Reported Decision : 54 NSWLR 1 127 A Crim R 9 New South Wales Court of Criminal Appeal CITATION : REGINA v ZVONARIC [2001] NSWCCA 505 FILE NUMBER(S) : CCA 60147/01 HEARING DATE(S) : 13 November 2001 JUDGMENT DATE : 14 December 2001 Regina PARTIES : v Peter Ian ZVONARIC JUDGMENT OF : Spigelman CJ at 1; Sully J at 21; Adams J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0400 LOWER COURT JUDICIAL Karpin DCJ OFFICER : Appellant in person COUNSEL : P G Berman SC (Crown) Appellant in person SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Appellant unfit for trial - special hearing - necessity for arraignment - whether evidence must be sworn - whether person charged may consent to tender of entire prosecution case - desirability of reading tendered statements - adequacy of reasons - appeal allowed - verdicts of acquittal entered Mental Health (Criminal Procedure) Act 1990 LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250; 103 A Crim R 121 CASES CITED: R v Presser [1958] VR 45 Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 DECISION : See paragraph 52 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60147/01 SPIGELMAN CJ SULLY J ADAMS J FRIDAY 14 DECEMBER 2001 REGINA v Peter Ian ZVONARIC Judgment 1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Adams J in draft. His Honour sets out the course of the proceedings, the relevant parts of the judgment appealed from and the issues that arise. I agree with his Honour's orders but for somewhat different reasons. 2 The proceedings were a special hearing pursuant to Pt 2 of the Mental Health (Criminal Procedure) Act 1990 pursuant to a direction from the Attorney General. The relevant statutory provisions are as follows: "19(1) If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. (2) The question whether a person has committed an offence charged or any other offence available as an alternative to an offence charged is, except as provided by section 21A, to be determined at a special hearing by a jury constituted for that purpose. … 21(1) 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. (2) At a special hearing, the accused person must, unless the Court otherwise allows, be represented by counsel or a solicitor and the fact that the 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. (3) At a special hearing: (a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged; and (b) the counsel or solicitor, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury; and (c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings; and (d) without limiting the generality of subsection (1), the accused person is entitled to give evidence. (4) At the commencement of a special hearing, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts. 21A(1) 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. (2) An election may be made only with the consent of the prosecutor. (3) An election must be made before the date fixed for the person's special hearing in the Supreme Court or District Court. (4) An accused person who elects to have a special hearing determined by the Judge alone may, at any time before the date fixed for the person's special hearing, subsequently elect to have the matter determined by a jury. (5) Rules of court may be made with respect to elections under this section. 21B(1) The verdicts available to a Judge who determines a special hearing without a jury are the verdicts available to a jury under section 22. Any such verdict has, for all purposes, the same effect as a verdict of a jury. (2) A determination by a Judge in any such special hearing must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. 22(1) The verdicts available to the jury or the Court at a special hearing include the following: … (c) that on the limited evidence available, the accused person committed the offence charged; … (3) A verdict in accordance with subsection (1)(c) …: (a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; … 23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; … (2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings. …" 3 I agree with Adams J that the obligation imposed by s21(1) to conduct a special hearing "as nearly as possible as if it were a trial of criminal proceedings" encompasses a formal arraignment. Section 56(2) of the Criminal Procedure Act requires an arraignment before the Supreme Court or the District Court has jurisdiction with respect to the conduct of proceedings on indictment. I can see no reason why this formal step should not be taken in "a special hearing". It does constitute part of the public process of the administration of criminal justice. The degree of informality, which occurred in the present circumstances, when the indictment was merely handed up and not read aloud, was a greater degree of informality than s21(1) permits. 4 Pursuant to s21A there was a formal election that the special hearing be conducted by the judge alone. This has implications for the conduct of the hearing and also for the content of the reasons, which must be delivered by the Court. 5 Adams J has come to the conclusion that the tender of the whole of the evidence by means of witness statements was a breach of the requirements of s21(1). His Honour has also concluded that the reasons for decision failed to comply with the obligation imposed by s21B(2) that the judge's determination must include "the principles of law … and the findings of fact". 