Director of Public Prosecutions (NSW) v Marmara & 1 Or

[2004] NSWCA 478

CITATION:	Director of Public Prosecutions (NSW) v Marmara & 1 Or [2004] NSWCA 478
HEARING DATE(S):	16/12/04
JUDGMENT DATE:	16 December 2004
JUDGMENT OF:	Hodgson JA at 51; Ipp JA at 1; Bryson JA at 56
DECISION:	(1) The making of a declaration that Dodd DCJ was bound to conduct a further fitness hearing of the First Opponent Marmara in respect of the offence of maliciously wounding with intent to do grievous bodily harm, alternatively maliciously wounding police officer in the execution of duty, alternatively assault occasioning actual bodily harm (2) An order that the proceedings be remitted to the District Court to be determined according to law.
CATCHWORDS:	MENTAL HEALTH - Procedure under Mental Health (Criminal Procedure) Act 1990 (NSW) where defendant unfit to be tried - Where unfitness is raised before arraignment - Where jury finds unfitness established - Where Mental Health Review Tribunal made a determination that the defendant was suffering from a mental illness and determined that the defendant will be fit to be tried within 12 months - Where bail granted - Where Attorney General determined that a second inquiry should be conducted - Whether question as to unfitness to stand trial raised by Attorney General in good faith - Whether trial judge erred in not ordering a further inquiry. ND
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990 (NSW), ss 5, 7, 8(1), 10, 11A, 12(3), 13, 14, 15, 16(1), 16(2), 16(3), 16(4), 17, 18, 19, 20 Mental Health Act 1990 (NSW), s 253
CASES CITED:	R v Mailes (2001) 53 NSWLR 251 R v Tier (2001) 121 A Crim R 509
PARTIES :	Director of Public Prosecutions (NSW) (Claimant) Raymond Paul Marmara (First Opponent) The District Court of New South Wales (Second Opponent)
FILE NUMBER(S):	CA 40762/04
COUNSEL:	R Cogswell SC/A Mitchelmore (Claimant) D Barron (First Opponent) Submitting Appearance (Second Opponent)
SOLICITORS:	S C Kavanagh, Solicitor for Public Prosecutions (Claimant) S O'Connor, Solicitor for Legal Aid Commission (First Opponent) I V Knight, Crown Solicitor (Second Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/11/0380
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

CA 40762/04
DC 02/11/0380

HODGSON JA
IPP JA
BRYSON JA

Thursday, 16 December 2004

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v RAYMOND PAUL MARMARA & 1 OR

Judgment

1 IPP JA: On 18 April 2002 Mr Raymond Paul Marmara the first opponent was indicted on charges of malicious wounding with intent to do grievous bodily harm, alternatively with maliciously wounding a police officer in the execution of his duty, alternatively with assault occasioning actual bodily harm.

2 On 11 November 2002, before Marmara was arraigned, the Attorney General, through his delegate (the Solicitor General), determined in terms of s 8(1) of the Mental Health (Criminal Procedure) Act 1990 (NSW) (“the Act”) that a hearing should be conducted into Marmara’s unfitness to be tried for the offences the subject of the indictment.

3 On 12 December 2002 a jury found Marmara unfit to be tried. Taylor DCJ thereupon, acting in terms of s 14(a) of the Act, referred Marmara to the Mental Health Review Tribunal. On 5 May 2003 the Tribunal made a determination as required by s 16(1) of the Act and determined that:

(a) “Mr Marmara, on the balance of probabilities, will, during the period of twelve months after the finding of unfitness, become fit to be tried for the offence(s) included within the indictment in relation to which this person has been found unfit to be tried”.
(b) “Mr Marmara suffers from a mental illness, namely schizophrenia”.

4 As required by s 16(3) of the Act, the Tribunal notified the District Court of its determination. That led to Taylor DCJ, on 10 November 2003, granting Marmara conditional bail.

5 On 16 December 2003 Taylor DCJ directed the Tribunal to reassess Marmara’s unfitness for trial. By that date 12 months had expired since the jury had found Marmara unfit to be tried.

6 By letter dated 15 January 2004 to the claimant, the Tribunal asserted that it had no jurisdiction under the Mental Health Act 1990 (NSW) “to review his case, including any current issue associated with his fitness to be tried”.

7 On 20 February 2004 the Chief Judge of the District Court ordered that the matter be set down for a further fitness hearing.

