R v Zhang [2000] NSWCCA 344

New South Wales Court of Criminal Appeal

CITATION : R v Zhang [2000] NSWCCA 344 FILE NUMBER(S) : CCA 60091/99 HEARING DATE(S) : 3 August 2000 JUDGMENT DATE : 31 August 2000

PARTIES : Regina (Respondent) Ju Sheng Zhang (Appellant) JUDGMENT OF : Foster AJA at 1; Dunford J at 2; Greg James J at 34

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70058/97 LOWER COURT JUDICIAL Dowd J OFFICER :

COUNSEL : GP Craddock (Appellant) R Cogswell SC (Crown) SOLICITORS : TA Murphy (Appellant) SE O'Connor (Crown) CATCHWORDS : CRIMINAL LAW & PROCEDURE - mental health - fitness to be tried - issue raised in good faith - no alternative but to order inquiry - mis-trial LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990, ss 5 - 11A Kesavarajah v The Queen (1994) 181 CLR 230 CASES CITED: R v Presser [1958] VR 45 Eastman v The Queen [2000] HCA 29, 74 ALJR 915 DECISION : See para 33.

IN THE COURT OF CRIMINAL APPEAL

60091/99

FOSTER AJA DUNFORD J GREG JAMES J Thursday, 31 AUGUST 2000 R v Ju Sheng ZHANG HEADNOTE The appellant was convicted of murder and other offences and appealed on the ground that the trial judge had erred in not conducting a fitness inquiry pursuant to the Mental Health (Criminal Procedure) Act 1990 ("the Act") . Concern regarding the appellant's mental health was first raised by the Crown at a directions hearing, as a result of which the judge ordered a psychiatric examination and report. The appellant provided very little information to the psychiatrist. Upon tendering the psychiatric report the Crown Prosecutor stated that there was nothing before the Court to indicate that the accused was not fit to be tried. The appellant insisted on appearing for himself at the trial. On the fourth day of the trial the Crown Prosecutor expressed concern regarding his fitness to stand trial, and the judge said he was satisfied that the issue of his fitness to be tried had been raised in good faith. Subsequently, the Crown Prosecutor purported to "withdraw" his earlier "application" and the trial continued. Held: - Once the issue of the appellant's fitness to be tried had been raised in good faith, it was not open to the Crown Prosecutor to "withdraw the application", and the trial judge had no alternative but to discharge the jury and order an inquiry to determine the appellant's fitness to be tried, as required by s 10 of the Act. His failure to do so resulted in a mis-trial. Eastman v The Queen [2000] HCA 29, 74 ALJR 915; R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230, distinguished. Mental Health (Criminal Procedure) Act 199, ss 5 - 11A . Orders: - 1. Appeal allowed. 2. Convictions and sentences quashed. 3. New trial ordered. 4. Note that the question of the appellant's unfitness to be tried has been raised before his arraignment on the new trial and accordingly s 8, Mental Health (Criminal Procedure) Act 1990 applies.