Eastman v The Queen - [2000] HCA 29

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DAVID HAROLD EASTMAN APPLICANT

AND

THE QUEEN RESPONDENT

Eastman v The Queen [2000] HCA 29
25 May 2000
C5/1997

ORDER

Special leave to appeal granted.

Appeal dismissed.

On appeal from the Federal Court of Australia

Representation:

D F Jackson QC with R D Cavanagh and G R Kennett for the applicant (instructed by John Forrest Boersig) at the hearing on 25 March 1999

D F Jackson QC with G R Kennett for the applicant (instructed by John Forrest Boersig) at the hearing on 1 February 2000

T A Game SC with S J Gageler for the respondent (instructed by Director of Public Prosecutions for the Australian Capital Territory) at the hearing on 25 March 1999

T A Game SC with R C Refshauge for the respondent (instructed by Director of Public Prosecutions for the Australian Capital Territory) at the hearing on 1 February 2000

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 25 March 1999

D Graham QC, Solicitor-General for the State of Victoria with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with C F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia) at the hearing on 25 March 1999

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Eastman v The Queen

Constitutional Law (Cth) – Appellate jurisdiction of High Court – Appeal from a federal court – Whether High Court has power to receive new evidence in an appeal from a federal court – Whether power to receive new evidence is different in appeals from federal and state courts.

Constitutional Law (Cth) – Interpretation – Relevance of historical background to Constitution.

Appeals – New evidence – Whether admissible on appeal to High Court.

Criminal Law and Practice – Fitness to plead – Issue not raised at trial – Whether material before appeal court suggested issue of fitness to plead at trial – Whether appeal court under a duty to investigate whether an accused was fit to plead at trial – Whether fundamental failure of trial process.

Words and phrases – "appellate jurisdiction" – "appeal" – "fresh evidence" – "fitness to plead".

Constitution, s 73.
Mental Health (Treatment and Care) Act 1994 (ACT), s 68.
Crimes Act 1900 (ACT), s 428E.
Federal Court of Australia Act 1976 (Cth), s 24.

GLEESON CJ. The applicant, following a trial in the Supreme Court of the Australian Capital Territory, was convicted of the murder of Colin Stanley Winchester. He was sentenced to imprisonment for life. An appeal to the Full Court of the Federal Court of Australia was unsuccessful[1]. The applicant seeks special leave to appeal to this Court.
[1]Eastman v The Queen (1997) 76 FCR 9.
A challenge to the legality of the trial, based upon a claim that the trial judge was not validly appointed, was dealt with separately, and rejected, by this Court[2].
[2]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 73 ALJR 1324; 165 ALR 171.
The grounds of the present application, as amended, are as follows:
(1)    At his trial, the applicant was unfit to plead. He was unfit to instruct counsel or to defend himself, because of mental illness.
(2)    The Director of Public Prosecutions and Crown Prosecutor knew it was likely that the applicant suffered from mental illness which would render him unfit to plead, to instruct counsel or to defend himself, and should have informed the learned trial judge of the fact.
(3)    Because of the applicant's mental illness and his unfitness to plead, the trial miscarried.
None of the above grounds had been argued in the Full Court, and no question as to the applicant's fitness to plead was raised before the trial judge. It will be necessary to make further reference, in due course, to the conduct of the trial and the appeal. For the present, it suffices to say that the grounds of appeal argued in the Full Court were not pursued in this Court, and the grounds sought to be argued in this Court represent a substantial departure from the way in which the trial and the appeal were conducted on behalf of the applicant.
The new evidence
At the commencement of the hearing of the application, senior counsel for the applicant sought to read 10 affidavits. Two of the affidavits were sworn by a psychiatrist, Dr White, who expressed opinions concerning the applicant's mental condition, and his fitness to plead. The remaining affidavits were sworn by a number of legal practitioners, and contained evidence as to the conduct of the applicant in relation to the preparation and conduct of his trial, said to bear upon his fitness to plead.
None of this evidence had been before the Full Court. It was objected to by the respondent. The primary ground of objection was that, upon the authority of the decision of this Court in Mickelberg v The Queen[3], the Court had no power to receive the further evidence on an appeal, and that it would be futile to grant special leave to appeal on the basis of evidence which would not be admissible on an appeal. The arguments involved in this tender of further evidence, and the respondent's objection, raised a constitutional issue, and a number of AttorneysGeneral intervened. Senior counsel for the applicant contended that Mickelberg did not stand in the way of his attempt to lead the evidence and that, even if it did, it should be reconsidered, and not followed.
[3](1989) 167 CLR 259.
There were other objections to the evidence. It was observed that the opinions of Dr White were largely based upon assumptions of fact concerning the applicant which were not shown to be true, and that his evidence included a substantial amount of inadmissible hearsay. It was also foreshadowed that, if the new evidence were admitted, counsel would wish to cross-examine some of the deponents, including Dr White, and would challenge Dr White's opinions.
It was decided that the appropriate course was to hear full argument from the parties and interveners upon what might be described as the Mickelberg point. If the evidence were to be rejected on that basis, then it would be unnecessary to deal with other grounds of objection, and no occasion to cross-examine Dr White or any other witness would arise. In that event, the grounds of appeal sought to be raised by the applicant would be considered in the light of the material that was before the Full Court.
It is the opinion of a majority of the Court, consisting of Gaudron J, McHugh J, Gummow J, Hayne J and myself, that the respondent's primary objection should be upheld, and that the further evidence upon which the applicant seeks to rely must be rejected. That being so, the evidence will not be received, and it is unnecessary to consider further questions as to the admissibility or cogency of the evidence, or to permit cross-examination.
My reasons for joining in the majority opinion on this point are as follows. They are based upon the nature of the jurisdiction which is invoked by an application for special leave to appeal to this Court, and upon a long line of authority, of which Mickelberg is a relatively recent example.
The jurisdiction invoked by an application for special leave to appeal is that conferred by s 73 of the Constitution. It is a jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State.
In Davies and Cody v The King[4], Latham CJ said:
"This is an application for special leave to appeal by two persons who have been sentenced to death. This court is sitting in this matter as a court of appeal and only as a court of appeal, and is not in this instance exercising original jurisdiction. The only power of the court as a court of appeal is to consider and determine whether the judgment of the court appealed from was right upon the materials before that court."
[4](1937) 57 CLR 170 at 172.
This proposition, and the corollary, that in the exercise of its jurisdiction under s 73 the Court does not act upon new evidence, was established at an early stage in the Court's history. In 1910, in Ronald v Harper[5], an appeal from the Supreme Court of Victoria, there was an attempt to lead evidence for the purpose of showing that evidence given at first instance was perjured. The Court held that it had no power to receive the new evidence. To like effect were the decisions in Scott Fell v Lloyd[6], in 1911, and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan[7], in 1931. In Grosglik v Grant (No 2)[8], in 1947, Latham CJ, Rich, Dixon, McTiernan and Williams JJ said: "Fresh evidence cannot be admitted upon appeals to this Court".
[5](1910) 11 CLR 63.
[6](1911) 13 CLR 230.
[7](1931) 46 CLR 73 at 85, 87, 109-111, 113.
[8](1947) 74 CLR 355 at 357.
Appeals are creatures of statute. It is not uncommon for intermediate appellate courts in Australia, including Courts of Criminal Appeal, to have conferred upon them, by statute, power to receive and act upon evidence which was not before the court of first instance. When such a power is exercised, what is involved is an exercise of original rather than strictly appellate jurisdiction. The relevant statute ordinarily defines the conditions and limits of the exercise of the power. There is no statute which confers such power upon this Court, or which regulates the circumstances in which further evidence might be received. The authorities referred to above do not deny the capacity of Parliament to enact such legislation, at least in relation to appeals from courts exercising federal jurisdiction, but it has never done so.
In Courts of Criminal Appeal which, by statute, are given such power, an opportunity exists for an appellant, who has been convicted of a crime, to seek to demonstrate, by evidence not adduced (and, usually, not available) at the trial, that there has been a miscarriage of justice. Such an opportunity, by its nature, only applies in relation to new evidence which is available at the time of the hearing of the appeal. It is not unusual for there to be claims of miscarriage of justice based upon material which first became available only after the conclusion of an unsuccessful appeal; sometimes many years later. In this country, that situation is addressed in various jurisdictions by statutory provisions empowering executive or curial inquiries into alleged miscarriages of justice. An example is to be seen in the provisions of Pt 13A of the Crimes Act 1900 (NSW). Although those provisions may give rise to a judicial inquiry, and empower the Court of Criminal Appeal, following such an inquiry, to quash a conviction, the process could be described as an "appeal" only in the loosest and most colloquial sense. Nevertheless, the availability of such procedures is part of the background against which the issue presently under consideration arises. Another part of the background is to be found in the principles governing the circumstances in which a Court of Criminal Appeal may re-open its own decisions[9]. Once again, what is involved in such a procedure is in no legal sense an appeal, and the time limits and procedures which govern the appellate process do not apply.
[9]See, for example, Grierson v The King (1938) 60 CLR 431; Postiglione v The Queen (1997) 189 CLR 295.
The line of authority going back to 1910, concerning the power of this Court, in the absence of any statutory provision, to receive further evidence when exercising its jurisdiction under s 73 of the Constitution, was opened for reconsideration by this Court in 1989 in Mickelberg[10], an application for special leave to appeal in a criminal case. By a majority of four to one[11], the Court decided that on an appeal under s 73 of the Constitution from a decision of a State court exercising State jurisdiction this Court has no power to receive new evidence. The reasoning upon which that conclusion was based is equally applicable to an appeal from another federal court, or a court exercising federal jurisdiction.
[10](1989) 167 CLR 259.
[11]Mason CJ, Brennan, Toohey and Gaudron JJ; Deane J dissenting.
For almost a century, appeals, including criminal appeals, in this Court have been conducted and decided upon the basis of the principles reconsidered and reaffirmed in Mickelberg. The reasons underlying those principles were fully explained in Mickelberg. That a different view is open is shown by the dissenting opinion in that case; but the issue should now be regarded as settled. The point, which is fundamental to the exercise by the Court of its appellate jurisdiction, should not be treated as open for further consideration every time a change in the composition of the Court encourages counsel to attempt to re-argue what is, by now, a very old question.
In Mickelberg[12], Mason CJ noted that one of the propositions underlying this uninterrupted stream of authority is that a court exercising strictly appellate jurisdiction is called upon to decide whether there was an error on the part of the court below, considering the material which was before the court below.
[12](1989) 167 CLR 259 at 267.
In the present case, against the possibility that the new evidence tendered in this Court would be rejected, the Court invited full argument from counsel (as if on appeal) on the question whether, on the material that was before the Full Court of the Federal Court of Australia, that Court could, and should, itself have made inquiries about, and considered, the applicant's fitness to plead or stand his trial.
Was the Full Court in error?
The nature of the suggested error on the part of the Full Court, and the context in which the suggestion is to be examined, may be seen from the preceding two paragraphs.
In the present case, nothing is said to turn upon any difference between the concepts of fitness to plead to an indictment and fitness to be tried[13]. It is convenient to refer simply to fitness to plead.
[13]cf Kesavarajah v The Queen (1994) 181 CLR 230 at 234.
Early statements on the subject reflect what, in modern times, would be regarded as an unsophisticated approach to psychiatric questions, but they also emphasise that what is in question is a matter of comprehension, not skill. Sir Matthew Hale[14] referred to the case where a man who commits a capital offence, later, but before arraignment, "becomes absolutely mad". In such a case "he ought not by law to be arraigned during such his frenzy, but be remitted to prison until that incapacity be removed". The reason is "because he cannot advisedly plead to the indictment". In R v Pritchard[15], in 1836, Baron Alderson instructed the jury that the question was "whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge." That was a case where the accused was deaf and dumb, but the wider issue of fitness to plead was considered. Alterations in the rules concerning the right of legal representation of accused persons affected the context in which the question may arise, and developments in the understanding of mental illness have elucidated the considerations that may be relevant to the inquiry. Even so, the test is substantially the same.
[14]Hale, The History of the Pleas of the Crown (1736), vol 1 at 34-35.
[15](1836) 7 Car & P 303 at 304 [173 ER 135 at 135].
For the purposes of the present case, the test was the subject of statute. Paraphrasing s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT), and applying it to the present case, the test was whether the applicant was capable of –
(a)understanding what it is that he had been charged with;
(b)pleading to the charge and exercising his right of challenge;
(c)understanding that the proceeding before the Supreme Court would be an inquiry as to whether or not he did what he was charged with;
(d)following, in general terms, the course of the proceeding before the Court;
(e)understanding the substantial effect of any evidence given against him;
(f)making a defence to, or answering, the charge;
(g)deciding what defence he would rely on;
(h)giving instructions to his legal representative (if any); and
(i)making his version of the facts known to the Court and to his legal representative (if any).
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen[16], that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.
[16](1994) 181 CLR 230 at 249.
In the case of Berry[17] Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said:
"It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on."
[17](1977) 66 Cr App R 156 at 158.
The Ontario Court of Appeal, in R v Taylor[18], recorded the following propositions, agreed by counsel, as representing the state of authority in that province:
"(a)   The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.
(b)    The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c)    The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d)    The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial."
[18](1992) 77 CCC (3d) 551 at 564-565.
In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test.
Section 428E of the Crimes Act 1900 (ACT) provided that, where the issue of fitness to plead to the charge was raised by a party or by the court, and the court was satisfied that there was a question as to such fitness, then there should be an inquiry into the question by the Mental Health Tribunal. The reference to a "question" is to a real and substantial question[19].
[19]R v Presser [1958] VR 45 at 46 per Smith J.
No such issue was raised either by the prosecuting authorities, or by the applicant or his legal representatives or by the trial judge. No such inquiry was held.
The behaviour of the applicant during the trial was in a number of respects violent, abusive and disruptive. He dismissed his legal representatives on a number of occasions, and conducted his own defence for lengthy periods. At the time when he was conducting his own defence he appeared to have a clear understanding of the issues in the case, the nature of the charge against him, and the nature of his answers to the charge.

