Eastman v The Queen

[2000] HCATrans 7

IN THE HIGH COURT OF AUSTRALIA

Registry  No C5 of 1997

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 FEBRUARY 2000, AT 10.18 AM

(Continued from 25/3/99)

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the applicant.  (instructed by J. F. Boersig)

MR T.A. GAME, SC:   If the Court please, I appear with my learned friend, MR R.C. REFSHAUGE, for the respondent.  (instructed by Director of Public Prosecutions for the Australian Capital Territory)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, for the Attorney‑General for the State of Victoria intervening.  (instructed by the Victorian Government Solicitor)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the Court has the written submissions of both sides in this matter so far as the aspect on which further argument has been requested is concerned.  The course that I propose to take in my oral submissions is to go through those submissions and to elaborate upon some parts of them, if I may do so.

As is apparent from the submissions, two issues, broadly speaking, are involved.  One is the question of the power of the Full Court of the Federal Court itself to inquire into and consider the applicant’s fitness for trial.  The other is whether, in the circumstances of the particular case, assuming the existence of that power, it should have been exercised.

May I deal with the submissions in that order and turn first to the question of the Full Court’s power itself to inquire into and consider the question of fitness for trial.

May I take your Honours to our written submissions for the present application and, in particular, your Honours, to what appears on page 2 under the heading B “Full Court’s Powers” and I wanted to refer your Honours to paragraphs 4 to 7 of those submissions.  Your Honours, could I pause to note that I had not intended to dwell very long upon them because there is not, as we would apprehend our learned friends’ submissions, a great deal of difference between us, if any, on the question of the ambit of a Full Court’s powers.

Your Honours, turning then to those submissions, we would submit that the Federal Court’s jurisdiction derived from section 24(1)(b) of the Federal Court of Australia Act.  Its powers are set out in that part of the Act, or division of the Act, and also in Order 52 of the Federal Court Rules and in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 the Court held that there was conferred on the Full Court of the Federal Court in an appeal in a criminal matter from a Territory a wide discretion to ensure that justice was done in criminal matters and, to adopt the words of Chief Justice Gibbs and Justice Mason at page 529:

to “entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous”.

Your Honours, if one goes also to page 532, as we set out in paragraph 6 of our submissions, the Full Court was entitled to set aside the verdict if satisfied that it was “unsafe” or otherwise involved a miscarriage of justice.

KIRBY J:   Could you just help me with this, Mr Jackson. Those passages would have to be read as subject to the Constitution and the statute. In other words, it says “entertain any matter that is relevant to preventing a miscarriage of justice”. That would be any matter which is within the ambit of an appeal within the statute and within the Constitution. Now, I would just like a little help from you as to how you see what the submissions you are putting as applicant for special leave now in the context of the questions of the Constitution and the statute. You go in, in your written submissions, to deal with the statute, but I would just like to understand how you advance the case for special leave within that double context.

MR JACKSON:   Well, your Honour, if I could just say first of all, the situation which obtains is that the law which was the underlying substantive law was a law of the Australian Capital Territory.  The jurisdiction to conduct the trial, as it were - if I could put it that way a little inaccurately - is conferred by laws of the Territory upon the Supreme Court of the Australian Capital Territory.  There is then conferred ‑ ‑ ‑

KIRBY J:   But remind me:  is the Act which was originally passed by the Federal Parliament but which was deemed and renamed as an Act of the Territory - is that correct - am I remembering correctly or not?

MR JACKSON:   Your Honour is, I think, thinking of the Self‑Government Act in saying that.

KIRBY J:   Yes, but I thought the Supreme Court Act itself had been originally enacted by the Federal Parliament, but then renamed as an Act of the Territory.

MR JACKSON:   Yes, your Honour, yes.  So the situation, your Honour, and the result in the present case - I mean the result of the earlier case, of course - is that one is dealing with the situation where there is an enactment of the Territory which, on the one hand, establishes the court and confers jurisdiction.  On the other hand, the offence is created by another law of the Territory, the Crimes Act, and the provisions dealing with the ability to stand trial are contained in two provisions, one being the provisions of the Crimes Act which starts with section 428E and then the provision of the Mental Health Act, your Honour, which is the Mental Health (Treatment and Care) Act 1994 section 68. Those provisions are referred to in paragraph 8 of our most recent submissions and referred to in our earlier submissions elsewhere. I will give your Honours a reference in a moment. Your Honour, I am sorry having taken a little while just to start the basic thing your Honour was asking me.

Could I go on then to say that what one is dealing with, your Honours, is an appeal, then, to the Full Court of the Federal Court and that appeal is conferred by the provisions of the Federal Court of Australia Act. That is section 24(1)(b). Now, your Honours, if one goes to that ‑ ‑ ‑

KIRBY J:   What I was really seeking your help on is this – and I apologise for this because I should have checked it myself.  We reached a point in the previous hearing at which there were the constitutional issues concerning the validity of the part‑time appointment of Justice Carruthers, and that has been resolved by the Court.

MR JACKSON:   Yes, your Honour.

KIRBY J: But at a certain point in the earlier proceeding when I think we were hearing by order of Justice Gaudron and myself the argument of the special leave application before the Court consecutively where you sought to tender certain evidence and that was objected to by Mr Game for the respondent and no ruling was finally made, I think, at that stage on the tender and you had before you the request by the Registrar to argue a certain point. What I would like to have very clear in my mind – and no doubt this is revealed by a reference to the transcript of the previous proceedings – is how the point that is being argued pursuant to the letter from the Registrar is, in your submission, contextualised by reference to the constitutional question about the limits on an appeal by the Constitution and the statutory limitation which the Federal Court of Australia Act imposes.  Could you just revive within us the symphony or song of the previous occasion so that we know where we are.  At least for myself, I would be grateful for that.

MR JACKSON:   Your Honour, I will do my best, but your Honours will bear in mind I may be a little tone deaf on the issue. Your Honour, could I just say this that one is, of course, dealing with something where the Federal Court’s jurisdiction is a jurisdiction that is conferred by section 24(1)(b) of the Federal Court of Australia Act and it gives the Federal Court jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory; it is as simple as that, your Honour.

KIRBY J:   Now this is the Federal Court which is undoubtedly a Federal Court within Chapter III, which is therefore bound in terms of using the word “appeal”, which would presumably have the same meaning as in the Constitution and which, on one view, a majority view in Mickelberg, is limited to the record.

MR JACKSON:   Well, your Honour, that ‑ ‑ ‑

KIRBY J:   Where stands the argument that was advanced previously by your side on that point?

MR JACKSON:   Your Honour, may I go back just a little to these?  Your Honour will appreciate ‑ ‑ ‑

McHUGH J: Could I interrupt you there, and perhaps this helps you with the problem Justice Kirby said. It does not seem to me that questions of appeal under the Constitution - constitutional terms have got anything to do with the Federal Court’s power. Section 24 of the Federal Court Act is a product of section 77 of the Constitution, which does not use the word ‑ ‑ ‑

GAUDRON J:   And, in any event, am I right in thinking that the Federal Court of Australia Act does give a power to receive further evidence ‑ ‑ ‑

McHUGH J:   Section 27.

MR JACKSON:   Section 27,your Honour. If I could adopt what your Honour Justice McHugh said, it may well be that if one looked at it from a constitutional point of view that the jurisdiction being conferred by section 24(1)(b) should be treated as original rather than appellate.

McHUGH J: Exactly, and I see no reason, myself, why this Court could not be given power to hear fresh evidence in a matter pursuant to section 77 of the Constitution, or whatever the relevant provision is, but it would be an exercise of original jurisdiction by this Court in the same way that at common law a court might set aside a verdict under a writ of error and so on.

MR JACKSON:   Yes.

McHUGH J:   It would not matter what label Parliament put on it.  They might call it an appeal but it would not be an appeal in the strict sense, it would be an exercise of original jurisdiction.

MR JACKSON:   I think, your Honour, when the matter was last before the Court that we did refer in reply to some of the original Rules of the Court which seemed to contemplate that as part of the appeal to the Court there could be fresh evidence adduced.  Now, they are, no doubt, of historical interest in one sense.  The other thing I was going to say in response to what his Honour Justice McHugh just said that - your Honour, I have not checked this recently but I had the impression that it may be possible in the Nauru appeals for there to be fresh evidence before this Court, this Court having a slightly different function.