6 These last two issues are not unrelated. The content of the required statement of reasons may be affected by what has happened by way of evidence and submission in open court. In the present case I have come to the conclusion that the statement of reasons was defective. However, I do not agree with Adams J that the tender of the evidence by means of witness statements was, in the circumstances of this case, a contravention of the requirements of 21(1). 7 In Fleming v The Queen (1998) 197 CLR 250 the Court considered the provisions of what was then s33(2) of the Criminal Procedure Act 1986. (See now s17 of the Criminal Procedure Act 1986.) That statutory provision refers to a "judgment by a judge" rather than the requirement of s21B(2) of the Act under consideration of a "determination by a judge". Otherwise the provisions are the same. 8 The High Court said in Fleming at [28]: "… while s33(2), when specifying that 'which a judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s33(2) be satisfied merely by a bare statement of principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached." 9 I agree with Adams J that in the present case her Honour's reasons do not answer this description. Her Honour did not identify the elements of the charges or set out the sequence of events or identify the property damage or the conduct constituting resistance to the police in the execution of their duty. 10 It is by reason of the failure to comply with the requirements of s21B(2) and the failure to comply with s21(1) that I earlier identified, that I agree with the orders proposed by Adams J. 11 I do not however agree with his Honour's reasons that the procedure of tendering evidence was such as to constitute a contravention of s21(1). 12 A special hearing is conducted where a person has been found unfit to be tried. Nevertheless, it is expected that a special hearing will occur with the assistance of legal representation on behalf of the person found to be unfit. Questions of instruction from an accused are necessarily problematic in such circumstances. Nevertheless the legislative scheme assumes such representation and, in its practical operation, the scheme requires the Court to rely on the professionalism of that legal representation. 13 It is pertinent to set out again s21(2): "21(2) At a special hearing, the accused must, unless the court otherwise allows, be represented by counsel or a solicitor and the fact that the 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." 14 This position is reinforced by the special requirement in s21A that prior to acting upon an election for a judge alone trial, 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". Furthermore, the result of a special hearing is a finding that a person committed an offence "on the limited evidence available". (See this phrase in both s22(1)(c) and 19(1).) This, as is stated in s22(3)(a), constitutes "a qualified finding of guilt". 15 In the circumstances the Court must be, as the legislative scheme contemplates, particularly reliant on the legal practitioner representing the accused person. In the present case Counsel for the accused requested an opportunity to speak to the Appellant and explain the procedure to him. The matter was stood in the list for this to occur. There is, in my opinion, no basis for any inference that the procedures, issues and choices were not fully explained to the Appellant and, insofar as that could reasonably occur, were understood by him. 16 To support the procedure adopted in this case of tendering witness statements, the Crown relied on each of s184 and s190 of the Evidence Act 1995. Section 184 permits an accused in a criminal proceeding to admit a matter of fact or to give a consent "if advised to do so by his or her lawyer". Section 190 permits the rules of evidence to be waived with the following qualification in sub 2: "190(2) In a criminal proceeding, a defendant's consent is not effective for the purpose of subsection (1) unless: (a) the defendant has been advised to do so by his or her lawyer; or (b) the court is satisfied that the defendant understands the consequences of giving the consent." 17 It should be noted that par (b), with respect to an understanding of the consequences of consent, is an alternative to par (a), with respect to advice by a lawyer. Section 190 indicates the degree of reliance that the court places on the performance by legal practitioners of their professional obligations and of their duties to the court. This is even more the case with respect to the conduct of a "special hearing" under the Mental Health (Criminal Procedure) Act 1990. 18 It may be unusual, but it is not impermissible, for the substantive evidence in a criminal proceeding to be given by means of witness statements. In the present case I can see no basis for any suggestion that a legal practitioner acting in the interests of the Appellant could not have given the advice for which each of s184 and s190 of the Evidence Act make provision. In these circumstances I am not satisfied that there was any failure to comply with s21(1) of the Mental Health (Criminal Procedure) Act 1990. 19 Notwithstanding that I have come to the conclusion that there has been no failure to comply with the statute by reason of the procedure adopted, the principle of open justice suggests that it should not become a general practice to conduct a special hearing as if it were a paper committal. The very exigencies that give rise to the need for a special hearing are such as indicate a greater than usual need to observe the formalities of court process. The very difficulty of obtaining proper instructions, with the consequent dependence by the court on the performance of professional obligations by a legal practitioner, emphasises the desirability of following formal procedures. 