CJ v Regina [2012] NSWCCA 258

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CJ v Regina [2012] NSWCCA 258 Hearing dates: 24 July 2012 Decision date: 14 December 2012 Before: Beazley JA at [1] Hall J at [2] S Campbell J at [100] Decision: Order that the period for which the appellant's notice of intention to appeal has effect is extended to 19 December 2011 and that the following orders made by the Court on 24 July 2012 be confirmed. (1) Appeal allowed. (2) Convictions quashed. (3) The matter be remitted to the District Court for retrial. Catchwords: CRIMINAL LAW - appeal against conviction and sentence - in judge-alone trial appellant convicted of 21 charges where the appellant raised at trial a defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 - trial judge determined that defence of mental illness not established - whether trial judge failed to consider expert evidence - failure to take into account expert evidence called for the appellant on the issue as to the appellant's capacity to appreciate the wrongfulness of her actions - acceptance of expert evidence in Crown case without an analysis and evaluation of conflicting medical opinion evidence adduced in the defence case - obligation on the trial judge to analyse all relevant expert opinion evidence and identify the basis for preferring one expert witness over another - obligation of trial judge to provide reasons in preferring one expert witness over another - whether trial judge erred in not finding that the appellant was suffering from a mental illness at the time of the commission of the offences which gave rise to a defence of mental illness - error established in the trial judge's omission to evaluate the totality of the relevant medical evidence and in failure to take into account and analyse conflicting expert evidence and to identify the basis for accepting the Crown's expert witness and not accept the evidence called in the defence case - proceedings remitted to District Court for retrial. Legislation Cited: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Alchin v Daley [2009] NSWCA 418 Attorney-General for South Australia v Brown (1960) AC 432 Beale v Government Insurance Office (1997) 48 NSWLR 430 Cesan v The Queen [2008] HCA 52; 236 CLR 358 Mizzi v R [1960] HCA 77; 105 CLR 659 R v M'Naghten (1843) 8 ER 718 R v Porter [1933] HCA 1; 55 CLR 182 R v Pratt [2009] NSWSC 1108 Sodeman v The King (1936) 55 CLR 192 Stapleton v The Queen [1952] HCA 56; 86 CLR 358 Willgoss v R (1960) 105 CLR 295 Category: Principal judgment Parties: CJ (Appellant) Regina (Respondent) Representation: Counsel: Mr G Turnbull SC (Appellant) Mr R Herps of counsel (Crown) Solicitors:Baker & Borthwick (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/17430, 2010/17810 Publication restriction: Names of appellant and all victims are suppressed and represented by initials Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-12-10 00:00:00 Before: Garling DCJ File Number(s): 2010/17430, 2010/17810