In his remarks on sentence, Carruthers AJ said of the applicant:
"He suffers from no apparent physical disability and no evidence has been put before me either by the Crown or the prisoner that he suffers from any psychiatric condition. As I have earlier said, the evidence in that regard before me, rests with the final report of Dr Hocking, who detected no mental abnormality."
His Honour also said:
"As the trial progressed, the cogency of the Crown case became clear. Regrettably, however, from the outset of the trial the prisoner attempted to avoid the consequences of the damning nature of the Crown evidence by adopting a process of manipulating the trial process and attempting to frustrate its progression in any conventional manner. Despite the persistence of this approach, the trial process nevertheless managed to overcome the obstacles presented and reached finality."
That was the background against which the case went on appeal to the Full Court of the Federal Court. No ground of appeal to that Court raised an issue as to fitness to plead, or made any complaint of a failure on the part of the trial judge to discern the existence of a question about that matter. The applicant was represented on the appeal by experienced counsel, although, as at the trial, he changed his representation from time to time and also, on occasion, represented himself.
For the purpose of considering certain grounds of appeal it became necessary for the Full Court to look at a number of reports of a psychiatrist, Dr Milton, which had not been in evidence at the trial. There had been reference to the existence of such reports during cross-examination of police witnesses, but they were not seen by Carruthers AJ or, of course, by the jury. It is unnecessary to go into the full history of the reports. It suffices to say that some years before the trial, and whilst the applicant was under police surveillance, Dr Milton had been engaged to advise the police as to the likelihood that the applicant, who was suspected of killing Mr Winchester, an Assistant Commissioner of the Australian Federal Police, was also a danger to other people in authority.
The main point made by the reports, which is understandable having regard to the context in which they were written, is that Mr Eastman was a dangerous person who was quite capable of murdering Mr Winchester, and who could well harm others. Dr Milton said: "Eastman is a typical, dangerous, paranoid personality."
In a report of 15 January 1990 Dr Milton wrote: "I think he should now be regarded as psychotic (ie insane)".
On 28 February 1990 Dr Milton wrote:
"We [ie Dr Milton and the police] discussed the issue of sanity. I noted that in my last report I said that on balance he would have to be regarded as psychotic, ie out of touch with reality. This is not so much because there are specific indications of him suffering a recognisable psychosis such as schizophrenia, but rather that taking him as a whole, one would have to say he is far from normal."
In a report of 3 August 1990 Dr Milton recorded that there "was no suggestion of any schizophrenic thought disorder."
On 26 January 1992 Dr Milton wrote:
"Mr Eastman suffers from a serious emotional disorder and it is this which underlies his aggression and hostility. His disorder is sufficiently severe as to be likely to qualify for a defence of diminished responsibility were he to face trial for Mr Winchester's murder."
Significantly, Dr Milton did not say or suggest that the applicant would be unfit to be tried. By hypothesis, people who, successfully or unsuccessfully, raise an issue of diminished responsibility are regarded as fit to be tried, as are people who suffer from many forms of emotional disorder or psychiatric illness, which may explain why they have committed crimes, and which may be a material matter to be considered on sentencing.
The argument presently under consideration does not seek to attribute error to the trial judge. It proceeds upon the assumption that, on the material available to him, on the evidence at the trial, and on his observations of the conduct of the applicant, he was not in error in failing to raise an issue as to the applicant's fitness to plead and in failing to refer the question to the Mental Health Tribunal.
The Full Court of the Federal Court was exercising a jurisdiction conferred by s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). This was said, in Chamberlain v The Queen [No 2][20], to comprehend a power to "entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous", and a power to set aside a verdict whenever the Federal Court is of the opinion that there has been a miscarriage of justice.
[20](1984) 153 CLR 521 at 529 per Gibbs CJ and Mason J.
No ground of appeal before the Full Court, and no submission made to that Court, asserted that there was a question about the applicant's fitness to plead, or that there was a miscarriage of justice because such a question had not been referred to the Tribunal. Nevertheless, it is contended, the Full Court had both the power and the duty to inquire into that matter itself and that its failure to do so involved error requiring correction by this Court.
It is far from clear what, in practical terms, is suggested to be the course the Full Court was obliged to take in the circumstances. Let it be supposed that the material in Dr Milton's reports, coupled with the evidence at the trial, and the information before the Full Court as to the applicant's conduct, were such as would be expected to lead an appellate court to wonder whether this was a case in which, if an issue as to fitness to plead had been raised at the trial, it might possibly have been resolved adversely to the prosecution. It cannot be, and was not, argued that, in the present case, on the material available to the Full Court, there was only one possible outcome of an inquiry by the Mental Health Tribunal. What, then, would have been the issue for the Full Court to decide? And how would it have gone about deciding it?
It is one thing to say that s 24(1)(b) of the Federal Court Act empowers the Court to set aside a verdict which involves a miscarriage of justice. It is another thing to say that it obliges the Court, of its own motion, to embark upon an investigation of the fitness to plead of an appellant who denies unfitness, who is prosecuting his appeal upon the basis that he is competent to appeal and to instruct counsel, and who shows no interest in co-operating in any inquiry into his mental condition. (It may be added that the proceedings in this Court were fully adversarial in nature and were conducted upon the assumption that the applicant was competent to instruct counsel, and to make decisions as to how his case should be argued. This Court did not regard itself as entitled or obliged to investigate the validity of that assumption.)
The argument for the applicant must involve two premises. The major premise is that, if the material before the Full Court raised a real and substantial question as to the applicant's fitness to plead then, even though neither party sought to pursue the question, the Full Court had both the power and the duty to pursue it. The minor premise is that the material in Dr Milton's reports, considered either alone or in conjunction with the evidence at the trial and the information available to the Full Court as to the applicant's behaviour, raised such a question.
If the major premise is valid, it is not easy to understand why it should be limited to the issue of fitness to plead. The circumstance that such an issue can more readily be seen to be, in some degree, apart from the adversarial trial process, does not make it so different from any other issue giving rise to a potential miscarriage of justice that it stands alone. If it is the duty of a Court of Criminal Appeal, regardless of the issues raised by an appellant, to discover and investigate one possible form of miscarriage of justice, then the duty ought to extend to investigating, of its own motion, any form of miscarriage of justice. That is not a function which is conferred by s 24(1)(b) of the Federal Court Act.
As to the minor premise, no issue of fitness to plead having arisen at the trial, and Dr Milton's reports not having addressed any such issue (but, rather, having been written on the assumption that a trial could occur), the most that can be said is that the Full Court had before it material which indicated that the applicant suffered from a form of mental disorder. That did not mean that he was not fit to plead. Appellate courts frequently have before them material of that nature, without it being suggested that they are, on that account, obliged to raise the issue themselves and then pursue it, without the assistance of the parties. Much of the information available to the Full Court indicated that the applicant was fit to plead. The fact that some other information may have suggested the possibility that he was unfit to plead, a possibility which neither party to the appeal was advancing for consideration, did not mean that, in the appellate context, a question of fitness to plead arose for examination.
The applicant's argument fails at both levels.
Conclusion
I would refuse special leave to appeal. However, there is a majority of the Court in favour of granting special leave. In those circumstances, I consider that the appeal should be dismissed.

