Regina v R T I [2005] NSWCCA 337

Reported Decision : 158 A Crim R 172

New South Wales Court of Criminal Appeal

CITATION: Regina v R T I [2005] NSWCCA 337

HEARING DATE(S): 20 September 2005

JUDGMENT DATE: 20 September 2005

JUDGMENT OF: Giles JA at 1; Hislop J at 47; Smart AJ at 48

DECISION: The determinations that the appellant committed the offences be quashed and new special hearings be conducted.

CATCHWORDS: Special hearings under Mental Health (Criminal Procedure) Act 1990 - charges of sexual offences - election for determination by judge alone - whether hearings miscarried because judge did not enquire into understanding of nature of election - R v Minani required judge be satisfied that person's barrister or solicitor be satisfied person properly understood - no enquiry into this - judge's determinations quashed - whether charges of sexual intercourse without consent with person under 16 unreasonable and inconsistent with evidence - consideration of evidence as to complainant's age at the time of the alleged offences - open to judge to be satisfied beyond reasonable doubt - observations as to nomination of limiting terms under Mental Health (Criminal Procedure) Act - cumulation where multiple offences - can not nominate limiting term if commencement after the time of nomination - legislative attention deserved.

Jones v The Queen (1989) 166 CLR 409; R v AN [2005] NSWCCA 239; R v Birlut (1995) 39 NSWLR 1; CASES CITED: R v Kurtic, (CCA, 16 February, unreported); R v Minami [2005] NSWCCA 226; R v Mifsud (CCA, 8 November 1995, unreported).

PARTIES: Regina v R T I

FILE NUMBER(S): CCA 2005/939

J R Dwyer - Crown COUNSEL: J Stratton SC - Applicant