If I could go back to what your Honour Justice Kirby was putting to me, my submission would be that one is not really, for the present purposes, concerned with any constitutional limitation. True it is, of course, that the word “appeal” is used in section 24(1)(b) but it is used in a context where one also has section 27 which confers the ability to receive fresh evidence. The third thing we would seek to say about it, your Honours, is that if one goes to the provisions dealing with the powers of the Federal Court when hearing appeals, your Honours will see those in section 28(1). If I could just pause before going to it to go to section 28(3), it refers to the fact that:

The powers specified in sub‑section (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.

No doubt that is a provision to be construed distributively, of course, but if one looks at ‑ ‑ ‑

KIRBY J:   But this is exercised in the context of an appeal to the Federal Court of Australia, a Federal Court exercising an appellate jurisdiction.

MR JACKSON:   Yes, your Honour, and what is meant by that concept may be seen from section 28(1) and, if one goes to section 28(1), your Honours will see that it gives very wide powers, including, for example, section 28(1)(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 -

and so on, your Honour.

KIRBY J:   But all of that is in the exercise of its appellate jurisdiction.

MR JACKSON:   Yes, your Honour.

McHUGH J:   Yes, but your point is, is it not, section 24 itself depends on section 77 of the Constitution?

MR JACKSON:   Yes.

McHUGH J:   It does not mention the word “appeal”.

MR JACKSON:   No, your Honour. Your Honour is right to say the word “appeal” one does see in section 24(1)(b) because it is said that is what it is.

McHUGH J:   That is Parliament label.

MR JACKSON:   Yes, and, your Honour, could I say two things.  First of all, this is not an area entirely bereft of authority in the Court and one sees in section 28(1), first of all, the range of things that might be done by the court, but, secondly, those provisions were the provisions considered in Chamberlain [No 2] in which the wide view of the powers of the Full Court of the Federal Court on such an appeal was confirmed and the narrower views not adopted.

Your Honour, in that regard, we referred your Honours in paragraphs 5 and 6 of our written submissions on the present application to the passages in Chamberlain and, your Honours, it was held in that case ‑ and if I could perhaps take your Honours to it, 153 CLR 521 and at page 529 Chief Justice Gibbs and Justice Mason, after referring at about point 3 on the page to:

The grant of a general appeal by s 24(1)(b) –

your Honours will appreciate this was an appeal from the Supreme Court of the Northern Territory -

was intended to enable the Full Court of the Federal Court to –

and then there is the passage from Ah Yick v Lehmert:

“entertain any matter, however arising, which shows that that the decision of the Court appealed from is erroneous”.

And then your Honours will see – I will not read it out – the remainder of that paragraph demonstrates that notwithstanding perhaps one might say the economy of words used in sections 24, 27 and 28 that, in fact, there was to be a very wide power given to the Full Court of the Federal Court. Your Honours, we have referred also, in paragraph 6 of our written submissions, to page 532 where in the first new paragraph on the page their Honours say that the Full Court:

has the power and duty to set aside the verdict of a jury in a case where a miscarriage of justice has occurred, including a case where it would be unsafe or dangerous to allow the verdict to stand.

And your Honours will appreciate that those words “miscarriage of justice”, “unsafe”, et cetera, do not appear, of course, in the Federal Court of Australia Act.  They are views adopted by the Court as to the ambit of it.  Now, your Honours, I have taken your Honours to the reasons of two members of the Court.  Justice Murphy agreed and, your Honours, to the same effect Justice Deane.

KIRBY J:   But would one not read that as “the court has the power and duty in the exercise of appellate jurisdiction”, which means addressing issues that are raised by the parties for the court’s decision?

MR JACKSON:   May I come to that.  That is the next point to which I wish to go.  A view that is confined in that way is, with respect, narrower than the view that has been taken in decisions of the court.

GLEESON CJ:   Just before you pass from the statutory provisions, can I ask you a question about a matter that I am sure is not in dispute, but what is the statutory provision that states the consequence in the Territory of a conclusion that a person charged with an offence is not fit to be tried?

MR JACKSON:   Your Honour, it is to be found in the Crimes Act and it is in the group of provisions that commence with – I am sorry, I cannot give your Honour an answer in one word; I have to take your Honours to the provision.  But your Honours will see that one starts with section 428E of the Crimes Act and it provides that the court is to:

order the person to submit to the jurisdiction of the Tribunal –

Then several different categories of case can arise and it depends whether the offence is categorised as serious or non‑serious.  If it is categorised as serious – and your Honours will then see under section 428H(1):

This section applies where –

(a) an accused is charged with a serious offence…..

(c) the Tribunal notifies the Court that it has determined that the accused is unfit to plead to the charge but is likely to become fit within 12 months –

then the jury is discharged and the accused is detained in custody and there is a possibility of a trial later.  If the situation which obtains is that the accused is held to be unfit to plead, there is then a hearing – I will give your Honours the reference in just a moment – at which the question to be determined by the jury is whether the facts, absent the mental element that constitute the offence, have been made out.  The course that then follows in relation to the liberty of the accused will depend on the verdict of the jury in that regard.

GLEESON CJ:   What would have happened to Mr Eastman if it had been concluded that he was not fit to plead and not likely to become fit to plead within 12 months?

MR JACKSON:   Your Honour, the result would have been that he would be dealt with by there being a special hearing, I think under section 428J(1), by a jury and then the result would be – if your Honour would excuse me just one moment.

GLEESON CJ:   You can come back to it later if it is convenient.  I do not think it is an issue in the case.  I just wanted the information.

MR JACKSON:   It is section 428K, your Honour, and that sets out the verdicts available at the special hearing.  Your Honour will see subsection (1), the jury’s view.  It advises the court.  I am sorry, I just do not have what follows.  It may be, your Honour ‑ ‑ ‑

GLEESON CJ:   Come back to it later.

GAUDRON J:   It is 428L, I think.

MR JACKSON:   One picks up also, I think, the Mental Health Act from then on.

McHUGH J:   I am sorry, my recollection may be wrong, but I thought that provision, J, or whatever it was, only applied if they made an order that he be fit within 12 months, or am I wrong about that?

HAYNE J:   Special hearings pick up, do they not, under 428I(1)?  At 428J there is a special hearing.  Section 428M, there is what is described as “non‑acquittal”.

MR JACKSON:   Yes, your Honour.

HAYNE J:   The consequences are there set out.

MR JACKSON:   Yes, your Honour, I think once one gets ‑ ‑ ‑

GLEESON CJ:   It looks as though the court is obliged to:

order that the accused be detained in custody until the Tribunal orders otherwise.

MR JACKSON:   Yes, your Honour, and then there is provision under the Mental Health (Treatment and Care) Act dealing with the Tribunal, its powers and dealing with the position of persons who are one way or another mentally dysfunctional.  If your Honours want more on that we would be happy to give your Honours a note setting out the course of the provisions which are not entirely easy to follow immediately.

The point to which I was going to move was the question raised by your Honour Justice Kirby about the ability of the court to deal with, to put it shortly, I suppose, a point that is not raised by a party in the proceedings.

KIRBY J:   Your threshold step, as I understand it, is that it may be of the very essence of the mental incapacity that the point will not be raised or denied.  But assuming that that is proved as a fact do you contend that that can be proved as a fact on the material on the record before the Court?  I take it by your written submissions you do.

MR JACKSON:   Yes.

KIRBY J:   Do you press the tender of the matters marked for identification in the court below which were tendered and objected to on the last occasion in case this Court is in doubt that it was established by the record, in order that this Court, looking retrospectively at what was before the Federal Court or available to the Federal Court ought to have examined for itself the matters in the tender which was marked for identification, or can we put that latter point entirely out of our mind as the threshold fact?

MR JACKSON:   No.  You r Honour, I am going to come to that. 

KIRBY J:   Yes, well, you take it in your time.

MR JACKSON:   May I indicate though that we would seek to say that the material before the Full Court of the Federal Court could be categorised as falling into two categories.  One being what appeared on the record as having occurred in the proceedings at trial.  That did not involve any additional material; did not involve looking, to put it more directly, at Dr Milton’s reports.