GAUDRON J. David Harold Eastman ("the applicant") seeks special leave to appeal from a decision and order of the Full Court of the Federal Court of Australia dismissing an appeal against his conviction for murder[21]. The applicant was convicted in the Supreme Court of the Australian Capital Territory of the murder, on 10 January 1989, of Assistant Commissioner Winchester of the Australian Federal Police.
[21]Eastman v The Queen (1997) 76 FCR 9.
History of the proceedings
The applicant's trial, which was presided over by Carruthers AJ, commenced on 16 May 1995 and lasted for five and a half months, concluding with his conviction on 3 November 1995. The trial was marked by various outbursts from the applicant and the frequent withdrawal of instructions from his legal representatives. From time to time, he represented himself either until he re-instructed those whose services he had dispensed with or until he engaged new legal representation[22]. He was unrepresented from 10 October until the conclusion of his trial on 3 November 1995.
[22]Eastman v The Queen (1997) 76 FCR 9 at 32-34 per von Doussa, O'Loughlin and Cooper JJ.
It will later be necessary to give a more detailed account of the behaviour of the applicant at his trial. For the moment, however, it is sufficient to note that neither the applicant, his various legal representatives, nor prosecuting counsel raised any question during the trial as to his fitness to plead. Nor did the trial judge who, in his remarks on sentence, indicated that he regarded the applicant's conduct as an attempt "to avoid the consequences of the damning nature of the Crown evidence by adopting a process of manipulating the trial process and attempting to frustrate its progression in any conventional manner."
On appeal to the Federal Court, an argument was put that there had been a miscarriage of justice because of "[t]he inability of the [applicant] to adequately prepare his defence and instruct Counsel at trial by reason of actions by the Prosecution". In essence, the argument related to police surveillance, including electronic surveillance, to which the applicant had been subjected for some years and which, according to the argument, resulted in conduct from which an adverse inference might be drawn but which could not properly be explained to the jury. It will be necessary to refer again to this aspect of the appeal to the Federal Court. For present purposes, however, it is sufficient to note that, although there was an issue as to the ability of the applicant to prepare his defence and to instruct counsel, no specific issue was raised as to his fitness to plead. In fact, counsel expressly rejected any suggestion of mental illness which might bear on that question[23].
[23]Eastman v The Queen (1997) 76 FCR 9 at 48-49.
By his application for special leave to appeal to this Court, the applicant raises, for the first time, the question of his fitness to plead at the time of his trial. As originally cast, his application seeks leave to appeal in order to present evidence to this Court on that issue. The application was referred to the Full Court to determine whether, if special leave were granted, this Court could or could not receive that evidence. If it could not, the grant of special leave on the basis upon which it was originally sought would be futile.
At the conclusion of the argument as to this Court's ability to receive evidence on the issue of the applicant's fitness to plead, the Court invited argument on the question whether there was material before the Federal Court such that it should have raised that issue of its own initiative. The application for special leave to appeal was subsequently argued on the basis that, if the Federal Court should, itself, have raised the issue of the applicant's fitness to plead, this Court should proceed as if an appeal had been instituted and allow the appeal.
Fitness to plead
In order to understand the questions that arise in this matter, it is necessary to say something as to the content of the expression "fitness to plead" and, also, as to its significance in the trial process. In general terms, a person is fit to plead if he or she "has sufficient understanding to comprehend the nature of [the] trial, so as to make a proper defence to the charge."[24] The accused "need not have the mental capacity to make an able defence"[25] but, nonetheless, there are certain matters which he or she must comprehend.
[24]R v Pritchard (1836) 7 Car & P 303 at 304 per Baron Alderson [173 ER 135 at 135].
[25]R v Presser [1958] VR 45 at 48. See also R v Robertson [1968] 1 WLR 1767; [1968] 3 All ER 557; Berry (1977) 66 Cr App R 156 at 158; Ngatayi v The Queen (1980) 147 CLR 1 at 8.
In R v Presser, Smith J, in a passage referred to with approval by this Court in R v Ngatayi[26], explained that, to be fit to plead, a person must be able:
"to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand ... the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is ... [H]e must ... have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."[27]
[26](1980) 147 CLR 1 at 8. See also Kesavarajah v The Queen (1994) 181 CLR 230 at 244 per Mason CJ, Toohey and Gaudron JJ.
[27][1958] VR 45 at 48.
A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb[28] or, more generally, because language difficulties make it impossible for him or her to make a defence[29]. The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue. In this case, the relevant statutory provisions are to be found in Pt XIA of the Crimes Act 1900 (ACT) ("the Act").
[28]See Ebatarinja v Deland (1998) 194 CLR 444.
[29]See R v Grant [1975] WAR 163; Ngatayi v The Queen (1980) 147 CLR 1 at 9 per Gibbs, Mason and Wilson JJ; Begum (1985) 93 Cr App R 96.
The third matter to be noted is that a question may arise as to an accused person's fitness to plead at any stage during the trial[30]. Particularly is that so in a case involving mental illness. This is reflected in the provisions of Pt XIA of the Act, particularly s 428E. At the time of the applicant's trial, s 428E(1) provided:
"       Where, on the trial of a person charged with an indictable offence‑
(a)     the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and
(b)    the Court is satisfied that there is a question as to the person's fitness to plead to the charge;
the Court shall order the person to submit to the jurisdiction of the [Mental Health] Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge."
[30]See Kesavarajah v The Queen (1994) 181 CLR 230.
Section 428E of the Act acknowledges in plain terms that the issue is whether "there is a question as to the person's fitness to plead", not whether he or she is, in fact, fit to plead or, even, unfit to plead. It also acknowledges difficulties that can sometimes arise when a person is not fit to plead by allowing that the issue can be raised by a party or by the court and, thus, need not be raised by the accused or by his or her legal representatives.
The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial[31]. Certainly, that is the position where the issue of fitness to plead is raised before or during a trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, "no proper trial has taken place [and the] trial is a nullity."[32] To put the matter another way, there is a fundamental failure in the trial process.
[31]See R v Dashwood [1943] KB 1; R vBeynon [1957] 2 QB 111. See also Hale, The History of the Pleas of the Crown, (1736), vol 1 at 34-35 where it was said:
" If a man in his found memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his [f]renzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment ... And if such person after his plea, and before his trial, become of non sane memory, he shall not be tried; or, if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution.
But because there may be great fraud in this matter, yet if the crime be notorious, as treason or murder, the judge before such respite of trial or judgment may do well to impanel a jury to inquire ex officio touching such insanity, and whether it be real or counterfeit.
If a person of non sane memory commit homicide during such his insanity, and continue so till the time of his arraignment, such person shall neither be arraigned nor tried, but remitted to gaol, there to remain in expectation of the king's grace to pardon him." (footnotes omitted)
[32]Begum (1985) 93 Cr App R 96 at 100 per Watkins LJ.