20 Nevertheless for the other reasons I have given, the orders proposed by Adams J should be made. 21 SULLY J: I agree with the Chief Justice. 22 I wish to express specific concurrence with the entirety of what is said by the Chief Justice in paragraph 19 of his Honour's judgment. 23 ADAMS J : The appellant was charged in the District Court with a number of offences arising out of his occupation of a room at the Mercure Hotel in St Leonards, a suburb of Sydney. Count one of the indictment charged him with maliciously damaging certain property with the intent of endangering the life of one James Minard, a police sergeant, count two alleged malicious damage of some items in the hotel room by means of fire and counts 3, 4 and 5 alleged that the accused resisted police officers in the execution of their duty. In a special hearing held under the Mental Health (Criminal Procedure) Act 1990 (the Act) the appellant was found by the learned trial judge, on the limited evidence available, to have committed the offences charged in counts to two to five but he was acquitted on count one. 24 The appellant had paid for and occupied a room in the hotel on 23 June 1997. On the following day, at the time for the appellant's departure, Mr Morrisey, an assistant manager, knocked on the door and, when there was no response, unlocked the door to enter. The door had been barricaded, preventing his entry. He asked the appellant, through the closed door, to pay for the night's accommodation. The appellant agreed and Mr Morrisey told him he would return at 2 pm for payment, adding that if payment were not made the appellant would have to leave the hotel. When Mr Morrisey returned to the room and asked the appellant for payment, the appellant refused and swore at him in terms that indicated that he had no intention of making any payment or of leaving. 25 The police were then called. At about 3 pm Constables Atkins and Young arrived and were taken to the room occupied by the appellant. They attempted to enter the room with a key but found that the door was barricaded with furniture. The appellant refused to let them in and declined to leave the room. After further ineffectual conversation, one of the hotel maintenance men used a power saw to cut a square hole in the door. Constable Atkins started climbing through the hole when he saw the appellant with a piece of burning newspaper in his hand. Constable Atkins jumped back out of the opening as the piece of newspaper was thrown out into the hallway. The constable saw the appellant pick up two bottles on the bed, which were then thrown through the door towards police. Three more pieces of burning paper were thrown towards the door and were extinguished with a fire hose. Sergeant Minard and Constable Atkins climbed into the room through the hole in the door. The bed was on fire and the appellant threw a roll of burning paper at the door. The flames rising at the base of the door were extinguished with the fire hose. The appellant was holding a knife in his right-hand, which he pointed towards the officers. Sergeant Minard told the appellant twice to put the knife down. When the appellant moved towards him, the sergeant struck his right forearm with his police baton. The knife fell to the floor and a violent struggle involving the two police officers and the appellant then ensued. The appellant was eventually handcuffed and taken to the police truck. 26 The appellant had suffered a slight wound to the back of his head and both knees were burnt. Constable Atkins had a cut to one of his fingers. The appellant's wound and burns were treated at the Royal North Shore Hospital. He was then taken to Lane Cove police station and charged. 27 The appellant spent five months and two days in custody before being released subject to a community health order. On 8 March 1999, he was found unfit to plead by a jury in accordance with the procedure laid down by the Act. In due course, a special hearing was conducted with the outcome to which I have referred. That hearing took place before a judge sitting alone, there having been an election in that respect made under s21A of the Act. The appellant was legally represented. By consent, the prosecution tendered the unsworn statements of the eyewitnesses, namely employees of the hotel and the police officers who were involved in the appellant's arrest. There was no defence case. It appeared, therefore, that the facts were not substantially in dispute. 28 The learned District Court judge took the view (rightly, in my respectful opinion) that, having regard to the period already spent in custody, it was not appropriate that the appellant should suffer any further custodial sentence. Her Honour noted that the appellant had been under the care of the Central Sydney Area Health Service for some months and had been in remission since October 1999. He was receiving appropriate treatment and had shown himself to be compliant with medication and attendance. Her Honour agreed with the appellant's doctor's opinion that it would be inappropriate to admit the appellant to a psychiatric facility. Accordingly, she deferred passing sentence upon the appellant entering into a bond pursuant to the provisions of s9 of the Crimes (Sentencing Procedure) Act 1998 and being of good behaviour for a period of twelve months, imposing the sole condition that he continued his treatment with the Health Service and took such medication as was directed by the appropriate officer of that Service. 