The second thing was that there was before – I use the term neutrally – the Full Court of the Federal Court a number of reports from Dr Milton.  When I say “before”, your Honours, I say that advisedly because they are referred to in the Full Court’s reasons – for another purpose, but they are referred to.  We rely on both species of material so far as the question that is the subject of the present hearing today is concerned, to show that there was material before the Federal Court which, on either basis, the narrower or the wider, should have led to court to the course we suggest.

GLEESON CJ:   The course that you suggested in your submission was, as I noted it, the exercise of a power to inquire into the question of fitness to plead.

MR JACKSON:   Yes.

GLEESON CJ:   What exactly do you mean by inquire, in that context?

MR JACKSON:   Well, your Honour, the court was in a position where it had - your Honour, I might say this is an unusual case, I accept that, and it is unusual, your Honour, because it is one of the areas where – and your Honour, I am a little ahead of myself in saying this – is one of the areas where the court is, in a sense, exercising power of its own motion.  Now, what the court had before it was material which, in our submission, indicated, at the lowest, we would submit, that there was prima facie a case where the course that should have been taken at the trial was to exercise the power under section 428E(1).  What the Full Court should have done was to say to the parties that that was the position on the material that appeared before the Full Court and that if no further material were placed before the court, then the court would be minded to form that view, and then if the court was of that view, formed that view, set aside the conviction and order that there be a new trial.

GAUDRON J:   Is that strictly correct, Mr Jackson?  Was not the question, assuming you are correct, whether the material which the Full Court had disclosed that a question did arise at the trial as to fitness to plead by reference to the same material, because I think the trial judge also had this material in one way or another?

MR JACKSON:   I am sorry, your Honour, I just did not catch the last thing your Honour said about the ‑ ‑ ‑

GAUDRON J:   Was the question not whether, on the material before the Full Court, the Full Court should have concluded that a question arose at the trial, that material before the Full Court being not different, really, from that before the trial judge?

MR JACKSON:   Your Honour, that is so, and I would not dissent from the first part of what your Honour put to me.  It represents one of the ways of describing the case.  Your Honour, the slight point of departure with what your Honour put to me is just this, that your Honour referred only to the material that was before the trial.  Now, if one is excluding the ‑ ‑ ‑

GAUDRON J:   Not necessarily before the jury, the material that was before the trial judge.

MR JACKSON:   Yes, your Honour, that leaves, if I may say so, with respect, an element of ambiguity about whether that material would include the material which consisted of the reports of Dr Milton, because the documents were ones that the judge appears not to have read.  They were marked for identification, they were not exhibits, the judge appears not to have read them.  They were ‑ ‑ ‑

GLEESON CJ:   One of the things that the Full Court had before it was a senior and junior counsel representing the appellant.  Is it suggested that the Full Court should have inquired into their retainer?

MR JACKSON:   Well, your Honour, one of the things the Full Court had appearing before it was for a time senior and junior counsel.  A solicitor appeared three times, the applicant himself appeared for some of the time, a kind of musical chairs, of people being removed from office, as it were, and replaced.  Now, your Honour will appreciate that the material demonstrates that the point was not taken because there were instructions not to take it – I will give your Honours a reference to that in just a moment.

May I just say this is an area where - and I will come back to this if I may – of course, the statute itself in section 428E(1) and also the general law, apart from statute, is that whether or not counsel takes the point – and that be counsel for either side – it is a matter where the court has a duty if it considers the point, the issue arises itself to take it.  So that one is dealing with a slightly different area, with respect, your Honour.  It is not an area governed entirely by the conduct of those who appear.

HAYNE J:   And the question that the consequences of instructions to counsel may invite attention to whether there is some clash between a duty that counsel, particularly prosecution counsel, may owe to the court as well, also, as whatever other duties counsel may owe to their respective clients  ‑ ‑ ‑

MR JACKSON:   Indeed, your Honour.

HAYNE J:    ‑ ‑ ‑ matters which I suspect cannot and ought not to be investigated on the present state of the record but which lie behind the issues that arise in this matter.

MR JACKSON:   I accept the broad proposition that your Honour is putting to me.  So far as the particular case is concerned, may I come to the detail of it in just a moment.  Your Honour, I am sorry, I do not know that I can take ‑ ‑ ‑

GUMMOW J:   You have just referred in response to the Chief Justice to 428E(1), Mr Jackson, is that right?

MR JACKSON:   Yes, your Honour.

GUMMOW J:   That seems to suggest the issue “is raised by a party”.

MR JACKSON:   No, your Honour.  Your Honour will see that 428E(1)(d) says:

is raised by a party to the proceedings or by the Court ‑ ‑ ‑

GUMMOW J:   Yes.

MR JACKSON:   And, it contemplates that it may not be raised by the parties but may be raised by the court.  What I was going to say about that, if I could just perhaps pause to say it now, is that that does reflect what is the position under the general law, and that was referred to by the Court in Kesavarajah v The Queen (1994) 181 CLR 231 at page 244 by Chief Justice Mason and Justices Toohey and Gaudron immediately under the heading of:

The operation of s.393.
It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court’s duty to determine the accused’s fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry.

And, to the same effect, your Honours on the next page, page 245, in the paragraph commencing in the middle of the page:

The question…..is a matter that can be raised by the prosecution as well as the accused.  It may also be raised by the judge.

Could I just pause to say I referred your Honours to that case in the earlier hearing and may I add now a caveat that I added then, I think, and that is that when in the first passage to which I referred a moment ago the expression “before a trial begins” is used it is apparent if one looks at the terms of the Mental Health Act here that it is speaking not just about the time when the trial begins but during the trial itself.  I will not labour the point of that but I dealt with that.

GUMMOW J:   The reason I referred to 428E, Mr Jackson, is that you say that that reproduces the general law, and I understand that, but, that is not the framework here.  There can be no general law as to what should happen on an appeal.  It is purely statutory.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   So somehow we have to get out of the Federal Court’s statute some obligation, if that is the word, by the court to act in the appellate system.

MR JACKSON:   Yes.

GUMMOW J:   For which there is no common law analogy at all.

MR JACKSON:   No, no, I appreciate that, your Honour, but the fact that one is dealing with something which is an appeal, bearing in mind that what is being looked at is another hearing, to put it neutrally, of something that has gone before.  If what happens is that there was an issue, which as part of that proceeding – and I will seek to develop this in a moment – was an essential part or a condition precedent to its continuing as a trial, and if that has not been complied with in the view of the appellate court, that itself, in our submission, falls within the concept of a miscarriage of justice, which is ‑ ‑ ‑

HAYNE J:   There may be a distinction to be drawn between an issue in the proceeding and the question about whether there should have been a proceeding at all; that is, whether there should have been a trial at all.

MR JACKSON:   Yes, your Honour, I accept that.  Your Honours, I am going to deal with that aspect in a moment, but may I just say something more about the Full Court’s powers in their general ambit, before coming to the specific case and the I will deal with the point your Honour raised in just a moment.  Your Honours, the point I was going to make - and this is the second point, as it were, in response to your Honour Justice Kirby – is dealt with in part in paragraph 7 of our written submissions, and your Honours will see that we pick up in paragraph 7 what your Honour Justice Gaudron said in Gipp v The Queen, that:

when an appeal is lodged, the entire matter is before the court to which the appeal is brought and, unless there is some statutory provision to the contrary, that court “can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous”.

Now, may I pause to say, your Honours, one of the cases to which your Honour referred for that proposition is Robinson v The Queen (1989) 180 CLR 531 and the particular passage to which I wish to refer is in the joint judgment in the penultimate paragraph at page 536, where their Honours said:

Despite the lack of any objection to the directions at the trial and the failure to make the directions the subject of a discrete ground of appeal in the Court of Criminal Appeal, the conviction must be quashed.  A conviction based on such directions is simply too unsatisfactory to be allowed to stand.

Now, your Honours, that is a case where - and your Honours will see the nature of the direction was one that had the effect that the evidence given by the accused was to be scrutinised because of supposed interest more than the evidence of other witnesses and that was held to offend against the presumption of innocence.  Now, your Honours, that case is one where, in our submission, a Full Court of this Court has held that although the point was not taken, in effect at trial or on appeal, the issue was one which went so far into the propriety of the conviction that the interests of justice would not allow it to stand.