8 Thereafter, Marmara was assessed by psychiatrists as to his fitness to stand trial. Each concluded that he was unfit to stand trial.

9 On 1 April 2004 the Attorney General, through his delegate, determined in terms of s 8(1) of the Act that:

“a further inquiry as to whether [Marmara] is fit or unfit to be tried in respect of these offences be conducted before the hearing of the proceedings in respect of these offences.”

10 For reasons dated 4 May 2004, Dodd DCJ (the primary judge) refused to conduct a further inquiry. His Honour held that the Attorney General’s determination was not made in good faith.

11 The claimant now seeks a declaration that the primary judge erred in so finding and claims ancillary relief.

12 The question of a person’s unfitness to be tried for an offence may be raised by any party to the proceedings or by the Court (s 5 of the Act) and may be raised before the person is arraigned or at any time during the course of the hearing (s 7(1)). Section 7(2) provides that nothing in s 7 “prevents the question of a person’s unfitness to be tried for an offence from being raised on more than one occasion in respect of the same proceedings.”

13 Section 8(1) provides:

“If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.”

14 The Court must not conduct an inquiry into the question of a person’s unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith (s 10(2)).

15 Subject to the person in question electing to the contrary in terms of s 11A, the question of a person’s unfitness to be tried is to be determined by a jury constituted for that purpose.

16 Section 13 provides:

“If, following an inquiry, an accused person is found fit to be tried for an offence, the proceedings brought against the person in respect of the offence are to recommence or continue in accordance with the appropriate criminal procedures.”

17 If, following an inquiry, an accused person is found unfit to be tried, the proceedings in respect of the offence, save for an exception not presently relevant, must not be recommenced or continued and the Court “must refer the person to the [Tribunal]” (s 14).

18 Section 15 provides:

“It is to be presumed:
(a) that a person who has, in accordance with this Part, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case, and
(b) that a person who has, in accordance with this Part, been found fit to be tried for an offence continues to be fit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case.”

19 Section 16(1) provides:

“If a person has been referred to the Mental Health Review Tribunal under section 14 after a finding that the person is unfit to be tried for an offence, the Tribunal must, as soon as practicable after the person is so referred, determine whether, on the balance of probabilities, the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence.”

20 Section 16(2) provides:

“If the Tribunal determines that a person will, during the period of 12 months after the finding of unfitness, become fit to be tried, the Tribunal must also determine whether or not:

(a) the person is suffering from mental illness; or

(b) the person is suffering from a mental condition for which treatment is available in a hospital and, if the person is not in a hospital, whether or not the person objects to being detained in hospital.”

21 Section 16(3) provides that the Tribunal must notify the Court of its determination and s 16(4) provides that “if the Tribunal determines that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Tribunal must notify the Attorney General of the determination and furnish the Director of Public Prosecutions with a copy of the notification”.

22 Section 17 sets out the orders the Court may make if notified by the Tribunal of its determination that a person will become fit to be tried during the period of 12 months after the finding of unfitness. The section provides:

“17(1) If the Court is notified by the Mental Health Review Tribunal of its determination that a person will, on the balance of probabilities, become fit to be tried during the period of 12 months after the finding of unfitness and of its determination in relation to the matters set out in section 16(2), the Court may take the action set out in subsection (2) or (3).
(2) The Court may grant the person bail in accordance with the Bail Act 1978 for a period not exceeding 12 months.
(3) If the Tribunal has determined:
(a) that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital – the Court may order that the person be taken to and detained in a hospital; or
(b) that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital – the Court may order that the person be detained in a place other than a hospital,
for a period not exceeding 12 months.”

23 By s 18, if the Attorney General is notified by the Tribunal of its determination that a person will not become fit to be tried during the period of 12 months after the finding of unfitness, the Attorney General, after considering the advice of the Director of Public Prosecutions, may direct that a special hearing be conducted in respect of the offence with which the person is charged or advise the relevant Minister and the Court that the person will not be proceeded against by the Attorney General or the Director of Public Prosecutions in respect of the offence.

24 By s 19, if the Attorney General so directs, the Court must conduct a special hearing as stipulated therein (that is, even if the person remains unfit to be tried).

25 By s 20, if the Attorney General advises the Court that the person will not be proceeded against, the Court must order the release of the person.

26 These elaborate procedures create a framework that, before arraignment, governs what occurs when a question of unfitness to be tried is raised. The Act, however, does not expressly provide for the situation that arises in the circumstances of this case, namely, where:

(a) Before arraignment, the question of unfitness to be tried is raised.