The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open[33]. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum, "the trial [is] a nullity", the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law[34]. That is the basis upon which this Court proceeded in Kesavarajah v The Queen[35] where the question of fitness to plead should have been but was not submitted to the jury for determination.
[33]Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J.
[34]Wilde v The Queen (1988) 164 CLR 365; Glennon v The Queen (1994) 179 CLR 1; Katsuno v The Queen (1999) 73 ALJR 1458 at 1469-1471 per McHugh J; 166 ALR 159 at 172-175.
[35](1994) 181 CLR 230 at 248. See also R v Gibbons [1947] 1 DLR 45 at 49-50; R v Khallouf [1981] VR 360.
Traditionally, an accused person has not been put on trial unless fit to plead because of "the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing"[36]. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.
[36]Proceedings in the Case of John Frith for High Treason (1790) 22 Howell's State Trials 307 at 318.
It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication[37]. There is nothing in s 428E to suggest any departure from the common law's guarantee of a fair trial according to law or, if there be a difference, the common law's requirement that an accused person not be tried unless he or she is fit to plead. On that basis, s 428E is to be construed as doing no more than directing the trial judge as to the steps to be taken if "on the trial of a person ... the issue of fitness to plead ... is raised". It says nothing as to the situation if, for whatever reason, there is a question as to the accused's fitness to plead but the issue is not raised at the trial.
[37]See, for example, Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 93 per Isaacs J; Sorby v The Commonwealth (1983) 152 CLR 281 at 289-290 per Gibbs CJ, 309 per Mason, Wilson and Dawson JJ, 311 per Murphy J; Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635-636; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 338 per Gaudron J.
The meaning and operation of s 428E(1)(b), which is concerned with the trial judge's satisfaction "that there is a question as to the person's fitness to plead", should also be noted. The statutory scheme considered in Kesavarajah required the question of fitness to plead to be referred to a jury. It was held in that case that the issue had to be left to the jury "unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried."[38] Because the issue to which s 428E directs attention is neither fitness to plead nor unfitness to plead, but the existence of a question as to fitness to plead, a court will necessarily be satisfied for the purposes of that section that there is such a question unless the Mental Health Tribunal could not reasonably find the accused not fit to plead.
[38](1994) 181 CLR 230 at 245.
This Court's power to receive evidence on the question of fitness to plead
The question whether this Court can receive evidence going to the applicant's fitness to plead does not arise simply because that issue was not raised at his trial or in the Federal Court. It arises because of the nature of an appeal postulated by s 73 of the Constitution. Relevantly, s 73 confers jurisdiction on this Court to hear appeals from "judgments, decrees, orders, and sentences:
(i) of any Justice or Justices exercising the original jurisdiction of the High Court;
(ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council".
In Mickelberg v The Queen[39], this Court affirmed its earlier decisions that s 73 of the Constitution does not authorise the reception of fresh evidence on appeal. The decision in Mickelberg was not based on any conception as to the nature of an appeal as at 1900, although that was a matter referred to by Mason CJ[40]. The basis of the decision was the distinction between this Court's original and appellate jurisdiction[41], original jurisdiction being conferred by s 75 and pursuant to s 76 of the Constitution, whilst appellate jurisdiction is conferred by s 73.
[39](1989) 167 CLR 259.
[40](1989) 167 CLR 259 at 269. See also Scott Fell v Lloyd (1911) 13 CLR 230 at 234 per Griffith CJ.
[41](1989) 167 CLR 259 at 269-271 per Mason CJ, 297-299 per Toohey and Gaudron JJ.
In Mickelberg, Toohey J and I pointed out that when an appellate court reaches a decision by reference to evidence called for the first time in that court, it is exercising original jurisdiction notwithstanding that the proceeding is called an appeal[42]. Because ss 75 and 76 constitute a complete and exhaustive statement of this Court's original jurisdiction[43], s 73 does not authorise the receipt of evidence on appeal from a State court exercising non-federal jurisdiction. And because s 73 does not relevantly distinguish between appeals from State courts exercising non-federal jurisdiction and appeals from courts exercising federal jurisdiction, that provision must be construed as not authorising the receipt of further evidence no matter the court from which the appeal is brought.
[42](1989) 167 CLR 259 at 298, see also at 267-271 per Mason CJ (agreeing). See also Werribee Council v Kerr (1928) 42 CLR 1 at 20 per Isaacs J; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 109-110 per Dixon J; Davies and Cody v The King (1937) 57 CLR 170 at 172 per Latham CJ.
[43]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
To say that s 73 does not authorise the receipt of further evidence in the exercise of this Court's appellate jurisdiction is not to say that Parliament may not confer original jurisdiction with respect to the matters specified in ss 75 and 76 of the Constitution in such a way that, in conjunction with an appeal from a court exercising federal jurisdiction, this Court may receive further evidence and, having regard to that evidence, set aside the decision of the court from which the appeal is brought or, if it be appropriate, substitute its own decision in the matter[44]. In my view, there is no constitutional inhibition on the Parliament legislating to that effect.
[44]See Mickelberg v The Queen (1989) 167 CLR 259 at 271 per Mason CJ. See also at 297-299 per Toohey and Gaudron JJ.
Further, the Parliament can, in my view, legislate to enable this Court to receive further evidence in respect of matters which originate in the courts of a Territory. That is because, as I explained in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[45], the existence of a Territory court is ultimately sustained by a law under s 122 of the Constitution and the rights, duties and obligations in question in a matter before a Territory court must ultimately depend for their enforcement on the law by which the existence of that court is sustained. They, thus, arise under that law. And for the reasons I explained in Northern Territory v GPAO[46], a law under s 122 is a law of the Commonwealth for the purposes of s 76(ii) of the Constitution.
[45](1999) 73 ALJR 1324; 165 ALR 171.
[46](1999) 196 CLR 553.
Moreover, it may be as Toohey J and I pointed out in Mickelberg[47], that so far as concerns appeals with respect to matters falling within s 75 of the Constitution, s 75 is itself a source of power for this Court to receive further evidence on the hearing of an appeal in a matter falling within that provision. However, the present matter is not one falling within s 75.
[47](1989) 167 CLR 259 at 298-299.
It follows from what has been written that, if special leave were granted to the applicant, this Court could only receive further evidence on the hearing of an appeal if it were to depart from its decision in Mickelberg or if the Parliament has authorised that course.
There are two arguments favouring reconsideration of the decision in Mickelberg. The first is that s 73 should be construed in the light of the modern meaning of an appeal which, it is said, encompasses an appeal in which an appellate court can receive further evidence and, having regard to that evidence, set aside the decision under appeal. However, that argument overlooks the distinction which Ch III clearly draws between original and appellate jurisdiction.
The second argument favouring reconsideration of Mickelberg is that, in the words of Deane J in that case, this Court may be fettered in its "ability ... to do justice in the exercise of its general appellate jurisdiction under the Constitution."[48] Indeed, it might be thought that this case establishes that very proposition. This notwithstanding, it is this Court's duty to do justice according to law and under the Constitution. It is only if s 73 is capable of being construed so as to permit of the receipt of further evidence that this Court should reconsider Mickelberg.
[48](1989) 167 CLR 259 at 280.
Section 73 must be construed, in my view, in the context of the provision made by ss 75 and 76 of the Constitution with respect to the original jurisdiction of this Court. When so construed, s 73 does not permit of any conclusion other than that reached in Mickelberg. Accordingly, the evidence which the applicant wishes to place before this Court can be received on appeal only if the Parliament has legislated to that effect.
The only presently relevant provision with respect to appeals from the Federal Court to this Court is s 33 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). That section provides, in sub-s (1), as follows:
" The jurisdiction of the High Court to hear and determine appeals from judgments of the [Federal] Court, whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section."
Succeeding sub-sections deal with various exceptions and regulations, but not with the question of this Court's power to receive further evidence on appeal.
Section 33(1) of the Federal Court Act does not purport to confer jurisdiction on this Court. Rather, it specifies exceptions and regulations with respect to the jurisdiction which this Court otherwise has with respect to appeals from the Federal Court. That jurisdiction is the jurisdiction conferred by s 73 of the Constitution and, as Mickelberg holds, this Court cannot receive further evidence in exercise of that jurisdiction. It follows that the grant of special leave to enable this Court to receive evidence going to the applicant's fitness to plead at the time of his trial would be futile. To the extent that the applicant seeks special leave for that purpose, the application should be refused.
The appellate function of the Federal Court in relation to fitness to plead
The Federal Court has jurisdiction pursuant to s 24(1)(b) of the Federal Court Act to hear and determine "appeals from judgments of the Supreme Court of a Territory". By s 27 of that Act, the Federal Court is to "have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence". And pursuant to s 28(1) it may, in the exercise of its appellate jurisdiction:
"(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;
(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial".
By s 28(3) of the Federal Court Act, the Federal Court may exercise the powers conferred by s 28(1) "notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision."
It was held by the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher that an appeal under s 24 of the Federal Court Act is "neither a trial de novo nor a trial of the case afresh on the record"[49]. So much may be accepted for the purposes of this matter. However, it is a fundamental rule of construction that statutory provisions conferring powers on a court are not to be read as subject to limitations which are not required by their terms[50].
[49](1992) 35 FCR 359 at 369. See also Duralla Pty Ltd v Plant (1984) 2 FCR 342.
[50]Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 301; Oshlack v Richmond River Council (1998) 193 CLR 72 at 81.
When ss 24(1), 27 and 28(1) and (3) of the Federal Court Act are construed on the basis that they are not subject to limitations which their terms do not require, it is clear that the Federal Court has power to set aside a verdict on the ground that there was a fundamental failure in the trial process and, subject to hearing the parties on that issue, to do so whether or not the Notice of Appeal is directed to that issue. Moreover, it has power to receive evidence on the issue.
Earlier, I drew attention to the fact that, if there is a fundamental failure in the trial process, an appellate court proceeds on a different basis from that on which it proceeds when there is an error on the part of the trial judge or a blemish in the trial. In the former situation, there is no occasion to apply the proviso to the common criminal appeal provisions by asking whether the appellant lost a chance of acquittal that was fairly open. There is another difference. There can be a fundamental failure in the trial process without any error on the part of the trial judge. For example, there may be a failure of that kind because, without the knowledge of the trial judge, the jury is not properly constituted[51].
[51]See Katsuno v The Queen (1999) 73 ALJR 1458 at 1466-1467 per Gaudron, Gummow and Callinan JJ; 166 ALR 159 at 168-170.
In the present case, the trial judge would have been in error if, after an issue was raised as to the applicant's fitness to plead, he failed to take the steps required by s 428E(1) of the Act[52]. So, too, he would have been in error if, although neither the prosecution nor defence raised that issue, there was material which suggested that there was such an issue and the trial judge failed to raise it. However, no suggestion is made that there was any material of that kind. Thus, the only question that arises is as to the role of the Federal Court if there was material before that court suggesting that there was an issue as to the applicant's fitness to plead at the time of his trial.
[52]See Kesavarajah v The Queen (1994) 181 CLR 230; R v Khallouf [1981] VR 360.
Two matters which were earlier referred to bear directly on the role of the Federal Court. The first is the basic tenet of the common law that, unless a person is fit to plead, there can be no trial and its corollary that, if he or she was not fit to plead, there was no trial or, as it is generally put, there was a fundamental failure in the trial process. The second is that a person who is not fit to plead may lack the capacity to raise that issue whether at trial or on appeal. In that context, it is convenient to note the manner in which the law protects a person's right not to be put on trial unless fit to plead.
Unless there is material to suggest otherwise, a person is presumed fit to plead. And that is so both at trial and on appeal[53]. At trial however, that presumption is displaced if there is material which raises a question as to that person's fitness to plead. Moreover, if there is a question as to the accused person's fitness to plead, the trial must stop unless and until the appropriate body determines that he or she is fit to plead.
[53]As to the position on appeal, see R v Dashwood [1943] KB 1.
Once it is accepted that the law acknowledges that a person who is not fit to plead may also lack the capacity to raise that issue, it must follow that the role of an appellate court differs from that of a trial judge in one respect only, namely, that it looks to the past whereas the trial judge is concerned with events as they are happening. More precisely, if there is material suggesting that the appellant was not fit to plead, an appellate court must inquire whether, at the time of the trial, the appropriate tribunal could not reasonably have found the appellant not fit to plead.
Where, on appeal to the Federal Court, there is material suggesting that an appellant was not fit to plead at his or her trial, that court may, if necessary, appoint an expert under O 34 r 2 of the Federal Court Rules[54] to inquire into and report on the question. If after inquiry, it is determined that it cannot be said that the appropriate tribunal could not reasonably have found the appellant not fit to plead, the verdict must be set aside and an order made for a new trial at which, if there is still an issue as to his or her fitness to plead, it can be properly determined.
[54]Order 34 r 2(1) provides:
" Where a question for an expert witness arises in any proceedings the Court may, at any stage of the proceedings, on its own motion or on application by a party or the Registrar:
(a)appoint an expert as court expert to inquire into and report upon the question;
(b)authorize the court expert to inquire into and report upon any facts relevant to his inquiry and report on the question;
(c)direct the court expert to make a further or supplemental report or inquiry and report; and
(d)give such instructions as the Court thinks fit relating to any inquiry or report of the court expert."
The material before the Federal Court
The Federal Court had before it details of the applicant's behaviour at trial. In this regard, it is sufficient to note the Federal Court recorded that, on the first day of his trial, the applicant terminated the instructions of counsel and informed the trial judge that he had done so because "police intimidation had been 'condoned' by the Court ... and ... [counsel] had refused to conduct the defence in accordance with his instructions."[55] The trial proceeded with counsel later being reinstated. Thereafter, however, instructions were withdrawn and, later, reinstated with some frequency, sometimes with the applicant instructing new lawyers. In this regard, the Federal Court observed:
"It cannot be said that the [applicant] acted with justification in so frequently dismissing his lawyers. If he were justified in terminating their instructions, why then would he have re-engaged them on so many occasions? Any suggestion that the answer to that question rests in an acknowledgment of fault by counsel would be ridiculed by the number of times their supposed incompetence or refusal to accept instructions allegedly justified their dismissal."[56]
[55]Eastman v The Queen (1997) 76 FCR 9 at 32-33.
[56](1997) 76 FCR 9 at 33.