GUMMOW J:   That is construing section 73 of the Constitution, is it not, in the end?

MR JACKSON:   In the end, yes.

GUMMOW J:   Which was not involved here.

MR JACKSON:   That is so, your Honour, yes, and that was an appeal from a State.

GAUDRON J:   But is there not a more general statement in Ah Yick v Lehmert, which deals with appeals generally?

MR JACKSON:   I am sorry – is there not a more?

GAUDRON J:   A more general statement in Ah Yick v Lehmert, that deals with appeals generally, and that that is the general rule in all appeals and then Suttor v Gundowda and cases like that cut in, where, based almost on an estoppel by the conduct of case, to say, well, you do not do it if the evidence might have been different and so forth.

MR JACKSON:   Yes.  The passage I think, your Honour, to which your Honour is referring is quoted in Chamberlain v The Queen [No 2] 153 CLR 529 at about point 3 on the page, and, your Honours, I think we have actually extracted the passage without identifying it back to Ah Yick v Lehmert in paragraph 5 of our written submissions.

HAYNE J:   And if you put the point in terms of, “Did a party take the point at trial or on appeal?”, are you not necessarily assuming the very question that arises, namely, the capacity of the party to take it?

MR JACKSON:   Indeed, your Honour, and I was just going to say then – it is the point to which I am just about to move, if I may, by saying this, that if one turns to the question of the exercise of power, the first thing is that then the exercise of the power must necessarily be affected by the nature of the issue said to arise and in this regard one is not talking about something that can be described as a matter of tactics or a matter of a question of election, but one is dealing with an issue which goes to the propriety of conducting the trial at all.

Your Honours, in that regard we would refer to the general principle that a person not fit to plead should not be tried at all and in that regard could I refer your Honours, without going to it in any detail, to the decisions to which we have referred in our earlier written submissions upon the hearing of this application in paragraphs 14 at the bottom of page 4 and also paragraphs 15 and 16.  The document, your Honours, is headed Applicant’s Written Submissions – Application for Special Leave to Appeal and dated on the last page 15 March 1999.

GLEESON CJ:   We are looking at a question of fitness to plead.  Is there such a thing as a question of fitness to appeal?

MR JACKSON:   Well, there can be, your Honour.

GLEESON CJ:   Then what does an appellate court do in considering, to use a neutral term, a question that occurs to it of fitness to plead when an appellant represented by senior counsel urges upon the Full Court a particular view of the facts?  Now, as has been pointed out, there may be a lack of capacity to instruct counsel to defend a trial and there may be a lack of capacity to instruct counsel to argue an appeal or to take points or to abandon points on an appeal.  How does the appellate court deal with that problem without inquiring into the retainer of counsel?

MR JACKSON:   Well, your Honour, there are really a number of situations.  In the ordinary course of events one would expect the situation to arise where if the counsel appearing for ‑ a counsel or solicitor would be more likely to have something to do with it than deal with the issue in detail – where before the hearing of the appeal if the counsel or solicitor was not dissatisfied that the person appealing had the capacity to give instructions then, in the ordinary course of events, that should be dealt with by the procedure in whatever is the relevant jurisdiction for the conduct of litigation by persons who are suffering from mental disability and no doubt, your Honour, at that anterior point there is a question which, I suppose, has to be decided by those appearing, perhaps wrongly, but it has to be decided by them.

If one is talking about a situation where one is looking on appeal at what the position was at an earlier point, which is essentially the issue that would arise in cases like this, there would appear to be no particular procedure apart from one matter that could be referred to in the Federal Court, and that is to ask for a report from the trial judge.  But, apart from that, there does not appear to be a procedure whereby the court could order someone to be psychiatrically examined.  But the situation is not really terribly different from that which arises in cases where the court makes it apparent that the point is to be taken.

GLEESON CJ:   But there is no suggestion, is there, that Mr Eastman’s condition is improving?

MR JACKSON:   Well, your Honour, it is ‑ ‑ ‑

GLEESON CJ:   If he was not fit, if he did not have the capacity to understand the nature of a charge of murder and to instruct counsel to defend him at the trial, where did he get the capacity to instruct counsel on an appeal?

MR JACKSON:   Your Honour will have seen in the material that - Dr White I think is the psychiatrist whose evidence is before the Court and he gave his evidence – his reports were to the effect that there had been courses of treatment that had been administered since the earlier time and they had had the effect that there was an improvement in his condition and – without taking your Honours to the actual passages, your Honours will see that he believed him to be in a situation where he was psychiatrically stabilised to an effect that he would be able, in terms of the relevant enactment, to be tried.  So that the evidence was that he had improved.

HAYNE J:   Leaving aside for a moment the question of appeal, Presser and other cases demonstrate, it seems to me, that it is not unknown for counsel to appear for an accused person to resist the court’s suggestion that some issue of fitness be tried, and yet the issue go forward over the opposition of counsel for the accused.  If that is right, what consequence follows from the fact of retainer of counsel?

MR JACKSON:   In terms of ultimate consequence, the answer is none, your Honour.  The point that I would seek to make in response to your Honour the Chief Justice does really derive in a sense from the nature of the issue at the trial, whether one puts it in terms of section 428E(1) or looks at the position anterior to that.  In both circumstances it is apparent from the terms of the general law and the legislation that the situation which may obtain is that, notwithstanding the views of the Crown or those appearing for the accused, the issue can arise.  That is why it is one that is in a sense sui generis, an issue where the court has power to take it itself.

GLEESON CJ:   Your submission, as I understand it, but correct me if I am wrong, is that when you used the expression “The Full Court had power to inquire into the question of fitness for trial”, you were intending to say in conformity with the way the question was framed in the Registrar’s letter, “The Full Court had power to examine whether on the material that was before the Full Court” the trial judge should have taken a certain course.

MR JACKSON:   Yes, your Honour.

GAUDRON J:   But you do not restrict to that surely, do you?  Do you not say, “Wasn’t it sufficient that on the material before it, a question arose and it could for itself then admit further evidence relating to that time and determine ‑ ‑ ‑

MR JACKSON:   Yes, I put it both ways, your Honour.

GAUDRON J:   Yes.

GLEESON CJ:   But what was the evidence that was tendered before it on that issue that it declined to admit?

MR JACKSON:   The material that was before it - and it is a question whether, although in form it did not rely on it, whether in fact it did - but the material that was before it is the material that was at the trial and also Dr Milton’s reports.

CALLINAN J:   Mr Jackson, could I ask you about Dr Milton’s reports, and I think his main summary is in volume III at page 636.  I really wanted to know what the status of that report is.  Was it tendered?  Was it received?  Was it objected to?  When was it tendered and ‑ ‑ ‑

MR JACKSON:   Your Honour, I do intend to come to that.  I am happy to deal with it now.  The position was, if I could put it shortly, that the material that consisted of Dr Milton’s reports was, at the trial – in terms of being physically at the trial, is the first stage.  The second thing was it was not admitted into evidence at the trial.  The documents were marked for identification and there were some references to there being material without the detail of it going before the jury, or the reports being read by the judge.

CALLINAN J:   Did anybody seek to tender that material, either in a hearing in the absence of the jury, or when the jury was present?  It would probably be the former if anything.

MR JACKSON:   The answer, I think, your Honour, is no, in terms of seeking to tender it.  I will check that but I think the answer is no.

CALLINAN J:   I do not want to take you off your order of argument, but you might recall that when the fresh evidence point was debated I expressed some reservations about the admissibility of some of your material.

MR JACKSON:   Yes, your Honour.

CALLINAN J:   Leaving that aside for present purposes, I have read a considerable amount of the material which is apparently intended to show that there were bizarre aspects of your client’s behaviour at the trial.  Now, if I can just say two things in relation to those:  that material does not immediately strike me as manifesting very clearly bizarre behaviour.  Indeed, much of what your client did appeared to me to be very, very articulate, relevant and quite dissuasive, some of it.  But regardless of what my view of it is, you have a trial judge who heard and observed your client over a very long period, and he, apparently, was not in any way impressed or so moved as to regard Mr Eastman’s behaviour as such as would not enable him to plead.

So, it seems to me that initially I would not think that is enough, that material.  It seems to me that you would have to go to and rely upon psychiatric material, assuming it to be relevant and admissible, and at the moment I do not see how you can get it before us unless you can induce this Court to receive fresh evidence.  That is a concern that I have, Mr Jackson, that I am putting to you.