(b) The jury finds unfitness established.

(c) The Tribunal determines that the person concerned is suffering from a mental illness but will, during the period of 12 months after the finding, become fit to be tried.

(d) The Court grants the person bail.

27 It is in these circumstances that the Director of Public Prosecutions wishes to proceed with the prosecution of Marmara.

28 The Director is armed with the determination by the Tribunal that Marmara “will” during the period of 12 months after the jury’s finding, now expired, become fit to be tried. Under s 15, however, by reason of the jury’s finding Marmara is presumed to be unfit to be tried. Thus, the Director cannot take the proceedings further without a new determination as to whether or not Marmara is fit to be tried. Without further steps being taken, Marmara remains, in effect, in a state of limbo – on bail with no prospect either of a trial taking place and being found guilty or not guilty, or the Attorney General directing his release.

29 The primary judge relied on s 10(2) of the Act in deciding that the inquiry should not be held. That section provides that the Court must not conduct an inquiry unless it appears that the question of a person’s unfitness to be tried has been raised in good faith.

30 The primary judge held that the question of Marmara’s unfitness for trial had not been “raised” by the Attorney General “in the relevant sense” in “good faith”. He did not explain was meant by the “relevant sense”. “[G]ood faith” under s 10(2) was commented on in R v Tier (2001) 121 A Crim Reports 509. Sheller JA said (at 511):

“[T]he trial judge said ( Tier (unreported, District Court, NSW, Rummery DCJ, No 95/11/0880, 12 August 1999)):
‘I am not prepared to come to a conclusion on the balance of probabilities that the question of his fitness to be tried has been raised in good faith. It may be that Mr Tier is unfit to be tried. I say that would have to be a possibility. It is only a possibility. It is to my mind far from a probability.’
I do not understand how it could be said that, if there was a possibility that the appellant was unfit to be tried, the question of whether he was indeed unfit to be tried could be said not to have been raised in good faith.”

31 Kirby J said (at 521):

“The exception provided by s 10(2) recognises that an inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed (and is provided, by s 10(2) for the trial judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the court that the question has not been raised in good faith (s 10(2)). It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process (cf Dunford J, Zhang at [29]). Conversely, where there is a real and substantial question, good faith will be presumed.”

Grove J agreed with both Sheller JA and Kirby J. See also R v Mailes (2001) 53 NSWLR 251 (at 285-288 per Wood CJ at CL).

32 The first reason given by the primary judge for his conclusion that the Attorney General raised the question of unfitness for trial otherwise than in good faith was that there was no need for that question being raised in the circumstances obtaining but that there was a need for further steps to be taken as without further steps Marmara would remain indefinitely subject to bail or remand in custody.

33 The judge proceeded to observe that “the evidence to be presented by both the Crown and [Marmara] in the form of the reports of two independent psychiatrists is to the effect that he is clearly unfit to be tried”. His Honour drew attention to s 15(a) and said that, having previously been found to be unfit to be tried, Marmara continues to be “unfit to be tried until proved otherwise”. The judge said that there was “no evidentiary basis on which [Marmara] could be found fit to be tried”.

34 The primary judge, however, omitted to take into account the finding of the Tribunal that Marmara would, during the period of 12 months after the finding of unfitness by the jury, become fit to be tried.

35 The Tribunal is a specialist tribunal. By s 253 of the Mental Health Act 1990 (NSW) the members of the Tribunal are to be appointed from three classes of persons, namely “barristers and solicitors, psychiatrists and persons having, in the opinion of the Governor, other suitable qualifications or experience”. The Tribunal is well capable of forming its own views as to the fitness of the person to be tried.

36 The Tribunal would have to take into account its earlier determination that Marmara would, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence.

37 The Tribunal might not accept the views of the psychiatrists. On the other hand, if it does, it would be entitled to make an order in terms of s 16(4) determining that Marmara will not, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence. If that occurs ss 18 to 20 of the Act are likely to come into play.

38 In the circumstances it is plain that the determination of the Attorney General of 1 April 2004 was an attempt to bring resolution to the proceedings involving Marmara. There was a sound basis for making the determination, namely, the initial finding of the Tribunal. I do not see how the opinions of the two independent psychiatrists that Marmara was not fit to stand trial alone established that the Attorney General lacked bona fides in determining that a further inquiry be held. In my view, it was eminently reasonable for the Attorney General to make that determination.

