R v Minani [2005] NSWCCA 226

Reported Decision : 154 A Crim R 349 63 NSWLR 490

New South Wales Court of Criminal Appeal

R v Minani [2005] NSWCCA 226 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23rd June 2005

JUDGMENT DATE: 8 July 2005

JUDGMENT OF: Spigelman CJ at 1; Hunt AJA at 2; Howie J at 42

DECISION: 1 The appeal is upheld; 2 The determination made by Judge McGuire is quashed; 3 Subject to any determination made by the Mental Health Review Tribunal, there is to be a fresh special hearing against the appellant; 4 In the event that the appellant is held to be fit to be tried, there is to be a trial of the charge against him

CATCHWORDS: Mental Health (Criminal Procedure) Act 1990 - accused not fit to be tried - special hearing of criminal charge - notice of election for special hearing to proceed before judge alone - judge to be satisfied that accused, before making election, sought and received advice in relation to that election from barrister or solicitor (s 21A) - person making election must understand what is involved in such an election - obligation on judge is to be satisfied that the barrister or solicitor was satisfied that the accused properly understood the nature of the election he was making - material in psychiatric reports on mental illness defence giving rise to some concern as to whether accused was fit to make the election - judge made no inquiries of solicitor giving advice as to whether any psychiatric assessment had been obtained of the accused's competence to make election - Section 21A not satisfied - not mere procedural irregularity, but error of such fundamental importance that order pursuant to s 7(4) of Criminal Appeal Act 1912 inappropriate - purpose of s 7(4) - relevance of evidence relating to mental illness to specific intent