MR JACKSON:   Yes.  I am sorry to keep saying, “May I come back to it” ‑ ‑ ‑

CALLINAN J:   Certainly.

MR JACKSON:   ‑ ‑ ‑ but I do intend to go back to that evidence, and I just want to say a couple of more things before I get to the heart of the case in terms of the actual evidence itself.  Perhaps if I could come back to what your Honour was ‑ ‑ ‑

McHUGH J:   I am sorry to delay you, but so I can understand where this argument is going, could you help me on these points:  supposing this Court held that there was an error on the part of the Full Court in some way and sent it back to the Full Court, what is it that the Full Court would have to do before it could set aside the conviction?

MR JACKSON:   Well, your Honour, it would have to, at the lowest - if I can put it this way, perhaps what the Full Court would have to do would be to consider whether the material gave rise to the issue at  ‑ ‑ ‑

McHUGH J:   I am afraid I will need some convincing on that, Mr Jackson.  There has been no error within the trial.  You would have to establish that there is a miscarriage of justice, a term that is not used in the Federal Court Act, but let it be assumed that term is applicable.  Would you not have to show - convince the Full Court that it was more probable than not that if the matter had been sent to the Tribunal, the Tribunal would have found your client not fit to plead.  If they cannot do that, there has been no miscarriage of justice, has there?

MR JACKSON:   Well, there has, your Honour, in our submission, there has been because the course that the trial should have followed, we would submit, would be that there was an issue as to his fitness to plead.  I use that in the broader defined sense.  Now, your Honour, in so far as that issue is concerned, the situation which emerged before the Full Court was that the material that consisted of Dr Milton’s reports was material that was in the hands of the Crown at all material times at the trial.  So that one had a situation where in terms of section 428E(1), in our submission, the issue was one which – and, your Honour, without picking up the exact words – plainly arose, and what the Full Court did not do was to deal with that issue at all.

GLEESON CJ:   What exactly was the status of Dr Milton’s reports in the Full Court?

MR JACKSON:   Your Honour, the first thing is that ‑ ‑ ‑

GLEESON CJ:   Were they evidence, and if they were not evidence, what were they?

MR JACKSON:   Well, your Honour, it is clear that they were not admitted as evidence as such.  However, what appears to have happened in relation to them is that they were, in fact, referred to and used by the Full Court, and I will take your Honours to the reference ‑ ‑ ‑

GAUDRON J:   It is to be assumed, then, at the very least, that they accepted it as new evidence under section 27 or 28, is it?  You cannot refer to it in a judgment if it is not there.

GLEESON CJ:   Referred to by whom?  Referred to, perhaps, by counsel?

MR JACKSON:   No, it is referred to in the Full Court’s reasons.

GLEESON CJ:   Ultimately, but no doubt in their reasons they were dealing with arguments that were put to them by somebody.

MR JACKSON:   Your Honour, they may well be, but could I just say that they refer to them and then reject the argument that there was based - that was sought to be put on them.  However, the point we would seek to make is that in having that material before them for whatever purpose, it was manifest, we would submit, that if one looked at that material, it showed that the issue which we seek to agitate arose.

CALLINAN J:   But, Mr Jackson, the problem about that is, surely, that unless the material was actually tendered to the Full Court, the respondent did not have an opportunity of objecting to it and requiring that the deponents or the people whose evidence was being relied upon be available for cross-examination.

MR JACKSON:   Well, your Honour, I would not ‑ ‑ ‑

HAYNE J:   And that assumes, does it not, Mr Jackson, that there is some issue joined between competent parties, that the very question is one of competence, and analysing the question in terms of tender and reception of evidence seems to me, at least, to require the closest attention to whether in truth there is issue joined and issue can be joined between competent parties?

MR JACKSON:   I would adopt what your Honour is putting to me.  Can I say one further thing in response to your Honour Justice Callinan, and it is this, your Honour:  we will accept that if the matter goes back to the Full Court and the issue is there then to be dealt with, then no doubt there would have to be – there would be an entitlement on the part of the Crown to do what it chose, on the part of whoever was perhaps appearing for the applicant then to take whatever course it chose, but if one just looks at the position of the Crown, the Crown might want to seek to put in further material to show that that conclusion should not be drawn.  All I am seeking to say, your Honour, if I can just concluded, is this, that the material before the Full Court demonstrated, in our submission, that this issue was there.

CALLINAN J:   But, Mr Jackson, how did the Full Federal Court come to deal with material that was not in evidence?

MR JACKSON:   Can I take your Honour first to the Full Court and your Honour will see that it is reported 76 FCR 9 and, first of all, your Honours, can I just say at the bottom of page 37 you will set out the various grounds of appeal that were before the Full Court and you will see, for example, at the top of page 38 grounds 1(c) and 1(d) and then, in particular, grounds 11 and 13. Now, I mention those, your Honours, because what was being said in a sense in relation particularly 11 and 13 was that the conduct of the applicant, for example, in his house had been taped all the time and based on what was on the tape recordings Dr Milton gave his reports and the applicant at some point came to know that what he did and said was being recorded. Now, your Honours ‑ ‑ ‑

GLEESON CJ:   Just incidentally, we are not dealing, are we – correct me if I am wrong – with an argument that the Full Court reached an erroneous conclusion in relation to ground 13 of the grounds of appeal?

MR JACKSON:   No.

GLEESON CJ:   So we are dealing with the argument upon the assumption that the Full Court was right to conclude that it had not been shown that there was an inability to adequately prepare the defence and to instruct counsel by reason of certain actions of the prosecution.

MR JACKSON:   Well, your Honour, one assumes that ground was dismissed and, yes, the Full Court was not satisfied that ground had been made out taken by itself.

GLEESON CJ:   If your argument is right, the Full Court was straining at a gnat and swallowing a camel.

MR JACKSON:   Yes, your Honour.  The Full Court dealt at the bottom of page 46G with the Milton reports.  Now, your Honours will see, if I could go a little further up that page between C and D, there is a reference to – cites one of the police officers, Sergeant Jackson – ultimately revealed that Dr Rod Milton, a consulting clinical psychologist - and your Honours will then see how Dr Milton came into it.

CALLINAN J:   But I do not, Mr Jackson.  I still do not see how this material got before the Full Federal Court .

MR JACKSON:   Could I say, your Honour, first of all, your Honour will see that from the bottom of page 46 through to page 48C they refer to the detail of it.

CALLINAN J:   They refer to it at length.

MR JACKSON:   And, they conclude at page 49, about C in the short paragraph commencing:

There is simply no evidence to support the allegation –

Now, the point that we make about them, and I will come to the passages in the transcript of what went on shortly, is the point that we make about them is that the material contained in those reports demonstrated that there was a serious question about the ability of the applicant to instruct at the trial.

McHUGH J:   But let it be assumed that you make good that argument, your proposition seems to be that that constituted an error and therefore the conviction should be set aside.

MR JACKSON:   Yes, your Honour.

McHUGH J:   Where is the error?  What error has been made that would justify that?  It does not affect the verdict in any way and if the judge had, in accordance with your submission, sent it out to the Tribunal they might have said he was perfectly fit to be tried.  Surely, you have got the onus of showing that there is a miscarriage of justice here and it seems to me, Mr Jackson, you have got to go the whole hog, you have got to show that if the matter had been set out to the Tribunal that they would have held, on the probabilities, that he was unfit to plead.

MR JACKSON:   Well, with respect, if I could say two things about that, that imposes a test which is more rigid and more difficult than the test adopted in an analogous way in, for example, Chamberlain.  What I mean by that ‑ ‑ ‑

McHUGH J:   No, it does not.  Chamberlain is just simply an unsafe and unsatisfactory case but we have said in the past – or at least I have said in a couple of judgments that when you are not relying on some error concerning admissibility of evidence, misdirection, non-direction, then you have got to show - the onus is on the convicted person to show that in some way the trial has miscarried.

GAUDRON J:   The approach in Kesavarajah, as I understand it, was that it was a fundamental failure.  If the question arose, it was a fundamental failure and there was therefore no scope for the operation of the proviso, there was no trial at all in accordance with law so that the issue on the approach taken in Kesavarajah was somewhat different from that which I think Justice McHugh puts to you.