29 In March 2001 the appellant filed a notice of appeal in respect of his "convictions" and an application for leave to appeal in respect of the sentence, applying also for an extension of the time within which to make these applications. In all the circumstances, I propose that time be extended to enable the appellant to proceed. The appellant has not had the benefit of legal assistance in relation to his appeal and appeared personally to argue it in this court. The documents that he has filed and his presentation in court demonstrate that he is labouring under a handicap both as to his understanding and ability to communicate. It is unnecessary to speculate as to its cause. 30 The grounds set out in the appellant's notice of appeal are, in substance, that he had not assaulted the police officers but was assaulted by them and had spent five months in prison as a result of police lies. He was not, of course, charged with assault. He also complains that, whilst in custody, his house was burnt and about $50,000 worth of damage was done. This is obviously irrelevant to any issue arising in the appeal. The appellant (on one interpretation) alleges that his legal representative, provided by legal aid, was incompetent although he may merely be complaining about the Legal Aid Commission. In a letter dated 15 October 2001 addressed to the Registrar of the Court of Criminal Appeal, the appellant covered in some detail the events at the hotel. It is unnecessary to set out what the appellant wrote. It is sufficient to state that, in substance, in every significant respect except two it is consistent with the prosecution case against him. The appellant makes no mention of the knife and it appears, though this is not entirely clear, that he might be denying setting fire to the bed, at least deliberately, although he states that he "started lighting three rol[led] lots of paper on the bed". The appellant also complained about the first count but, as I have mentioned, he was acquitted of this charge. The only complaint made about his legal representation concerns the hearing at the "mental tribunals" (presumably the Mental Health Review Tribunal) and for having been refused legal aid in respect of the present appeal. The appellant makes no complaint about the conduct by Mr Higgins of the proceedings in the District Court. 31 In considering the circumstances of the proceedings below, in order to deal with the complaints, such as they were, made by the appellant, I noted other possibly problematical matters which were not raised by the appellant. Because he was found unfit to be tried, a condition that, as it appears to me, still affects him, it seemed appropriate that these issues should be brought to the Crown's attention and written submissions sought about them. The appellant was also notified that the Court was seeking the Crown's response to these questions. The questions upon which assistance was sought were, in substance, those with which I deal in what follows. Written submissions were provided. Because of the view that I have formed as to the disposition of the appeal, it has not been necessary to seek the applicant's response to those submissions. 32 I have already mentioned that the prosecution case comprised witness statements that had been tendered with the consent of the defence. This was done immediately upon presentation of the indictment, which was not read out. The applicant was not arraigned nor was any plea formally entered. The statements were not read out. The prosecutor intimated that, in respect of the first count, the case against the appellant was not "very strong" but that the evidence in respect of the other counts was "ample". After the statements were tendered, Mr Higgins (the applicant's solicitor), with the consent of the prosecutor, tendered the brief medical report to which I have already adverted. The prosecutor foreshadowed a submission that the Crown would not seek a custodial sentence and tendered, by consent, the appellant's criminal record. Neither the medical report nor the criminal record were material to the question before her Honour which, as specified in s 22 of the Act, was whether on the limited evidence available, the appellant committed the offences charged. Her Honour retired to read the material. Mr Higgins was not invited, and did not seek, to make any submissions. 33 In my view, the prosecutor's concession in respect of the first count considerably understated the position. The evidence could not have justified a conviction; indeed, it is difficult to understand how, consistently with the Director of Public Prosecutions' Guidelines, a bill was found. I find this troubling when it is considered that the person charged is suffering from a significant mental disability. On the other hand, the prosecutor rightly submitted that there was ample evidence that the appellant had committed the offences alleged in the other counts. After a short adjournment, the learned trial judge returned to deliver judgment. 