39 Another reason given by the judge for his conclusion was that the raising of the question by the Attorney General ignores the presumption in s 15(a) that a person who has been found to be unfit to be tried continues to be unfit to be tried until the contrary, on the balance of probabilities, is determined to be the case. His Honour said “It is not proposed to prove otherwise. In any meaningful sense his unfitness to be tried has not been raised.”

40 What I have said in respect to the first reason given by his Honour applies to these remarks. For the reasons I have given, I think that the primary judge erred and it is unnecessary to say anything further in this regard.

41 The judge said that the further raising of the question by the Attorney General alters the position in relation to the onus of proof. He said:

“[T]he procedure proposed by the Attorney General changes the position from having the question of the accused’s fitness for trial proved on the balance of probabilities – ie, with the onus squarely on those who assert his fitness for trial.”

42 The judge’s reasoning is fallacious. The raising by the Attorney General once more of the question of unfitness does not change the onus of proof. By reason of s 15, the Attorney General will be required to prove, on a balance of probabilities, that Marmara is fit to be tried.

43 In any event, I do not see how a so-called alteration to the onus of proof bears on the bona fides of the Attorney General’s determination to raise the question of unfitness again.

44 Next, the primary judge said:

“[T]he procedure contains no inherent guarantee that the accused will emerge with a result”.

This is allied to a point made by the judge that the determination results in the possibility of endless repetitive inquiries into an accused’s unfitness to be tried. The judge rightly said that this was not a telling point.

45 His Honour went on to say:

“Bearing in mind the accused’s history generally, and on bail in particular, it is highly likely that he would be granted bail immediately following the jury’s determination under s14(b) on conditions that would again have the result that he is not a ‘forensic patient’. He would again be in the same legal position as now. He should not be subjected to that possibility.”

46 In my view, however, even if it is “highly likely” that the Tribunal’s decision would be such that Marmara would be granted bail again (on which I express no opinion), if he is fit to stand trial and is granted bail the trial will take place and Marmara, in the judge’s words, will indeed “emerge with a result”.

47 If he is unfit to stand trial but a finding is made by the Tribunal that he will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence, it may be that no finality will be achieved in the foreseeable future. If, however, the finding of the Tribunal is that Marmara will not be fit to plead within 12 months, the Attorney General may direct the Court to hold a special hearing in terms of s 19 or may advise the Court that Marmara will not be further proceeded against by the Attorney General or the Director of Public Prosecutions in respect of the offences in question (see s 18(b)).

48 In all the circumstances, it is by no means certain that there would be a lack of finality. In any event, the element of lack of finality does not establish lack of bona fides on the part of the Attorney General. I would add that, in fact, the only way in which finality could be obtained is by the Court conducting an inquiry in response to the Attorney General’s second determination.

49 In my opinion, the primary judge’s finding as to lack of good faith on the part of the Attorney General, or his delegate, lacked any basis.

50 Accordingly, I would propose the following orders:

(a) The making of a declaration that Dodd DCJ was bound to conduct a further fitness hearing of the first opponent Marmara in respect of the offence of maliciously wounding with the intent to do grievous bodily harm, alternatively maliciously wounding a police officer in the execution of duty, alternatively assault occasioning actual bodily harm.

(b) Order that the proceedings be remitted to the District Court to be determined according to law.

51 HODGSON JA: I agree.

52 The Mental Health (Criminal Procedure) Act 1990 deals with the position where a person is charged with a criminal offence and a question of unfitness to plead arises.

53 In my opinion, it is clear that an object of the Act is to have a decision made concerning the commission of the offence that will place a limit on the period for which the person can be detained. That decision can be made only if the person is found fit to be tried, or if the person is found unfit to be tried and the Mental Health Review Tribunal determines on the balance of probabilities that the person will not become fit within 12 months. In the former event, there will be an ordinary trial. In the latter event, the Attorney General may direct a special hearing under s19 of the Act.

54 If, as occurred in this case, a person is found unfit to be tried, and the Tribunal determines on the balance of probabilities that the person will become fit within 12 months, then the only route towards the fulfilment of the object of the Act that I have identified is to have a further fitness hearing, and that is what the Attorney General has sought in this case.

55 So in my opinion, the orders proposed by Justice Ipp should be made.

56 BRYSON JA: I agree with the judgments which have been given.

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Last Modified: 07/16/2007