MR JACKSON:   Yes, your Honour.  In our submission that is correct and indeed the cases to which we referred in the earlier hearing and have referred to, I think, in paragraph 14 and so on are of a ‑ ‑ ‑

McHUGH J:   So that it comes to this, on this basis, that if there is an arguable case that a person may not be fit to plead and the judge does not deal with it then there has been no trial at all.  That is what you have got to put.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Mr Jackson, can I invite your attention to what appears on page 49D in 76 FCR.  The Full Court is saying there that the trial judge did not know what was in these reports.

MR JACKSON:   I accept that, your Honour, yes.

GAUDRON J:   The question must be at the end of the day whether a question arose at the trial without necessarily having been raised as such or whether in absolute terms there was a question as to fitness to plead.  Do the cases deal with that distinction?

HAYNE J:   Other than by saying that it is a point for the court, not for the parties and that it is the court’s obligation to inquire into fitness?

GAUDRON J:   And may I say it seems to me to raise a point that perhaps has not been the subject of consideration but which Justice Hayne referred to, which is:  do we look to the role of prosecuting counsel who, it is clear from the Federal Court Report, had these documents?  Is it sufficient that there was material that someone had that should have alerted them to the question?

MR JACKSON:   Your Honour, in our submission, it is, and it is a point which I seek to make in a moment, and perhaps do now.  It is clear from the terms of section 428E(1) that there is a power in counsel to bring the matter to the attention of the court.  So far as counsel for the Crown is concerned, if the Crown has material which says, for example, “This man is insane”, then, in our submission, the appropriate course is for the Crown to bring to the attention of the judge the possibility that section 428E(1) is applicable.

McHUGH J:   The fact that he is insane does not mean he is not fit to plead.

MR JACKSON:   It is possible; I accept that.  If one looks at the ‑ ‑ ‑

GLEESON CJ:   Otherwise people would not be found not guilty on the ground of insanity.

MR JACKSON:   I am sorry, your Honour, I am not seeking to disagree with what your Honour is putting to me.  What I am saying though is that, speaking generally, if one looks at the particular case though and sees the respects in respect of which he was said to be incapable mentally, they are matters which one would think would go dramatically to the conduct of a criminal proceeding.  The point I was seeking to make about it was that if there is psychiatric material that the Crown has to that effect, then, in our submission, the duty of the Crown is to bring that matter to the attention of the trial judge and if the case is one where it should have been brought to the attention of the trial judge – and your Honours will appreciate material that it was not – then it is a case where there may be a miscarriage of justice.

GLEESON CJ:   Mr Jackson, this may not be ultimately decisive, and I do not want to labour the point unnecessarily, but is it right to infer from what appears about page 49F, and in particular from the concluding sentence in relation to grounds 1(c) and (d) and 13, that what happened in the Full Court was that senior counsel for your client endeavoured to rely on these reports of Dr Milton in support of certain arguments and for a number of reasons the Full Court concluded that the reports “cannot now be used as some basis for this Court’s intervention.”?

MR JACKSON:   On those grounds, on the grounds that were sought to be argued, yes.

GLEESON CJ:   And the question of receiving the reports as evidence in the Full Court was, in effect, foreclosed by that conclusion.  In other words, the Full Court seems to have headed off an attempt to rely upon the reports at all, without coming to the question of their admissibility, for example, as fresh evidence.

MR JACKSON:   Yes.  Your Honour, I think that is what seems to have happened.  However, the point we would seek to make about it is that it was apparent - and I will take your Honour to the transcript in just a moment - from those reports which, for whatever purpose they were before the Full Court, what appeared was that (a) the Crown was aware of those at all material times, but secondly, the material before the Full Court, if one looked at those reports, demonstrated, we would submit, that there was a very serious issue under section 428E that existed at all material times.

HAYNE J:   The question, as I understand your submission, is, “Was there an issue that arose before the Full Court?”  The question is not, “How would that issue be resolved on testing of evidence and hearing of witnesses?”, but, “Was there material sufficient to excite the question?”, and that is as far as you need go.

MR JACKSON:   Well, that is our primary submission, your Honour.  If I have to go further I would seek to do so.

HAYNE J:   Yes.

GAUDRON J:  But you have to say to excite the question, but do you not have to identify the question, the question whether, at the time of trial he was unfit to plead, the question whether, at the trial there was some material which should have prompted the judge to ask that question or - there was some material before the judge which should have prompted him to ask the question - there was some material available to the parties, their representatives or the judge, which should have prompted the question.

MR JACKSON:   Your Honour, we, in a sense, put it in each of those ways.

HAYNE J:   And the last formulation is one that depends upon a basal proposition that the common law does not try those who are unfit to plead.  In fact, regardless of whether they have raised it, regardless of whether there was material before the trial judge that should have excited the question, if the proposition is more limited then other consequences flow.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   But your proposition is not that the common law does not try those who might be unfit to plead.  Are you seeking to persuade us that your client was unfit to plead?

MR JACKSON:   Yes, your Honour, yes, in the end I am.  However ‑ ‑ ‑

GLEESON CJ:   Well that gets back to Justice McHugh’s question.

GAUDRON J:   But, for the purposes of the argument that is listed today, you do not have to do that, do you?  You have to say, I just need the chance to do that in the Federal Court.

MR JACKSON:   Your Honour, can I say, I answer your Honour the Chief Justice by saying yes, but, your Honour will appreciate that this is, in a sense, the argument I am advancing today is in response to a particular question, which is a somewhat narrower question, but your Honours will appreciate that we had further material, which was before this Court, not before the Federal Court, and if your Honour was asking me am I trying to persuade this Court, I am endeavouring to do so on the basis of that that gives rise to the Mickelberg issue.

KIRBY J:   Now that brings me back to the matter that I raised at the beginning:  what is the status of that application to adduce the further evidence before this Court, because, speaking for myself at the moment, I must say that I think it is very hard to say, on the issues before the trial judge or even on the issues that were properly before the Full Federal Court on the evidence which had been before the trial judge, that any of them have failed to, as it were, notice a point, and yet, if the matter goes to the fundamentals that Justice Hayne has been raising, a very different question is raised.

MR JACKSON:   Yes.

MR JACKSON:   Yes, your Honour.

KIRBY J:   Should this Court on new evidence that is available, can this Court within the Constitution and, if it can, should it then permit the whole matter to be reargued because, not that a mistake has happened below, but adducing this new material it is demonstrated ex post that a miscarriage of justice has occurred or that an error has occurred going to the fundamentals of the trial?

MR JACKSON:   Your Honour, if I could deal with the nature of our application to the Court, first of all.  We have not suggested, I think, in the course of argument that the Court on the material that it has and on no other material would arrive at a concluded view on the question of the capacity to plead because your Honours will appreciate that that material was placed before it ‑ ‑ ‑

CALLINAN J:   But, again, it has not tested it.

MR JACKSON:   It has not been tested, your Honour, and it is accepted that if that issue would have to be determined, say by this Court, then there is material that will be put in by the other side and so on.  So that perhaps one might think that the reality would be likely to be, unless this Court formed the view that it wanted to enter upon, or wanted or needed to enter upon that issue itself, that that would be a matter which would be remitted to the Federal Court to be disposed of.  Now, your Honours, that is on the assumption, of course, that at a hearing before the Federal Court further material would be admitted by it.  So, your Honour, that is the case, in effect, that we were advancing in the larger area.  Now, your Honours, the issue that is ‑ ‑ ‑

KIRBY J:   Can you just help me?  I did look just recently at the transcript.  Did you actually seek to read that evidence formally?  Do you seek to read that evidence formally before this Court and is it objected to by Mr Game, so that that tenders the issue on the special leave application as to whether this Court should and can receive that evidence, because that would seem to be a special leave point?

CALLINAN J:   Mr Game objected to it, as I recollect it.  You did seek to tender it.

MR JACKSON:   Yes.

CALLINAN J:   And Mr Game objected to it.  He said much of it was hearsay and he also said that he would want to cross‑examine on it, as I recollect.

