Carter v R [2019] NSWCCA 11

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carter v R [2019] NSWCCA 11 Hearing dates: 6 July 2018 Decision date: 08 February 2019 Before: Payne JA at [1] Schmidt J at [22] Button J at [31] Decision: 1. Leave to appeal against conviction granted. 2. Appeals against conviction allowed. 3. The conviction for wounding with intent to murder is quashed. 4. The conviction for the driving offence involving a police pursuit is quashed. 5. On each count, a special verdict of not guilty on the grounds of mental illness is entered. 6. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the applicant is to be detained in such place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law. 7. The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court. 8. The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide those bodies with the following documentation: (a) A copy of the judgments of this Court and its orders; (b) A transcript of these proceedings; (c) A transcript of the trial; and (d) A copy of the exhibits tendered at trial. Catchwords: CRIMINAL LAW – conviction appeal – wounding with attempt to murder – police pursuit – trial by judge alone – parties agreed at first instance that special verdicts of not guilty on ground of mental illness should be returned – unanimous psychiatric evidence – verdicts of guilty returned – discussion of nature of determination pursuant to s 7(4) of the Criminal Appeal Act 1912 (NSW) – whether it appears to the Court of Criminal Appeal that applicant was mentally ill at time of acts – whether trial miscarried in that trial judge failed to address adequately in reasons for verdicts psychiatric evidence about demeanour of accused in recorded interview – convictions quashed – special verdicts of not guilty on ground of mental illness entered – explanation of meaning and effect of special verdicts Legislation Cited: Crimes Act 1900 (NSW) Crimes Legislation Amendment Act 2004 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1907 Criminal Appeal Act 1912 (NSW), s 7(4) Criminal Appeal (Mental Illness) Amendment Act 1986 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Act 1983 (NSW) Mental Health (Amendment) Bill 1986 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW), s 38 Cases Cited: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Hitchens v The Queen [1962] Tas SR 35 Hone v The State of Western Australia [2007] WASCA 283 JM v R (2014) NSWCCA 297 Mizzi v the Queen [1960] HCA 77; (1960) 105 CLR 659 R v Anderson [1981] VR 155 R v Atkins (1908) 1 Cr App R 45 and 69 R v Derbin [2000] NSWCCA 361 R v Fang (No 4) [2017] NSWSC 323 R v Fitchett [2009] VSCA 150; (2009) 23 VR 91 R v Fleeton (1964) 64 SR (NSW) 72 R v Hilder (1997) 97 A Crim R 70 R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20 R v M'Naghten (1843) 10 Cl & Fin 200; 8 ER 718 R v Matusevich and Thompson [1976] VR 470 R v McMahon [2004] VSCA 64; (2004) 8 VR 101 R v Porter [1933] HCA 1; (1933) 55 CLR 182 R v Weise [1969] VR 953 Stapleton v R [1952] HCA 56, (1952) 86 CLR 358 Stockton v R (1981) 3 A Crim R 384 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Yun v R [2017] NSWCCA 317 ZA v R [2018] NSWCCA 116 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 July 1911 at 1386-1387 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 April 1986 at 3074-3076 Category: Principal judgment Parties: Joseph Thomas Carter (Applicant) Regina (Respondent) Representation: Counsel: C Bruce SC (Applicant) S Dowling SC (Respondent)