The Federal Court described the circumstances in which the applicant terminated counsel's instructions on 10 October and thereafter proceeded to represent himself as "astonishing" and recorded this account of that event:
"[The applicant] claimed ... that he had heard [counsel] say [to a person in the courtroom] 'Don't you stare at me like that you flea' ... The [applicant] told the Court that when he inquired of him, [counsel] said that the other person was a police officer but that he refused to disclose his identity ... The [applicant] ... said that '... if my counsel is distracted by a police officer in this court moments before addressing the jury it becomes of interest to me against the background of numerous such incident [sic] going on over the last six years'."[57]
[57](1997) 76 FCR 9 at 34.
The Federal Court noted that the frequent changes in legal representation were "indicative of the [applicant's] inability to work in harmony with his lawyers."[58] It also noted that, during his trial, the applicant "made vile, foulmouthed, vituperative comments"[59] and that "there were occasions when [he] was invited by the trial judge to cross-examine a witness, only to be met with a tirade of abuse."[60]
[58](1997) 76 FCR 9 at 34.
[59](1997) 76 FCR 9 at 34.
[60](1997) 76 FCR 9 at 35.
Standing alone, the events recorded by the Federal Court are capable of being viewed as a manipulative attempt to subvert the trial. Particularly is that so, if, as was put in argument in this Court, the applicant displayed a high order of intelligence in the way he put various arguments during the period when he was unrepresented. However, there was material before the Federal Court which was capable of suggesting another explanation for the applicant's behaviour.
As already mentioned, the applicant was under surveillance, including electronic surveillance, for some time prior to his trial. It emerged during the trial when the applicant cross-examined a prosecution witness that that surveillance had been undertaken, at least in part, because of concerns that had been raised with investigating police by Dr Milton, a psychiatrist who, apparently, had been retained to advise them[61]. Dr Milton's reports were produced by the prosecution and marked for identification, but not tendered in evidence[62]. Thus, it may be taken, the contents of those reports did not come to the attention of the trial judge.
[61](1997) 76 FCR 9 at 46.
[62](1997) 76 FCR 9 at 49.
In the Federal Court, Dr Milton's reports were received for the purpose of enabling an argument to be put on ground 13 of the grounds of appeal which raised, albeit not directly, the question of the applicant's surveillance. That is the ground which complained of "[t]he inability of the [applicant] to adequately prepare his defence and instruct Counsel at trial by reason of actions by the Prosecution".
The reports of Dr Milton span a period from 20 February 1989 until 4 September 1992, less than three years before the applicant's trial commenced. In his first report, Dr Milton noted that a Dr McDonald, who, at one stage, had been the applicant's treating doctor, concluded that he was "suffering from paranoia, a rare psychotic condition characterised by well systematised paranoid delusions."
In his second report, Dr Milton noted that some of the recorded material suggested that "some of [the applicant's] utterances while alone [might be] a response to hallucinatory voices" and expressed the opinion that the applicant manifested "at the very least a severe form of the condition known as paranoid personality". Later in that report, he expressed the view that the applicant "should ... be regarded as psychotic (ie insane) ... the paranoid features of his disorder and his high intelligence allowing the more serious aspects of his condition to be concealed." He added that he inclined to the view earlier expressed by Dr McDonald that the applicant "suffer[ed] a paranoid psychosis and [would] eventually need to be institutionalised".
In a report of 6 September 1990, Dr Milton noted the possibility that the applicant was taking "Largactil or Melleril, both major tranquillisers used in severe mental disorders." Later, in January 1992, he recorded that the applicant's emotional disorder was "sufficiently severe as to be likely to qualify for a defence of diminished responsibility were he to face trial for Mr Winchester's murder." In his final report of 4 September 1992, he noted certain claims made by the applicant and described them as "the typical comments of a paranoid person". He again repeated his view that the applicant was "for practical purposes, psychotic, ie out of touch with reality", adding, however, that it would be difficult "to substantiate [that opinion] in terms of the ... Mental Health Act".
Dr Milton's reports suggest the possibility of a different explanation for the applicant's behaviour at trial from that adopted by the trial judge. They suggest a mental illness that might have worsened with the passage of time. And given that possibility, they suggest that the applicant might not have been capable of performing some or all of the functions identified in Presser. They, thus, raise the possibility that he might not have been fit to plead at the time of his trial.
Conclusion and orders
Because the material before the Federal Court raised the possibility that the applicant might not have been fit to plead at the time of his trial, that court, of its own initiative, should have raised the issue of the applicant's fitness to plead and thereafter proceeded to take evidence and to determine whether, at the time of his trial, there was a question as to his fitness to plead.
Special leave should be granted so far as concerns the question whether there was material before the Federal Court raising an issue as to the applicant's fitness to plead and the appeal treated as instituted instanter. The appeal should be allowed, the order of the Federal Court dismissing the applicant's appeal should be set aside and the matter remitted to that court for further hearing and determination as to whether there was a question as to the applicant's fitness to plead at the time of his trial.