MR JACKSON:   Yes, your Honour.  Your Honour, without going back to the detail of it, this is a matter that your Honour will recall where some directions were given, I think by your Honour Justice Gaudron, and the case so far as the Court was concerned was to be on the assumption that the contents of that material were before the Court.  Now ‑ ‑ ‑

KIRBY J:   I mean, we only get into all this business of being, as it were, critical retrospectively of the trial judge and of the Full Court because of the anxiety that is presented by Mickelberg about this Court receiving fresh evidence for itself in an appeal under the Constitution and with every respect it seems that there is an element of artificiality in criticising the trial judge, a very experienced trial judge, who said that your client appeared to be intelligent, he defied and denied incompetence, and the Full Court is now criticised on material which was not even in evidence, it was an MFI.

Really, it is very thin to be saying they ought to have picked up and run with these issues when (a) it was denied and (b) it was not in evidence and (c) even when looked at, is very thin, and we are only in that realm because of the fact that the natural, neat, logical way of dealing with the matter, which is for this Court looking at it retrospectively with fresh evidence, to say, “Well, they were not to be criticised but now that we have the evidence that goes to the fundamental of the trial makes it unsatisfactory, that it is said we cannot do that because of the narrow view about appeal under the Constitution.” Much better to cut the Gordian knot and deal with that issue, it seems to me with respect.

MR JACKSON:   Your Honour, I accept the part of what your Honour said that support our argument, our earlier argument in relation to Mickelberg, but could I just say one thing.  Your Honour has twice observed, I think, this morning, on the intelligence of the applicant.  Your Honours, not all people with psychiatric illness are people of low intelligence.  Often it is the other way, the people can sometimes be too intelligent and tip over.

GLEESON CJ:   But not all people with psychiatric illness are unfit to plead.

MR JACKSON:   No, your Honour.

GLEESON CJ:   When you use the expression from Kesavarajah, “the question arises as to the mental fitness” in the context of circumstances such as the present, what is meant by “the question arises”?  You have Dr Milton’s reports, let us assume, either, at least in the hands of the prosecutor, which say this man is violent and dangerous, capable of having killed Mr Winchester and with a motive to kill him, and he might do harm to somebody else.  That is the substance of Dr Milton’s report.

GAUDRON J:   And also he refers to paranoia, does he not?

MR JACKSON:   Yes, and he says a little more than that, actually, your Honour, because what your Honours will see is, if I could take you to volume III of the application book and in particular to page 675, the first paragraph.  He says:

A detailed description of this condition is given –

and he attaches the description at page 679.  You will see, I should have said, that at page 675, line 10, he said he:

has demonstrated virtually all those features from time to time.

If one goes to page 679 and sees the diagnostic criteria set out, they consist of these things:

A. Pervasive, unwarranted suspiciousness and mistrust of people as indicated by at least three of the following –

and, your Honours, I will not read (1) to (8), but they hardly seem the qualifications for doing the things that are referred to in section 68, I think, of the Mental Health Act, and your Honours will see, for example, paragraph A(5):

questioning the loyalty of others –

and your Honours will have seen from the passages I have referred to earlier the number of occasions upon which people who tried to assist him in litigation were removed from that and then replaced and so on.  Then ‑ ‑ ‑

GLEESON CJ:   I think, perhaps, we had better get clear what is involved in the concept of fitness to be tried.

MR JACKSON:   Yes.

GLEESON CJ:   Do any of these conditions affect the capacity to understand the nature of a charge of murder?

MR JACKSON:   Well, your Honour, I expect the answer would be no, no they do not. Your Honour, could I just say there are degrees of understanding. No doubt one knows what it is, but questions of seriousness and things of that kind are involved. Your Honour, section 68(3) is the provision to which I wish to refer, of the Mental Health (Treatment and Care) Act, that is the one that defines, in effect, what is contemplated by “unfit to plead”, and the particular one, of course, is 68(3)(f) ‑ ‑ ‑

GAUDRON J:   And (c), perhaps, too.

MR JACKSON:   And (c), your Honour, and ‑ ‑ ‑

GAUDRON J:   If there is this notion of trickery around the place which is referred to.

MR JACKSON:   Yes. Your Honours will appreciate we delivered to the Court after the last hearing a document headed “Supplementary Memorandum on Behalf of the Applicant” in which we sought to deal with the various paragraphs of section 68(3) and tie them back to the evidence. It was in response to a question by your Honour Justice Hayne and it is dated 16 April 1999. Your Honour, in response to your Honour the Chief Justice, I do not know that I can take it, really, in a sense beyond that, other than to set out what is in there again.

GAUDRON J:   That is from Dr White’s report which, for present purposes, we will put aside, if that is convenient.

MR JACKSON:   Yes, your Honour.

GAUDRON J:   Can you relate the same matters either to the conduct during the course of the trial, or to the diagnostic criteria which appear at page 679 of volume III?

MR JACKSON:   Well, your Honour, it is no doubt possible to do so.  I do not know that I can do so in just a moment.

GAUDRON J:   Yes.

MR JACKSON:   If your Honours wish me to I will be happy to provide your Honours with a document which is similar to that but ties it together to ‑ ‑ ‑

HAYNE J:   In doing so, I would be interested to know whether you can put the point any higher than the Full Court does at page 92B:

The refusal of the trial judge to make such an order does not provide a reasonable or rational basis for the appellant to dismiss his lawyers or to refuse to cross‑examine Crown witnesses –

Whether you seek to put it differently or higher than that would be a matter that I would be assisted by.

MR JACKSON:   I am sorry, could I just ask one thing in relation to that?

HAYNE J:   Yes.  That conclusion on its face seems to me to suggest lack of reason in the course of trial.

MR JACKSON:   Yes, and your Honours will also recall that we gave your Honours another document – I am sorry to have bombarded your Honours with documents – but there was a document which we handed up at the earlier hearing entitled “APPLICANT’S EXTRACTS FROM MATERIALS” in which we set out the various factors at the trial upon which we relied, including the fact that a very large number of witnesses were not cross‑examined at the time when the case was being conducted by the applicant.

Could I just say that in relation to what occurred at the trial – I do not intend to go over it now – but, could I just say that the Full Court referred in its reasons to various aspects of the respondent’s conduct.  The respondent’s conduct can be found in three places.  First of all, if I could just give your Honours the references in the Federal Court Report – 76 FCR, and there are three passages, 32G to 37D, 39D to 42D, and 42F to 43D.

The second thing is the document to which I referred a moment ago, entitled “APPLICANT’S EXTRACTS FROM MATERIALS”, with which we have provided the Court.  The third thing is, in our oral submissions on 25 March last year, pages 14 to 19 of the transcript.

CALLINAN J:   Mr Jackson, I am sorry to come back to this, but the Full Federal Court’s reasons suggest that cross‑examination by your client may itself have led to the reception, as secondary evidence, I suppose, of some of the material in the Milton reports.  Do we have the transcript of the cross‑examination of Detective Sergeant Jackson who gave that evidence?

MR JACKSON:   No, your Honour, it is not in the materials.

CALLINAN J:   I just wonder whether there might not have been something there that may have given rise to the suggestion of unfitness.  It would have been regarded as an imprudent cross‑examination, but it may have let in a lot of material, or some material, that would have suggested at least instability on the part of your client.

MR JACKSON:   Yes.  Your Honour, I think the relevant part of it, and I perhaps can check that it is the part that commences at the bottom of page 45 and goes on to page 46, down to about letter G on page 46.  I do not know that it goes ‑ ‑ ‑

CALLINAN J:   I was looking at just after letter C on page 46:

As the appellant delved deeper into the subject – - -

MR JACKSON:   Yes.

CALLINAN J:   That paragraph.

MR JACKSON:   Your Honour, I will endeavour to give your Honour the ‑ ‑ ‑

CALLINAN J:   Mr Game was shaking his head that it may not have been in the material that we have got.

MR JACKSON:   It is not in the materials this Court has.

CALLINAN J:   No.  There is no reason why it should not be, is there?  It is part of the record.

MR JACKSON:   No, your Honour, there is no reason why it should not.  We will endeavour to get it for your Honours.  I think a potential difficulty is that the material was computerised.

CALLINAN J:   At any rate, somebody will put it before us.

MR JACKSON:   Yes, your Honour.  As I said, I do not intend to go back over that material.  Could I go on to Dr Milton’s reports.  What we would seek to say is that they showed that he was suffering from a serious mental illness.  We have set out the references earlier in our earlier written submissions in paragraph 12.  I take it I do not think I need to go – I will not take your Honours back to the references.  We invite your Honours to read that.