34 It will be seen that the special hearing in this case was, compared to an ordinary trial, conducted with a high degree of informality, rather as a sentence proceeding rather than as a trial. However, s 21(1) of the Act, which provides, in mandatory language, that "a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings" (emphasis added). I consider that, in a number of respects, this requirement, and the policy which it embodies, was not reflected in this hearing. 35 It is necessary to bear in mind that a special hearing occurs only when the person charged is suffering from the major handicap that he or she is unfit to be tried. This consideration might well lead to some amelioration of some of the usual formalities of a trial, as the language of s 21(1) of the Act implies, to avoid unnecessary distress to a person subjected to a special hearing although the evidence suggests that this was not a problem in the present case. At the same time, it is important to bear in mind that the conduct of trials under our system of justice occurs in public, a matter that I discuss further below. 36 Section 21(3) of the Act provides that "the accused person is to be taken to have pleaded not guilty in respect of the offence[s] charged". However, I consider that the person is not "charged" for this purpose until the indictment is read out to him or her. Moreover, the provisions of s 21(1) of the Act make it necessary to read out in open court the charges brought against the accused person: arraignment in a public hearing is an invariable and essential incident of all criminal trials. Though it may not strictly be required, having regard to the terms of s 21(3), it is in my opinion desirable also to formally enter a plea of not guilty. 37 The Criminal Procedure Act 1986 (the Procedure Act) provides - "56(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused is arraigned…" 38 On the face of it, as the Crown prosecutor concedes, this means that arraignment is an essential prerequisite to the conduct of a trial on indictment. It is submitted, however, that the purpose of the arraignment is merely procedural, to ascertain whether there is to be a trial or not and thus, since, in this case, s 21(3) of the Act provides that the person charged is assumed to have pleaded not guilty and hence makes no plea, a "trial" is inevitable and arraignment unnecessary. However, to my mind, s 56(2) of the Procedure Act, which does not change the common law, is designed to ensure that the identity of the accused and the nature of the charges to be tried are publicly declared. Accordingly, the charges must be publicly announced and the accused's plea must be publicly entered. The proper procedure for a special hearing is, in my view, no less stringent: the person should be arraigned and the trial judge publicly enter a plea of not guilty. Moreover, I consider that s 21(3) does not come into effect until the person is charged so that the assumption that there has been a plea of not guilty does not operate until that point has been reached. It is submitted by the Crown prosecutor that "offence charged" means "offence appearing on the indictment [presented]" and he points to the provisions of ss 87 and 130 of the Procedure Act in support of this interpretation. However, both those provisions come into play only when there is a trial, thus when the accused has been arraigned on the indictment, which procedure they necessarily assume to have occurred. Alternative charges do not arise, of course, until the person has been both arraigned and has pleaded on the primary charge. I consider that a person is never charged, for the purposes of a trial as to the commission of the charge, merely by virtue of an offence being contained in an indictment, even if the indictment is presented: it is by reading out the indictment to the accused in open court, ie by arraignment, that he or she is charged (cf Kainhofer (1995) 83 A Crim R 105, per Gummow J at 128-9, where his Honour mentions the phrase "A Person charged" in Art IV, s 2, cl 2 of the United States Constitution). The fact that the person to be charged is unfit to be tried (and is presumed to remain so until the contrary is proved: s 15(a) of the Act) renders this more, not less, important. At all events, the question is, it seems to me, determined by s 21(1) of the Act, since arraignment of the accused in open court is the invariable practice in a trial of criminal proceedings and no express or necessary implication in the Act qualifies this requirement. 39 There are two issues that arise from the tender of the statements: the first of these is whether this is a course to which the person charged can consent, especially where this implies an admission of their truth; and the second is whether, when tendered, the statements must be read onto the record, having regard to the public character of criminal trials. 