McHUGH J. The applicant seeks special leave to appeal against an order of the Full Court of the Federal Court of Australia which dismissed his appeal against a conviction for murder after a trial before a jury in the Supreme Court of the Australian Capital Territory. The ground of the application is that the Full Court erred in failing to determine whether the trial judge had erred in not investigating whether the applicant was unfit to plead to the charge. If special leave to appeal were granted, the applicant would seek to lead evidence in this Court tending to prove his alleged unfitness to plead. To make good his claim that the case is one for the grant of special leave to appeal, the applicant also wishes to put that evidence before this Court on the leave application.
In my opinion, the application must be dismissed on the ground that this Court, when hearing an appeal, has no power to receive evidence that was not before the court whose order is the subject of the appeal. Once that conclusion is reached, the grant of special leave to appeal would be futile because an appeal could not succeed. Nor do I think that special leave to appeal should be granted to determine whether, on the materials before the Full Court, it should have examined whether the trial judge erred in not investigating the issue of the applicant's fitness to plead. Fitness to plead was not an issue before the trial judge or the Full Court. That being so, the Full Court made no error. Because the applicant cannot point to any error by the Full Court, this Court should not grant special leave to appeal to deal with a question raised for the first time in this Court even if our appellate jurisdiction extends to a case where the point has not been raised in any court before the matter reached this Court.
This Court has no jurisdiction to hear further evidence in an appeal
The appellate jurisdiction of this Court arises from s 73 of the Constitution which provides:
"The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:
(i)of any Justice or Justices exercising the original jurisdiction of the High Court;
(ii)of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;
(iii) of the Inter-State Commission, but as to questions of law only;
and the judgment of the High Court in all such cases shall be final and conclusive.
But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court."
When the Constitution was enacted in 1900, a grant of appellate jurisdiction was not seen as carrying with it a power to receive further evidence[63]. An appeal meant[64] and, in my view, still means "the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below." (emphasis added) When the appeal is an appeal in the true sense, therefore, no appealable error exists if the trial court has correctly found the facts on the material before it and correctly applied the law to those facts in the course of deciding the issues raised before it for determination. Because that is so, the grant of appellate jurisdiction to a court does not authorise it to decide the case on the basis of a change in the law since the original decision was made[65]. Nor does a grant of appellate jurisdiction authorise it to hear evidence that was not before the court whose order is the subject of appeal[66]. As Isaacs J pointed out in Werribee Council v Kerr[67], "[t]he appellate Court judges for itself whether there has been an error from the materials which were before the Court below, so far as it can".
[63]Donegani v Donegani (1835) 3 Knapp 63 at 88 [12 ER 571 at 581]; Ponnamma v Arumogam [1905] AC 383 at 388; Mickelberg v The Queen (1989) 167 CLR 259 at 270.
[64]Attorney-General v Sillem (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209].
[65]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73.
[66]Ronald v Harper (1910) 11 CLR 63; Scott Fell v Lloyd (1911) 13 CLR 230; Werribee Council v Kerr (1928) 42 CLR 1 at 20; Davies and Cody v The King (1937) 57 CLR 170; Crouch v Hudson (1970) 44 ALJR 312.
[67](1928) 42 CLR 1 at 21.
Authority for an appellate court to receive further evidence must come from a grant of legislative power in addition to a mere grant of appellate jurisdiction. It does not come from the simple grant of appellate jurisdiction because an appeal is the right of entering a superior court to redress the error of the court below[68] and whether that court erred is to be determined on the materials before it[69]. The power to receive further evidence is usually expressly granted but it may be implied where the appeal is stated to be one by way of re-hearing[70]. There does not appear to be any case where a court has held that the simple grant of appellate jurisdiction carries with it the right to admit further evidence in hearing the appeal. Furthermore, where a court is given jurisdiction to hear "appeals" but with power to re-hear the matter or to take new evidence, it is not exercising appellate jurisdiction in its true sense. In such cases, as Jessel MR pointed out in Quilter v Mapleson[71], the jurisdiction exercised by the appellate court is an amalgam of appellate and original jurisdiction.
[68]Attorney-General v Sillem (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209].
[69]Quilter v Mapleson (1882) 9 QBD 672 at 676; Ponnamma v Arumogam [1905] AC 383 at 390.
[70]Ex parte Currie; Re Dempsey (1968) 70 SR (NSW) 1.
[71](1882) 9 QBD 672 at 675-676.
Most appellate courts today are given a statutory power to receive further evidence on appeal. In some cases, if the appeal is by way of re-hearing, it may be possible to infer an implied power to receive further evidence. When such a power is conferred, expressly or inferentially, the "appellate" court decides the case on all the facts as it finds them to exist as at the date of hearing. But the court is not exercising appellate jurisdiction in its true sense.
When no statutory power to receive evidence has been conferred, the court must decide the case on the basis of the evidence before the trial court. In such cases, a further question frequently arises as to whether the appeal is an appeal in the true sense, that is, an appeal decided on the facts and law as they existed at the date of the lower court's order or an appeal by way of re-hearing. If the appeal is by way of re-hearing, the appellate court decides the case on the law as it applied at the date of its order disposing of the appeal.
The jurisdiction which s 73 of the Constitution confers on this Court is jurisdiction "to hear and determine appeals". The section confers no express power to receive further evidence in hearing an appeal. That being so, this Court has consistently taken the view[72] that s 73 gives the Court no jurisdiction to decide an appeal on the basis of evidence that was not before the court whose order is the subject of appeal. That view of s 73 was recently confirmed in Mickelberg v The Queen[73].
[72]Ronald v Harper (1910) 11 CLR 63; Scott Fell v Lloyd (1911) 13 CLR 230; Werribee Council v Kerr (1928) 42 CLR 1; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; Davies and Cody v The King (1937) 57 CLR 170; Crouch v Hudson (1970) 44 ALJR 312.
[73](1989) 167 CLR 259.
The decisions in Mickelberg and the earlier cases accord with the division made by Ch III of the Constitution between original and appellate jurisdiction. By exercising the powers referred to in ss 75, 76 and 77 of the Constitution, the Parliament can authorise a federal court other than the High Court to review a decision and call the review "an appeal" even though Parliament authorises the court to hear new evidence or re-hear the matter. The jurisdiction so conferred will be authorised by s 77(i) of the Constitution, but it will not be appellate jurisdiction in the true sense even if Parliament calls the matter in respect of it an appeal. It will be original jurisdiction or, depending upon the powers of the reviewing court, a combination of original and appellate jurisdiction, the power conferred on the Parliament by s 77(i) in respect of federal courts other than the High Court being wide enough to confer any form of appellate jurisdiction on those courts[74].
[74]Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529; CDJ v VAJ (1998) 72 ALJR 1548; 157 ALR 686.
Subject to the Constitution, the Parliament may also be able to give this Court a similar power of review and call it "an appeal". But, assuming that the grant of jurisdiction is not invalid by reason of a negative implication in s 73 that the Court cannot "review" a decision other than by way of appeal, the plain words of ss 75 and 76 show that the grant of such a jurisdiction to this Court could only be original jurisdiction. It could not be appellate jurisdiction because s 77(i) does not apply to this Court and ss 75 and 76 would be the only source of power for such a jurisdiction. The jurisdiction conferred by s 73 is true appellate jurisdiction and any other jurisdiction conferred on the High Court can only be original jurisdiction, whatever label Parliament places upon it.
In my opinion, the earlier cases and Mickelberg correctly establish that in s 73 of the Constitution "appeal" means an appeal in its true sense. Not only is the ordinary meaning of "appeal" in a legal context "the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below"[75], but the Constitution draws a distinction between the original and appellate jurisdiction of this Court. Add to those matters the omission in the Constitution of any power to admit further evidence and the knowledge that in 1900 a simple grant of appellate jurisdiction required the appellate court to determine whether the decision appealed against was rightly decided upon the facts and the law existing at the time of the decision[76], and the case for concluding that "appeal" in s 73 is an appeal in the true sense becomes irresistible.
[75]Attorney-General v Sillem (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209].
[76]Donegani v Donegani (1835) 3 Knapp 63 at 88 [12 ER 571 at 581]; Ponnamma v Arumogam [1905] AC 383 at 388; Mickelberg v The Queen (1989) 167 CLR 259 at 270.
Moreover, there is a good reason why the framers of the Constitution may have preferred that the right of appeal to this Court should be an appeal in the true sense rather than an "appeal", which would be an amalgam of original and appellate jurisdiction, with the right to adduce fresh evidence. If s 73 had contemplated such an appeal, the laws governing the admissibility of evidence on the appeal might depend on federal law, not State law, unless the federal Parliament made State law applicable. The result might be that the rights of the citizens of the States in areas of State law would eventually be determined on evidence that, for one reason or another, could not be admitted in the courts of the States. It was one thing for the people of the States to have their cases finally determined by this Court on evidence adduced in accordance with the laws and policies of the States governing those cases at the time that they were heard in the States; it was another matter altogether to have their cases determined in accordance with evidence adduced pursuant to a combination of State and federal law, and in accordance with what happened to be the substantive State law when this Court heard those cases.
In Mickelberg, Deane J dissented. His Honour thought that the appellate jurisdiction referred to in s 73 of the Constitution carried with it the right to admit further evidence because:
(1) "Section 73 was clearly intended to confer upon the Court an equivalent jurisdiction to that exercised by the Privy Council on appeals from the Supreme Courts of the Australian Colonies prior to Federation."[77]
(2) In 1900 the Judicial Committee of the Privy Council had the power to receive further evidence on such appeals[78].
(3) It is highly unlikely that it would have been intended that the grant of jurisdiction contained in s 73 should be confined in a way which would make the powers of this Court on appeals from State Supreme Courts significantly more restricted than were the powers of the Privy Council on such appeals at the time of the establishment of the Constitution."[79]
(4) A grant of jurisdiction contained in s 73 being so confined would lead to the "bizarre situation" that this Court could not receive further evidence but on appeal from this Court to the Privy Council (during the period in which such appeals did lie), the Privy Council could receive the evidence[80].
[77]Mickelberg v The Queen (1989) 167 CLR 259 at 283.
[78]Mickelberg v The Queen (1989) 167 CLR 259 at 283.
[79]Mickelberg v The Queen (1989) 167 CLR 259 at 284.
[80]Mickelberg v The Queen (1989) 167 CLR 259 at 284.

