New South Wales Court of Criminal Appeal REGINA v KNORR [2005] NSWCCA 70 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 25 February 2005 JUDGMENT DATE: 25 February 2005 JUDGMENT OF: Spigelman CJ at 1, 25; Wood CJ at CL at 23; Barr J at 24 DECISION: 1. Appeal allowed; 2. Verdict quashed CATCHWORDS: CRIMINAL LAW - Unfitness to be tried - "Special hearing" pursuant to s19(1) of the Mental Health (Criminal Procedure) Act 1990 - Adequacy of judge's directions - Whether new trial should be ordered - Discretion under s8(1) Criminal Appeal Act 1990 - PRACTICE AND PROCEDURE - Trials conducted as "special hearings" under Mental Health (Criminal Procedure) Act 1990 - Jury directions Criminal Appeal Act 1912: s8(1) LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990: s11(1), s19(1), s21(4) CASES CITED: Subramaniam v The Queen [2004] HCA 21; (2004) 79 ALJR 116 Regina PARTIES: Monika Knorr FILE NUMBER(S): CCA 2004/2629 A Francis (Appellant) COUNSEL: P Barrett (Respondent) S O'Connor - Legal Aid Commission (Appellant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/41/0147 LOWER COURT JUDICIAL OFFICER: English DCJ - 4 - IN THE COURT OF CRIMINAL APPEAL 2004/2629 SPIGELMAN CJ WOOD CJ at CL BARR J Friday 25 February 2005 REGINA v Monika KNORR Judgment 1 SPIGELMAN CJ: The background circumstances of this appeal can be briefly stated. 2 On 15 May 2002 two police officers came to the Appellant's residence in response to an emergency call in which she had indicated her intention to kill herself. After attending to her, the Appellant appeared to have settled down and the officers engaged her sister in conversation. During this time the Appellant emerged with a knife and, during the course of attempts by the officers to restrain her, she waved the knife in front of her and the police officers stepped back. 3 The use of the knife was the act which constituted the offence of which she was found guilty. She was acquitted on the second charge, the circumstances of which it is unnecessary to set out. 4 The Appellant was found unfit to be tried pursuant to s11(1) of the Mental Health (Criminal Procedure) Act 1990 on 5 February 2003. On 5 November 2003 the Appellant stood trial at a special hearing pursuant to s19(1) of that Act. On 7 November 2003 the jury found that "on the limited evidence available, the accused person committed the offence charged", in accordance with s22(1)(c) of the Act in respect of count one on the indictment, that was "that on 15 May 2002, at Warrawong, she did use an offensive weapon, a knife, with the intent to prevent a member of the police force from investigating any act or circumstance which reasonably called for investigation". 5 The Appellant relied on one ground of appeal as follows: the trial judge erred by failing to comply with s21(4) of the Mental Health (Criminal Procedure) Act 1990. The Crown accepts that the appeal must be allowed on this ground. 6 Section 21(4) provides: "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." 7 During her Honour's opening remarks she explained the nature of the special hearing, what was meant by unfitness to be tried, the purpose of the special hearing and the verdicts which are available in accordance with the section. 8 In relation to "the legal and practical consequences of those verdicts", her Honour said: "I will give you directions as to the legal and practical consequences of the verdicts available to you when I sum up to you at the conclusion of the evidence and counsel's addresses to you. That is all I propose to say to you at this point in time about the nature of the special hearing." 9 The Crown's concession in this appeal, is based on the decision of the High Court in Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116. In a joint judgment, the High Court said, referring to s21(4) at [37]: " … Nor did the trial judge attempt to explain what the legal and practical consequences of their verdict would be. All that he said as to these was that the legal and practical consequences were matters for him." 10 In this respect the Court said at [38]: "These were all matters that s 21(4) requires to be, not just touched upon, but explained." 11 The Court went on to give a model explanation in accordance with the requirements of the section at [40] and then said: "[41] It is not immediately clear why the jury should be burdened with the sort of detail that the act requires with respect to the legal and practical consequences of their verdict. Perhaps the requirement is intended to give the jury an assurance that guilty person will not escape the consequences of his or her crime by reason of a temporary mental infirmity, or that a mentally unfit person will be humanely treated, even if convicted. Whatever the reasons, the language of s 21(4) is mandatory and must be given effect." 12 The Court also said at [44]: "… The mandatory requirements of s 21(4) cannot be and were not met by the explanations proffered piecemeal over the course of the hearing or in statements by counsel. … the explanations that the judge must give are essential to the special hearing. A departure from any one of the elements identified in subs (2) to (4) deprives the hearing of its fundamental character. Such a departure itself constitutes a miscarriage of justice for the purpose of the Criminal Appeal Act 1912 (NSW) and therefore requires the quashing of any conviction entered after such a departure." 13 The Crown concedes that, in this case, English DCJ, although her Honour made some observations, in substance failed to explain the legal and practical consequences of any verdict reached by the jury in the special hearing. It acknowledged that failure to be a substantial miscarriage of justice. 14 The High Court said in Subramaniam at [48]: "A material departure from any of the elements described in s 21(2) to (4) of the Act is a departure from an essential requirement going to the root of the special hearing. Where such a departure occurs, it is unnecessary to consider further whether the miscarriage of justice that has occurred has affected the verdict of the jury. There is no need to weigh up the evidence and consider whether the jury's finding was inevitable. The failure to comply with s 21(4) in this appellant's special hearing is, of itself, a substantial miscarriage of justice with the result that the appeal should be allowed and the verdict quashed." 15 The Court must now exercise a discretion as to whether there should be a new trial pursuant to s8(1) of the Criminal Appeal Act 1912. 16 Her Honour indicated that an appropriate sentence would have been a term of three years. The Appellant has already served half that term. 17 Ms A Francis, who appeared for the Appellant, submitted that the three year term was excessive. It is not necessary to determine whether that is so, it is sufficient to say that, on a new trial, a limiting term less than three years would, in all the circumstances, be within the range of the permissible exercise of discretion. 18 In any event, the nature of the judicial indication of a limiting term does not make provision for a non-parole period. Early release is a matter for the Mental Health Review Tribunal, not the judge. In the circumstances of the present case, if a non-parole period could have been fixed, eighteen months could very well have been that period. 19 As I have said, under the legislative scheme, early release is a matter for the Mental Health Review Tribunal. However, the Court was informed that the Appellant has not been referred to the Tribunal under s24 of the Mental Health (Criminal Procedure) Act 1990. This will lead to further delay. 20 Some anxiety was expressed to the Court about the mental state of the Appellant. I am sure that there are other mechanisms that can be put in train by those who are responsible for her present custody to ensure that no harm befalls her and that such steps as may be appropriate under the mental health legislation are in fact taken. 21 This Court is concerned with whether or not it should order a new trial. In the circumstances I have outlined above, particularly the limiting term identified by her Honour, the fact that she has served half of that term and would, in sentencing terms, but not mental health terms, probably be entitled to release pursuant to a non-parole period, if that could have been set, and in view of the further delay that is implicit in the fact that she has not been referred to the Mental Health Review Tribunal at all, in my opinion the Court should exercise its discretion under s8 so as not to order a new trial. 22 The orders I propose are (1) Appeal allowed. (2) Verdict quashed. 23 WOOD CJ AT CL: I agree. 24 BARR J: I also agree. 25 SPIGELMAN CJ: The orders are as I have indicated. ********** 09/03/2005 - His Honour changed to Her Honour - Paragraph(s) [16], [21] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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