40 Of course, in conventional trials, statements are tendered, frequently by consent and otherwise as permitted by the Evidence Act 1995. However, in the former case, where such statements are evidence in the trial (as distinct from use for interlocutory purposes) consent amounts to admission of the truth of the content of the statements or that the tendering party has proved the prerequisites for admission under the Evidence Act 1995. It is this quality that enables the statements to be used in evidence. Whatever the effect on the propriety of a trial where statements have been tendered by consent in the absence of any admission as to their truth, I am unable to see how a person charged in a special hearing can properly be taken to consent to such a basic variation in and departure from the proper mode of adducing evidence as is constituted by the mere production of unsworn statements. The Crown submits that it can be "safely assumed" that the appellant's lawyer satisfied himself that the applicant was capable of giving consent and had given consent to the course adopted. However, as I have already pointed out, s 15(a) of the Act presumes the applicant to be relevantly unfit unless the contrary is proved. The applicant's lawyer was not qualified to have an opinion about the applicant's mental state. Whether because of s 15(a) or because of the lawyer's lack of expertise, no such assumption as suggested by the Crown in this Court could safely have been made by the learned trial judge. It may be that there was no dispute about the content of the statements in conference between the person charged and his solicitor but it must be remembered that, to be the subject of a special hearing, the applicant must have been suffering a significant handicap in respect of his ability to comprehend the nature of the proceedings and (to adopt the language of R v Presser [1958] VR 45 at 48) the substantial effect of any evidence that is to be given against him. In this case, the statements were treated as though the applicant admitted their truth. Although no dispute was expressed as to any aspect of the Crown case, a plea of not guilty places in issue every element of the charge. The mere consent to admittance of the witness statements should not, in a case such as the present, operate as an admission of their truth. Section 184 of the Evidence Act 1995 permits admissions to be made by the defendant on legal advice. In a conventional trial, that may be presumed. This was not a conventional trial and the applicant was not a conventional accused. At all events, I am doubtful that any admission of material facts can be made in the context of a special hearing, in light of s 21(3) of the Act, especially in the absence of express explanation about how it comes to be done and showing why it is appropriate. Certainly, no express admission was made by the appellant or on his behalf in the present case. 41 Whether it could be appropriate in some cases simply to tender the statements and not read them (assuming them to have been properly admitted) because to do so would be likely to be productive of unnecessary distress or disturbance does not need to be decided, since no such suggestion was made in this case. 42 This Court has been informed that, from time to time in conventional judge-alone trials, statements are tendered which are not read out, and the Crown prosecutor submitted that "there is no magic in reading statements formally onto the record". I think it would be very rare, if ever, that the whole of the evidence in a trial would be so dealt with. Of course, in a jury trial, tendered statements are invariably read out. In my view, evidence which is tendered in a trial should be adduced in a way which makes it accessible to members of the public who may be attending the court, unless there are very strong reasons for not doing so, a matter which is now largely governed by Part 3.10, Div 3 of the Evidence Act 1995 (cf Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47, per Kirby P at 50ff.) Mere convenience cannot, in my opinion, justify tender without public exposure of evidence directed to proof of guilt or, as in a special hearing, whether the person committed the offence charged. Documentary and other exhibits may fall into a different class but, in my opinion, they should be dealt with in a way which enables the public, at least, to gather an impression as to their content. This is a matter of substance, not form, and thus in some cases will involve judgments of degree. However, publicity of trial, including the evidence, is no empty ritual (as I take the Crown prosecutor's reference to "magic" to mean). It is an important safeguard of the due administration of justice and is no less necessary where there is a special hearing. Indeed, because of the very situation of a person charged in such a proceeding, it may well be more important. The conduct of an entire trial by mere tender of documents, the substance of which is not published during the proceedings is, to my mind, completely unacceptable, even where an accused, fully alive to his or her rights and the nature of the proceedings, consented. No question of degree arises in the present case. The evidence was, effectively, secret. I do not consider that the applicant's consent to such a course (assuming he could and did consent) could legitimise such a gross departure from the public character of a criminal proceeding. Quite apart from the common law, this was to my mind a grave contravention of both the words and the spirit of s 21(1) of the Act. 43 As I have pointed out, material that was relevant only to sentence was tendered before the charges were found to have been proved, of one of which the appellant was acquitted. I have no doubt that the learned trial judge was not affected in the slightest by the record of the appellant's convictions but they included a number of charges not far removed from those which her Honour was required to consider and it was, to say the least, regrettable that the record was tendered before she had determined whether the offences had been committed. 