentiary basis for such an assertion, the trial judge should have said nothing about what the appellant's counsel had said and that what the judge had actually said, and particularly his Honour's remark "that the accused may have been detained for a multitude of reasons" could have been prejudicial to the appellant. 42 I do not consider that this submission should be upheld. As counsel for the appellant at the special hearing acknowledged, no evidence had been adduced that the appellant had been in custody since July 1993 and hence there was no evidentiary basis for the assertion made by counsel in his address. The trial judge inferred that counsel for the appellant at the special hearing had deliberately made this assertion, with the object of enlisting the jury's sympathy for the appellant and it seems to me that this was an inference his Honour was entitled to draw. It is true that in the summing-up Judge Twigg told the jury that the appellant might have been detained for a multitude of reasons but his Honour then proceeded to say that any such reasons would be unknown to both the jury and himself and the jury ought to put "that factor" out of their minds. In my opinion, these later directions removed any possible prejudice. 43 The principal submissions made by counsel for the appellant in support of the ground of appeal that the verdicts constituted miscarriages of justice related to Judge Twigg's decision to permit the appellant to make what was in effect a statement to the jury and to what the appellant had said to the jury in the concluding part of that statement. 44 It was submitted that Judge Twigg had made a wrong decision on a question of law, within the meaning of that expression in s6 of the Criminal Appeal Act, by permitting the appellant to make a statement to the jury, when the proceedings were not an ordinary trial but a special hearing under the Act, no application had been made by counsel for the appellant at the special hearing that the appellant should be permitted to make a statement and counsel for the appellant at the special hearing was, as Judge Twigg knew from the conference in private chambers, opposed to the appellant making a statement. It was submitted that if an accused person is represented at a special hearing, then, as a matter of law, for so long as the accused person is represented, all decisions about how the defence of the accused person should be conducted, including whether he should give evidence or make a statement (if that procedure is open to the accused person) are to be made by the legal representative, and not by the accused. At a special hearing, if there is any conflict between how the legal representative considers the defence case should be conducted and how the accused person considers the defence case should be conducted, then the legal representative's view prevails. If at a special hearing the accused wishes to give evidence or make a statement (if that procedure is open) but counsel for the accused informs the judge that in counsel's opinion the accused should not give evidence or make a statement, then the judge makes an error of law, if he permits the accused person to give evidence or make a statement. 45 In support of these submissions counsel for the appellant made the obvious point that an accused person at a special hearing has already been found unfit to be tried. Counsel referred to s21(2) of the Act which provides that at a special hearing an accused person must, unless the court otherwise allows, be represented by counsel or solicitor and the fact that a person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. It was put that if an accused person at a special hearing can make his own decisions about the conduct of his case and instruct his counsel accordingly, then it is likely that, even if some decisions made by the accused are rational and advantageous to his case, other decisions are likely to be irrational or disadvantageous. The approach advocated by counsel would have the practical virtue of removing the difficulty that counsel for an accused at a special hearing would otherwise have, of distinguishing between those of his client's instructions which he should follow and those of his client's instructions which, in his client's own interests, he should disregard. Counsel said that if an accused person can make his own decision to give evidence or make a statement, against the advice of his legal representative, then it is likely that in giving evidence or making a statement the accused, in the mental state he is in, will say something detrimental to his interests. It was submitted that this was what had in fact happened in the present case. 46 In my opinion, the problems raised in this case stem from the fundamental contradiction, or at least incongruity, in the concept of a hearing of a criminal charge against a person who is unfit to be tried. On the one hand, the accused person at a special hearing is a person who has been found unfit to be tried, as not meeting the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. These standards were stated by Smith J in R v Presser (1958) VR 45 at 48, in a passage which was approved by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. On the other hand, under the Act a special hearing is to be conducted, "as nearly as possible" and subject only to contrary provision in the Act, as if it were an ordinary criminal trial. 47 I have already referred to s21(2) of the Act, which provides that at a special hearing the accused must, unless the court otherwise allows, be represented by counsel or solicitor. At an ordinary criminal trial, if an accused is represented, then, although the legal representative gives advice, decisions on fundamental matters, such as whether the accused should give evidence or make a statement (if that procedure is open), are made by the accused person himself, who instructs his legal representative accordingly. At a special hearing the capacity of the accused to make decisions and give instructions is absent or at least diminished. Accordingly, it must follow, in my opinion, that at a special hearing the accused's legal representative has a greater power to make decisions, without receiving instructions from his client, than would be the case in an ordinary trial. In many cases, it will be impossible for the accused's legal representative to obtain instructions. However, I have reached the conclusion that I should not accept the submissions made by counsel for the appellant that at a special hearing the power to make decisions on behalf of the accused is exclusively vested in the accused's legal representative, to the exclusion of the accused himself, with the consequence that a judge at a special hearing makes an error of law, if he permits the accused to take a step which is opposed by the accused's legal representative. 