REGINA v. FIORI [2000] NSWSC 80

New South Wales Supreme Court

CITATION : REGINA v. FIORI [2000] NSWSC 80 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70028 of 1999 HEARING DATE(S) : Wednesday 16 February 2000 JUDGMENT DATE : 16 February 2000

PARTIES : REGINA v. FIORI, Angelo Samuel JUDGMENT OF : Greg James J at 1

COUNSEL : Crown: M.Cunneen Accused: P. Zahra SOLICITORS : Crown: S.E. O'Connor Accused: T.A. Murphy CATCHWORDS : Criminal law - related offence - dealing with related offence includes dismissing it LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Criminal Procedure Act 1986 DECISION : Charge dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

No. 70028 of 1999

GREG JAMES, J.

WEDNESDAY 16 FEBRUARY 2000

REGINA v. ANGELO SAMUEL FIORI

JUDGMENT

1 HIS HONOUR: At the conclusion of the judge only trial for murder in which I found the special verdict under the Mental Health (Criminal Procedure) Act 1990, s.38 and made the order under s.39 of that Act, the Crown informed me of a related offence within the meaning of that term as used in s.34 of the Criminal Procedure Act 1986 and has provided to me a certificate pursuant to s.34A of that Act. 2 That certificate indicates that the accused was also charged with common assault of his friend following the killing of his mother. Under s.35 of the Criminal Procedure Act it is provided that if, at the conclusion of the trial of an accused person in an indictable offence, a court finds the accused person guilty of the offence, the court may, unless it considers it inappropriate, order the charge to be dismissed or may deal with any related charge. 3 Under s.35(1A), the court may deal with the related offence if, at the conclusion of the trial, the court finds the accused person not guilty. In dealing with a related offence it appears to me I have the power to dismiss it although s.35(1A) does not contain an express equivalent of s.35(1)(a). The legislature must have intended that I could dismiss the charge, or dealing with the offence would be an absurdity and no true trial at all. The Crown urged me to dismiss the offence. Mr. Zahra who appeared for the accused, does likewise. 4 I am not sure, nor is it necessary for me to determine whether, in so dealing with the offence I should conduct the equivalent of a judge only trial of it under the Criminal Procedure Act. I could dismiss the offence pre-trial by consent as a judge. Perhaps the hearing involved in dealing with it is a mere adjunct to the principal trial. In any event, since I am being urged by the Crown and the defence to dismiss the charge and since at any trial the tribunal of fact in such circumstances need hear no more once the matter has been opened, it does not seem to me that it is necessary that I should remind myself or record in writing all of the directions one might have given had one proceeded to determine a contested trial. It is unnecessary for me in the circumstances, to determine the precise context. 5 I dismiss the charge.