44 In respect of the first count in the indictment, the prosecution was obliged to prove beyond reasonable doubt that the appellant acted with the intention to endanger life. This element rendered the charge a very serious one indeed. The appellant's record disclosed that in September 1990 he was convicted of the offence of sending a letter threatening to commit murder. Had the appellant been convicted on the first count, the premature tender of his record may well have created a serious problem. 45 Lastly, I would refer to the provisions of s 21B(2) of the Act, which requires the determination a trial judge in a special hearing to include the principles of law applied by the judge and the findings of fact upon which the judge relied. This provision is, relevantly, the same as s 33(2) of the Criminal Procedure Act 1986. In this case, the material part of the learned trial judge's reasons was as follows - "In respect of count 2, the damage occasioned to the materials within the hotel, and I do not propose to summarise the evidence beyond the very brief material to which I have indicated, there was some altercation between the accused and the hotel management. Subsequent to police being called it seems that the accused firstly did considerable damage to items within the premises and then there was some resistance to the police who sought to take him into custody. In all the circumstances, as they appear from the statements, I am satisfied that each of those counts in the indictment has been established to the requisite criminal standard." 46 The Crown prosecutor submitted in the Court that, having regard principally to the lack of dispute about the facts, the learned trial judge had adequately exposed her process of reasoning. I do not agree. Compliance with s 21B(2) seems to me to require much more than this. At the least, the elements of the charges should have been articulated, the property damaged described, the police named, resistance to whom constituted the offence, the nature of the duty they were performing and the nature of the resistance offered. In Fleming v The Queen [1998] HCA 68; 103 A Crim R 121, the Court said (at [27], [28]; 130, omitting references) - "…[W]hilst they are differently framed, the requirements of s 33(2) and (3) [of the Criminal Procedure Act 1986] are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1927. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33. …[W]hilst s 33(2), when specifying that which a "judgment" must include, does not use the expression "reasons for judgment", it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached." 47 Further on in the judgment ([37]; 132), their Honours point to what they describe as "the animating principle behind s 33", namely that "criminal justice must not only be done but must be seen to be done". 48 It seems to me that, with respect, the learned trial judge's judgment did not satisfy the requirement imposed by s 21B(2) of the Act. 49 The appellant's complaints in this Court include the finding of malicious damage (I think) in respect of the bed, mattress and bed linen. No issue was taken about this matter at the hearing and the accounts of the witnesses (if properly admitted) do not give rise to any reasonable doubt that indeed these items were damaged as a result of the appellant deliberately lighting the paper in or on the bed. The appellant also claims that he did not assault the police. However, he was neither charged with nor found to have committed such an offence. The evidence, if properly admitted, that he resisted the police officers in the execution of their duty was overwhelming. 50 It is obvious that the appellant has not raised as grounds of appeal the matters that I have identified as problematical. Because of the nature of the proceedings from which he appeals and the handicaps to which he is obviously subject, I do not consider that this should prevent this Court from dealing with the appeal as justice requires. 51 Each of the matters to which I have referred, taken alone, might not justify the conclusion that there was a miscarriage of justice such as to warrant quashing the convictions. It is important, however, to bear in mind the nature of the proceedings, in particular, that the accused (as the Act assumes) is unable adequately to make good defence and reply to the charges brought against him or her. Taken as a whole, I consider that the matters I have identified as concerns demonstrate such a fundamental departure from the statutory requirements for a special hearing and the proper incidents of a criminal trial, mandated by s 21 of the Act, that there has been a substantial miscarriage of justice. 52 Accordingly, I propose that time should be extended for the purpose of the appeal against the findings that the appellant committed the charges embodied in accounts two to five of the indictment and that the appeal should be allowed. In light of the delay, the time the appellant spent in custody pending the special hearing and the orders made in the District Court (which were, if I may say so with respect, clearly correct), I do not think that a new special hearing should be ordered. Accordingly, verdicts of acquittal should be entered in respect of the charges (counts two to five of the indictment) that the applicant was found to have committed. It is unnecessary to consider the application to appeal against sentence. *************** 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.