48 In my opinion, even in the case of a person who has been found unfit to be tried, a court should be cautious in finding a legislative intent that an accused person has been deprived of fundamental rights which he would have had in an ordinary trial, in the absence of clear legislative provision to that effect. I do not consider that such a clear legislative provision can be discerned in the Act. 49 Section 21(1) of the Act provides that "except as provided by this Act" a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. As I have already stated, in an ordinary trial of criminal proceedings it is the accused and not his legal representative, who makes the decision whether he should give evidence (or make a statement). 50 Section 21(2) does lay down a general rule that an accused person must be represented at a special hearing. However, the subsection includes the words "unless the court otherwise allows", so that the legislature must be taken as having considered that there could be cases where a court could properly allow the accused person at a special hearing to appear for himself, in which case the accused person would necessarily have to make his own decisions about the conduct of his defence. 51 Section 21(3)(b) confers on an accused person's counsel or solicitor, if any, the power to exercise the rights of the accused person to challenge jurors or the jury. However, this provision conferring this particular power is the only provision in s21 expressly conferring on the accused person's legal representatives a power or right of the accused. 52 Paragraph (c) of ss(3) of s21, by way of comparison, speaks of the accused person (and not his counsel or solicitor) as having the power to raise a defence. Under paragraph (d) of ss(3) of s21 the accused person at a special hearing is entitled to give evidence (or, until the Act was amended, to make an unsworn statement). This entitlement is not expressed to be subject to the accused person having sought or received advice from his counsel or solicitor or to the accused person's counsel or solicitor having advised that the accused should give evidence (or make a statement). 53 Section 21(3)(d) can be compared with s21A of the Act. Under s21A of the Act the question whether the accused person has committed the offence charged (or some other offence) is to be determined by a 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". It is to be noted that under s21A it is the accused person who makes the election, and not his barrister or solicitor. It is a requirement of the accused person so electing that he should have sought and received advice but it would not appear to be a requirement that the election should have been made in accordance with that advice. 54 I do not consider that the Act provides that a respect in which a special hearing is not to be conducted as if it were an ordinary trial, is that all decisions about the conduct of the accused person's defence at the special hearing are to be made by the counsel or solicitor of a legally represented accused, to the exclusion of the accused. If an accused person at a special hearing is able to communicate and communicates that he wishes to give evidence (or make a statement), then I do not consider that the judge at the special hearing makes an error of law, if he permits the accused person to give evidence (or make a statement), even though counsel for the accused person is opposed to such a course. 55 I would reject the submission that Judge Twigg made a wrong decision on a question of law in permitting the appellant to make an unsworn statement to the jury, in the absence of an application by the accused's counsel and against the advice of the accused's counsel. 56 The next submission made by counsel for the appellant was that, even if Judge Twigg had not erred in law in deciding to permit the appellant to make a statement, nevertheless his Honour had erred in law in the manner in which his Honour had made and given effect to that decision. It was submitted that the procedure which his Honour should have adopted would have been to send the jury out of the courtroom and in the absence of the jury to have enquired of the appellant whether the appellant wished to apply to make a statement, to have decided any application the appellant made and if an application by the appellant to make a statement at that late stage of the proceedings was granted, to have adjourned the proceedings, so as to have enabled counsel for the appellant to participate in the preparation of the statement. 57 I do not consider that Judge Twigg erred in law in adopting the procedure he did. The appellant clearly wished to speak directly to the jury. The jury already knew, from what had been said in their presence, that the appellant wished to speak himself to the judge and the jury. Counsel for the appellant knew that the appellant wished to make a statement to the jury and had informed Judge Twigg that he (counsel) did not wish to make any application and was opposed to the appellant making a statement. It was not suggested on the hearing of the appeal that there was anything further that counsel would have said about the appellant's application, which counsel was prevented from saying by Judge Twigg's prompt granting of the appellant's application. His application having been granted, the appellant himself did not ask for any further time in which to prepare a statement and the terms of the statement, brief though the statement is, suggest that the appellant had already collected his thoughts on what he wanted to say to the jury. In all the circumstances, including particularly the complaints which the appellant had made about his counsel, it seems to me improbable, if the proceedings had been adjourned after the appellant's application was granted, that the appellant would have been willing to let his counsel determine what was included in, and what was omitted from, the statement he was to make to the jury. 58 The final submission made by counsel for the appellant was that, even if Judge Twigg had not made any error of law in permitting the appellant to make a statement or in the procedure his Honour had adopted in making or giving effect to that decision, nevertheless a miscarriage of justice occurred by reason of the appellant, as a person who had been found unfit to be tried, making a statement, not edited by his counsel, which included the second last sentence of the statement. 