It is enough to point out with respect to the earlier reports that they contain similar observations about the conduct of the applicant and his mental condition, including that the applicant probably had a genetic predisposition to a severe mental disorder. One further reference is required and that is to a prognosis made in a report by Dr Milton of the view of another psychiatrist, Dr McDonald who had earlier formed the view that the applicant had been suffering paranoid psychosis and would need to be institutionalised eventually[456].
[456]See the report of Dr Rod Milton dated 15 January 1990 at 5.
I interpolate at this point that any deficiencies in form in Dr Milton's evidence (by reason of its hearsay nature and otherwise) should be treated as having been cured by the concessions of the respondent at the appeal that I have quoted.
Little in my opinion turns upon Dr Milton's statement that "it would be difficult to substantiate this [the applicant's psychotic state] in terms of the present Mental Health Act". Section 68(2)(a) of the Mental Health (Treatment and Care) Act requires the Tribunal to determine on the balance of probabilities whether or not a person the subject of the charge is fit to plead to it. Fitness is nowhere defined and should not be taken to be synonymous with any particular or necessarily precise psychiatric definition.
I have formed the opinion that the Milton reports and the recorded manifestations of the applicant's behaviour at the trial taken in combination, did present a question for decision by the Full Court, whether or not there was a need to consider the possibility that he might not be fit to plead. At the very least the Milton reports point to a highly disturbed, often, delusional person with irrational thoughts and suffering a diagnosable psychiatric condition which might become progressively worse beyond the period with which the reports were concerned. On one view, certainly, his conduct at the trial could be regarded as merely manipulative, but on another, it could be seen as irrational and highly prejudicial to his own cause: in particular, to state repeatedly to the trial judge, as he did, that his Honour was condoning judicial harassment could not possibly have improved his prospects.
Regard might also be had to his highly erratic performance in reinstating and withdrawing instructions for his defence the details of which are set out in the judgment of the Full Court[457]:
[457] (1997) 76 FCR 9 at 32-34.
"Before proceeding to a consideration of the grounds of appeal it is necessary to say something about the appellant's legal representation during the course of the trial. It would not be an exaggeration to describe it as chaotic.
On the first day of the trial, 2 May 1995, Mr Williams QC appeared but only to announce that his instructions and those of his junior and his instructing solicitors had been withdrawn. The appellant sought an adjournment of the trial because he was unrepresented, saying that if the adjournment was not granted he would not take part in the proceedings. The appellant informed his Honour of his reasons for withdrawing those instructions. He said that police intimidation had been 'condoned' by the Court; he claimed that the Court had refused to take contempt proceedings at his request against certain police officers and he claimed that Mr Williams had refused to conduct the defence in accordance with his instructions. The application for an adjournment was refused and the matter proceeded.
On 15 May 1995, the fifth day of the trial, Mr Williams QC appeared, informing the Court that he had, once again, been instructed to act on behalf of the appellant. He unsuccessfully sought an adjournment of the trial and a permanent stay of the proceedings. On the next day, shortly after the jury had been empanelled, Mr Williams' instructions were again terminated and the appellant was, once more, without legal representation.
On 18 May 1995, the eighth day of the trial, Mr O'Donnell announced his appearance for the appellant but on 22 May (which was the next day of the trial), he advised the Court that he had withdrawn from the case. The appellant, however, made it clear that he had terminated Mr O'Donnell's instructions because he had allegedly walked out of a conference.
On 22 May, Mr Peter Baird appeared for the appellant but on the same day he sought leave to withdraw.
On 31 May 1995, the 15th day of the trial, Mr O'Loughlin announced his appearance for the appellant, informing the Court that he would be led by Mr Terracini. He sought an adjournment until 12 June to enable him and Mr Terracini to read the brief and prepare the defence. His Honour refused that application, stating that it was his opinion that the appellant had become unrepresented through his own fault. His Honour's rulings on this aspect of the trial have not been challenged on appeal.
The matter proceeded with Mr O'Loughlin appearing for the defence until 5 June when he was joined by Mr Terracini. From that date until 29 June, the 30th day of the trial, the appellant was represented by both counsel.
On 29 June the appellant terminated his counsel's instructions. Thereafter, Mr Terracini and Mr O'Loughlin moved in and out of the trial as their instructions were first withdrawn and then reinstated. It cannot be said that the appellant acted with justification in so frequently dismissing his lawyers. If he were justified in terminating their instructions, why then would he have re-engaged them on so many occasions? Any suggestion that the answer to that question rests in an acknowledgment of fault by counsel would be ridiculed by the number of times their supposed incompetence or refusal to accept instructions allegedly justified their dismissal. This is apparent from the following timetable:
Day 33            10 July 1995  Re-instructed
     Day 33            10 July 1995  Instructions Terminated
     Day 34            11 July 1995  Re-instructed
     Day 36            13 July 1995  Instructions Terminated
     Day 37            14 July 1995  Re-instructed
     Day 39            18 July 1995  Instructions Terminated
     Day 39            18 July 1995  Re-instructed
     Day 39            18 July 1995  Instructions Terminated
     Day 41            20 July 1995  Re-instructed
     Day 46            27 July 1995  Instructions Terminated
     Day 48            31 July 1995  Re-instructed
     Day 50               2 August 1995                  Instructions Terminated
     Day 52               8 August 1995                  Re-instructed
     –  11 August 1995                  Instructions Terminated
     Day 65            31 August 1995                  Re-instructed
     Day 78            25 September 1995            Instructions Terminated
     Day 80               3 October 1995                Re-instructed
     Day 84            10 October 1995                Instructions Terminated
The circumstances under which Mr Terracini's instructions were terminated for the last time on 10 October were quite astonishing. The appellant claimed (in the absence of the jury) that he had heard Mr Terracini have a verbal altercation with a person in the Courtroom shortly before the commencement of proceedings. He claimed that he heard Mr Terracini say 'Don't you stare at me like that you flea'. It would seem that this assertion was made by the appellant in the absence of counsel after Mr Terracini had informed the Court that all instructions had been terminated, although the transcript does not record the withdrawal of counsel. The appellant told the Court that when he inquired of him, Mr Terracini said that the other person was a police officer but that he refused to disclose his identity to the appellant. The appellant, when addressing his Honour, said that '... if my counsel is distracted by a police officer in this court moments before addressing the jury it becomes of interest to me against the background of numerous such incident [sic] going on over the last six years'.
Later the appellant said to his Honour that he was 'determined to make an issue of it'. So it was that when Mr Terracini subsequently refused to name the officer, his instructions were terminated. It was for Mr Terracini – not for the appellant – to make an assessment of the situation; he was the person who had been involved in the altercation; he was the one best able to decide what (if any) action should be taken. As his Honour said, Mr Terracini was 'an experienced, responsible member of the bar' who was 'well aware of his duties to his client'. In an expression of confidence in counsel, his Honour added that he had no doubt that Mr Terracini would have been satisfied that the incident did not in any way operate to the prejudice of the appellant. Regrettably, the appellant would not accept the views of his Honour; he was prepared to see his murder trial proceed without the benefit of counsel if his counsel would not submit to his unreasonable demands.
As from 10 October, the appellant remained without legal representation for the balance of the trial. This summary, which has not included his many changes of lawyers during the period preceding the trial, is indicative of the appellant's inability to work in harmony with his lawyers."
On the other hand, his conduct was often that of an articulate and resourceful person and it is only the combination of the observations and opinions stated in the Milton reports and the recorded manifestations of his personality at the trial that bring me to the conclusion I have reached, that the applicant may have been unfit to plead.
The second question is what orders could and should the Federal Court have made other than the order dismissing the appeal.
Section 27[458] of the Federal Court of Australia Act 1976 (Cth) provides that in an appeal the Federal Court shall have regard to the evidence given in the proceedings out of which the appeal arose. The Court has the power to draw inferences of fact and, in its discretion, to receive further evidence. This evidence may be taken, as appropriate, orally or in written form. This provision has been conservatively construed by the Full Federal Court and in a manner somewhat similar to the way in which other courts of ample jurisdiction have approached the question whether the evidence is receivable as "fresh evidence"[459].
[458]Section 27 provides:
"Evidence on appeal
In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:
(a)on affidavit; or
(b)by video link, telephone or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or
(c)by oral examination before the Court or a Judge; or
(d)otherwise in accordance with section 46."
[459]Turner v Jupiters Management Ltd (1989) 29 IR 276 at 277 per Northrop J; Australian Bank Employees Union v Australia and New Zealand Banking Group Ltd (1990) 94 ALR 667 at 672 per Northrop J.
It is unnecessary in this case to comment upon the correctness or otherwise of those decisions of the Full Court of the Federal Court and to decide whether further evidence as used in s 27 of the Federal Court of Australia Act should have the same meaning as that term was construed by this Court to have when used in the Family Law Act 1975 (Cth) in CDJ v VAJ[460].
[460](1998) 72 ALJR 1548 at 1558-1559 per McHugh, Gummow and Callinan JJ; 157 ALR 686 at 700.
By consent (subject to relevance) the evidence was received here. Plainly it did have relevance, not only to the grounds argued in respect of it, but also, as it turns out, to the matter with which this Court is concerned, and, in an ideal world, the Full Court might have discerned.
Division 2 of Pt XIA of the Crimes Act 1900 (ACT) is concerned with, inter alia, fitness to plead. Section 428E provides that where on the trial of a person charged with an indictable offence if the Court is satisfied that there is a question as to the person's fitness to plead to the charge the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge. Section 428E which appears in that division provides as follows:
"Division 2 – Unfitness to plead
428E Referral to Tribunal
(1) Where, on the trial of a person charged with an indictable offence –
(a)the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and
(b)the Court is satisfied that there is a question as to the person's fitness to plead to the charge;
the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge.
(2) Where the Court makes an order under subsection (1), it shall adjourn the proceedings to which the order relates and shall make such orders as it considers appropriate, including the granting of bail to the person who is the subject of the order."
Whilst in terms the section refers to a trial and not an appeal and to the "Court" which, by definition, is the Supreme Court of the Australian Capital Territory, s 28[461] of the Federal Court of Australia Act by par (b) of sub-s (1) confers ample power upon the Full Federal Court to make such order as, in all the circumstances, it thinks fit, which would include an order, if appropriate, that the court appealed from could and would have made, had it been apprised of the further evidence available to the Full Court. The Full Court also had power pursuant to O 34 r 2 of the Federal Court Rules to inquire and report on the question.
[461]"Form of judgment on appeal
(1)Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a)affirm, reverse or vary the judgment appealed from;
(b)give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c)   set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
(d)   set aside a verdict or finding of a jury in a civil proceeding, and enter judgment notwithstanding any such verdict or finding;
(e)   set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;
(f)    grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or
(g)   award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
(2)   It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment.
(3) The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.
(4)   An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.
(5) The powers of the Court under subsection (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence."
That the Full Court should have such a power is in a case of this type particularly apt having regard to the well-established principles with respect to fitness to plead.
From very early times in England except for a period during the reign of Henry VIII[462] if a man committed a capital offence whilst of sound mind but became mad before arraignment he could not be arraigned for the crime. And as far back as pre-Norman times King Alfred hanged Cole, one of his judges because he judged Ive to death when he was a madman[463]. The English courts also recognised that a defendant who did not plead could stand "mute of malice" or mute "by visitation of God"[464]. Procedural fairness in a criminal trial requires that the accused be aware of the nature of proceedings and be capable of participation in them in a fit state to defend himself[465].
[462]33 Hen VIII c 20.
[463]See Blackstone, Commentaries on the Laws of England (1803), vol V (bk IV) at 24-25; see also Holdsworth, A History of English Law, vol VIII at 439.
[464]R v Schleter (1866) 10 Cox CC 409.
[465]Proceedings in the Case of John Frith for High Treason (1790) 22 Howell's State Trials 307 at 318.
It is now well established at common law that a finding of unfitness bars further trial and there is statutory jurisdiction in force in most jurisdictions[466] to enable this matter to be determined separately from the trial process. It has been held that, before the question of fitness has to be pursued there must be a "real question"[467] or a "real and substantial question"[468] or a "serious question"[469] on the material before the court.
[466]Mental Health (Criminal Procedure) Act 1990 (NSW), s 9; Criminal Code (NT), s 357(1); Criminal Code (Q), s 645; Mental Health Act 1974 (Q), s 29 (see R v Enright [1990] 1 Qd R 563); Criminal Law Consolidation Act 1935 (SA), Div 3 of Pt 8A; Criminal Code (Tas), s 380(1); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 7; Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 12.
[467]Ngatayi v The Queen (1980) 147 CLR 1 at 9 per Gibbs, Mason and Wilson JJ.
[468]See R v Presser [1958] VR 45 at 46 per Smith J.
[469]See R v Khallouf [1981] VR 360 at 363 per Young CJ, McInerney and Tadgell JJ.
In R v Khallouf the Full Court of the Supreme Court of Victoria (Young CJ, McInerney and Tadgell JJ) said[470]:
"[T]he question whether there was a matter to be considered and the question whether the applicant was fit to be tried seem rather to have been run together. … [I]t is important that they be kept separate."
[470][1981] VR 360 at 364 per Young CJ, McInerney and Tadgell JJ.
The statutory scheme in the ACT contemplates a similar division of issues, for the trial to be interrupted, on the basis of the possible unfitness of the accused to plead. All that must be present however, is a question as to the accused's fitness[471].
[471]Mental Health (Treatment and Care) Act, s 68(1).
Humphreys J in R v Dashwood[472] did not seem to think that existence of the possibility of unfitness to plead even needed to be founded on admissible evidence. His Lordship said[473]:
"It does not matter whether the information comes to the court from the defendant himself or his advisers or the prosecution or an independent person, such as, for instance, the medical officer of the prison where the defendant has been confined."
[472]R v Dashwood [1943] KB 1 (Humphreys, Hilbery and Tucker JJ).
[473][1943] KB 1 at 4.
It has also been said that a trial judge may rely on committal depositions and papers, psychiatric reports from prison medical staff or upon his or her own observations of the demeanour of the accused[474]. In other words an issue of fitness to plead is an issue that stands outside the ordinary rules applying to adversarial proceedings, that the issues are those upon which the parties are joined. In this case however I am content to rest my decision on the evidence which was received and could properly be treated as admissible evidence.
[474]See R v Burles [1970] 2 QB 191 at 196.