59 Most of the statement made by the appellant was quite rational and made a number of points, which if they had any validity, would have tended to assist the appellant's defence of the charges. 60 However, counsel for the appellant submitted that the inclusion in the statement of the second last sentence:- "I don't know how they - them other three got found guilty, I reckon they shouldn't of and I hope they go mad when they get out" had led to a miscarriage of justice. The jury had not previously been informed that the alleged co-offenders (the three Swan brothers) had been tried and found guilty. It was submitted that the disclosure by the appellant that another jury had found the co-offenders guilty, which the other jury could only have done if it had accepted the complainant's evidence, would have bolstered the complainant's credibility in the minds of the appellant's jury. 61 It was also submitted that the hope the appellant expressed that the co-offenders would "go mad when they get out" would have been understood by the jury as a hope that the co-offenders would "get angry" (not that they would go insane), when they were released from custody. It was further submitted that the hope the appellant expressed would have been understood by the jury as a hope that the co-offenders would exact some kind of revenge, after they were released. 62 I would accept that the jury would have understood that the appellant was expressing a hope that the co-offenders would be angry, when they were released from custody. However, I would not accept that the jury would have understood that the appellant was hoping that they would exact some kind of revenge. 63 I would accept that in some cases where an accused person at a special hearing makes a statement or gives evidence a miscarriage of justice might result from something said by the accused person in making the statement or in giving evidence. 64 However, although it might have been preferable, in the appellant's interests, if the appellant had not disclosed to the jury that the co-offenders had been found guilty by another court and if the appellant had not expressed a hope that the co-offenders would be angry when they were released from custody, I do not consider that the inclusion of these matters in the appellant's statement led to a miscarriage of justice. 65 In the statement the appellant denied his own guilt. It is implicit in the appellant saying "the other three got found guilty" that the other three had denied their guilt and in the statement the appellant stated his opinion that the other three should not have been found guilty. A hope that the other three would feel angry was consistent with the appellant's assertion that they should not have been found guilty. 66 Whether the inclusion of these matters in the appellant's statement led to a miscarriage of justice has to be assessed in the light of the overwhelming evidence against the appellant, including the evidence supporting the credibility of the complainant, which I have summarised earlier in this judgment. The evidence of the complainant was supported by the evidence of persons who had seen the appellant and the Swan brothers together before and after the assaults, by the evidence of Dr Mahoney and by the evidence of other witnesses who had observed the condition of the complainant after the assaults. The credibility of the complainant was further supported by her prompt complaints naming the appellant to her cousin and to the police. 67 I would be prepared to grant an extension of time in which to appeal, notwithstanding the long unexplained delay in lodging the notice of application for an extension of time, but in my opinion the only ground of appeal relied on should not be upheld and the appeal against conviction should be dismissed. IN THE COURT OF CRIMINAL APPEAL 60723/97 JAMES J BARR J CARRUTHERS AJ Friday, 12 June 1999 REGINA v Paul Thomas SMITH JUDGMENT 68 BARR J : I agree with James J. IN THE COURT OF CRIMINAL APPEAL 60723/97 JAMES J BARR J CARRUTHERS AJ Friday, 12 June, 1999 REGINA v Paul Thomas SMITH JUDGMENT 69 CARRUTHERS AJ : I have had the benefit of reading, in draft form, the judgment of James J. I respectfully agree with the orders proposed by his Honour and his reasons therefor. I would merely add the following comments in relation to the conduct of a special hearing under the Mental Health (Criminal Procedure) Act 1990. 70 The concept of a special hearing, the procedure for which is set out in section 23 of the Act, does not fit happily into the established procedures for the administration of criminal justice in this State. However, it is understandable that the legislature has taken the view that, in appropriate cases a special hearing, as envisaged by the Act, is the most just way to resolve a charge or charges which have been laid against an accused person who has been held to be unfit to be tried for such charges. However, the procedure will necessarily from time to time create difficulties for the Judge presiding over the special hearing. It could not be considered to be a remarkable occurrence for a person judged unfit to be tried, to behave inappropriately at the special hearing. Such inappropriate behaviour could well involve his or her making prejudicial statements or indulging in disruptive behaviour. This imposes the obligation upon the Judge to deal as best he or she can in the circumstances, to avoid such statements or behaviour causing the trial to miscarry. 71 The community would expect that jurors having been made aware of the nature of the proceedings in which they are involved, would adopt a mature and sensitive attitude towards such statements or conduct, and thus avoid them culminating in a miscarriage of justice. Of course, questions of fact and degree arise here. 72 In the instant case Judge Twigg was faced with a difficult problem and he adopted a course which he believed was fair, just and appropriate in the circumstances. It is possible that other Judges may have taken a different course. One will never know. I am quite satisfied in my own mind that the course which Judge Twigg took was not capable, in the special circumstances of this case, of leading to a miscarriage of justice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.