It follows in this case, in my opinion, that the Full Court could and should have given consideration to the possibility of making an order that would have had the effect of requiring the applicant's fitness to plead at his trial to be determined by the Tribunal. The precise form of that order does require some further discussion.
I agree however with the Full Court of the Supreme Court of Victoria in Khallouf[475] that satisfaction of the existence of such a question falls short of any conclusion as to the proper answer to it. As Mackay writes in Mental Condition Defences in the Criminal Law[476] there are many defendants who have warped standards of morality but are fit to plead[477].
[475]R v Khallouf [1981] VR 360 at 364 per Young CJ, McInerney and Tadgell JJ.
[476](1995) at 217.
[477]See also Duff, Trials and Punishments (1986) at 120. Duff makes a distinction between one "who understands the claims which the law makes on him, but refuses to accept those claims or to ascribe any legitimate authority to the law" and one who "cannot see the law as ... anything more than a set of orders backed by threats which give him prudential reasons for obedience".
I am of the opinion that in the circumstances the members of the Full Court should have turned their minds to the possibility of the existence of a question of the applicant's fitness to plead at the trial.
The last question is how the applicant's application for special leave to appeal to this Court should be disposed of? The issues as to whether the relevant question of fitness to plead arose, and if it did, what should follow were fully argued, with each party in agreement on the course which should be followed if the applicant were to succeed here. The respondent accepted that if the appeal were upheld the matter should be remitted to the Full Court for further hearing in that Court. Accordingly, I would order that special leave be granted, that the appeal be allowed, the order of the Full Court of the Federal Court dismissing the appeal be set aside, and that the matter be remitted to the Full Court of the Federal Court for further hearing and determination whether there was a question as to the appellant's fitness to plead at the time of the trial.