GLEESON CJ:   Does Dr Milton anywhere in his reports address the question of fitness to be tried?

MR JACKSON:   No, your Honour.  What we would say then is that the respondent’s submissions on today’s hearing, if I could take your Honours to those for a moment ‑ ‑ ‑

CALLINAN J:   Mr Jackson, I do apologise for interrupting you, but just arising out of the Chief Justice’s question and your response, I did notice that Dr Milton at some length dealt with the way in which court officials and others should refer to and deal with your client during the trial, which rather suggests that perhaps by implication he certainly contemplated a trial in which your client would participate.  I saw a passage.  He talked about court officials not engaging in eye contact and things of that kind.  It was in one of the reports that you just referred to.

MR JACKSON:   Yes, your Honour, and as it turned out, one would think that what he said was right.

CALLINAN J:   But in effect he was saying, “There could be a trial, but be careful because there are these aspects of his behaviour that might excite some violence”, which is a different thing from saying necessarily that he is unfit to plead.

MR JACKSON:   Of course, your Honour, he did say he was psychotic, out of touch with reality, things of that kind.

CALLINAN J:   He did not directly answer any question whether he was fit or unfit to plead, but he certainly contemplated a trial in which your client would participate.

MR JACKSON:   Your Honour will bear in mind that these are reports given at a time when they were endeavouring to obtain information which would inculpate the applicant and inculpate him for the murder of Winchester.  So, I suppose in the ordinary course of events, they are written in a context where – and whatever happened, there would have been likely to be some form of court hearing if the applicant were charged, whatever his mental state, because ‑ ‑ ‑

CALLINAN J:   You say this could refer to a tribunal hearing as much as it could to a court hearing?

MR JACKSON:   What he is saying is, “Be careful.  This is a man who is”, to put it neutrally, “difficult, and anything can set him off”.

GLEESON CJ:   I inferred – I may have been reading too much into it, but Dr Milton was actually briefed, as it were, to advise the authorities as to how they should discharge their obligations to protect the community generally and public officials in particular.

MR JACKSON:   That was part of it, I think, your Honour, but part of it was also to advise them.  Your Honours will see various aspects of his reports that deal with this topic of, in effect, whether the applicant was a person who had the propensity to do the act in question.  He makes various observations about that and about other aspects including, for example, what is at page 677, the suggested risk to other people.

KIRBY J:   Mr Jackson, you come back today to argue a point which was put on notice to you by the Registrar of the Court but I am still a little uncertain myself – and I am sorry to go back to my concern about where we stand in relation to the position that had been reached on the previous occasion.  You sought to read certain material and Justice McHugh made a point earlier that even assuming you are in the realm of tendering fresh evidence before this Court, there would have to be some real foundation to warrant this Court, if it says it has the power to receive that evidence, to say, “There is a real question and we’ll send that back to be tried in the first instance by the Federal Court”.  Has Dr Milton, in that material you sought to tender that was objected to, specifically addressed the question of fitness to plead or has some medical evidence specifically addressed those criteria in the Mental Health Act that suggest specifically, directly, definitely, an expert opinion that your client was unfit to plead during his trial?

MR JACKSON:   Yes. Well, your Honour, one of the documents to which I referred a moment ago was one that had been requested by Justice Hayne at the last hearing and that is the document, the name of which I will give your Honour in just a moment, in which, based on the evidence of Dr White, which is in this Court only, there are set out our contentions under the various paragraphs of section 68(3).

KIRBY J:   And that is not evidence that was before the trial judge or the Full Court but is evidence you seek to tender in this Court in support of the application for special leave to appeal now?

MR JACKSON:   Yes, your Honour.

KIRBY J:   How can we determine – we have heard argument on the special leave application as if it were argument of the appeal, but if you got to a point – just assume one got to a point that said, “No, you cannot criticise the trial judge or the Full Court but there is a real question to be argued as to whether within the Constitution this sort of evidence that you are now referring to may be received and there is a real question if it be received that it raises an issue as to fitness to plead going to the fundamentals of the trial”, then what happens then? One simply directs that the application for special leave be restored for argument and a conclusion before the Court.

MR JACKSON:   Yes.  Your Honour, the application for special leave was one where, it will be appreciated, was directed to be heard before the Court on a particular basis.  I do not have the order in front of me at the moment but what I mean by that is that the question of the Crown’s wishing to contest, for example, the psychiatric material and perhaps to put in material of its own, the existence of that possibility was recognised.  So, too, no doubt, is the possibility that at any future hearing, wherever it might be, without further material there might be a question as to the formal admissibility of perhaps some parts of some of the material, but ‑ ‑ ‑

KIRBY J:   But you would have to at least lay a basis then, and one would think, picking up what Justice McHugh said earlier, with which I have much sympathy, some pretty strong basis on a long criminal trial resulting in conviction that there was a very strong argument that though undetected at trial and in the Full Court, on new material which this Court rules it may receive, that a miscarriage of justice or a serious injustice or error of law, error of law being the erroneous conduct of a trial at all, has to be considered and the factual matters pertinent to that consideration sent back for trial in the Federal Court.  Now, I just want to have very clear in my mind where we stand because you have come here today, in fairness to you, to argue a specific point raised by the Court, but that point is incidental to the way you were original presenting your appeal which, as it were, was interrupted by Mr Game’s objection to the tender of any evidence at all – any evidence relevant to that point.

MR JACKSON:   Well, your Honour, without going in detail back to what I said on the previous occasion, I had thought, with respect, that that issue had been resolved.  What I mean by that is that on the previous occasion once the argument on the constitutional issue had been disposed of, other than the issues arising on the special leave application, when the special leave application came to be argued an issue was raised by your Honour Justice Callinan and maybe by your Honour Justice McHugh, I think, concerning the status of the material and whether the material was admissible.  Now, some discussion about that issue, if it was accepted, and my learned friend at some point would wish to contest in one of the possible ways, the perhaps admissibility and also ultimate efficacy of that material.

Your Honours, my recollection is that the Court, I think, adjourned for a time to consider the course that it would take, when it was pointed out there had been some directions given by your Honour Justice Gaudron, I think, in relation to the conduct of the application and, in due course, the Court came back and gave a ruling that the matter was to proceed - your Honour, I do not have the transcript in front of me - on the basis of the material contained in those reports then before the Court.  Your Honours, that, in our submission, leaves the position that if the Court takes the view that the material cannot be admitted because the Court has no power to admit further material, that is the end of it.

KIRBY J:   Of course.

MR JACKSON:   If the Court takes a different view, then a question arises as to the course which should be followed by the Court and there would seem to be, your Honours, I suppose essentially, two courses open:  one is for the Court itself to consider the evidence further, such further evidence there might be; another would be for the matter to be admitted to the Full Court of the Federal Court.

GAUDRON J:   One would be remitting, at that stage presumably, a part of an appeal?

MR JACKSON:   Yes, your Honour.

GAUDRON J:   And is there power to do that?

MR JACKSON:   Well, I should say, your Honour, that does raise a further question on which there may be a difference of view.

GAUDRON J:   Yes, whereas on the question now open there would not be any question of remitter except in the sense of saying, if you were successful, well the Full Court did not complete the hearing of this appeal, its order must be set aside, it must be returned to the Full Court for it to proceed, on the basis of an unresolved appeal before it.

MR JACKSON:   Yes, your Honour.  Your Honour, I accept the possibility there are difficulties in the Court remitting the matter unless it allows the appeal.

GAUDRON J:   Yes, which it could not do on your first point, without itself determining not only the admissibility of the evidence, but receiving whatever other evidence the parties wish to adduce and determining what weight, et cetera, should be given to the evidence as then led.  That would not preclude you, of course, from leading further evidence.

MR JACKSON:   No.  Your Honour, so far as the point being argued today is concerned, it is one that really does not involve this Court itself forming a view on the material.

CALLINAN J:   The ruling is at page 11 of the transcript, Mr Jackson, line 435, and you are right about what you say about it.

MR JACKSON:   Thank you, your Honour.

KIRBY J:   The Court did not there, by that ruling, refuse to admit the evidence or refuse to hear cross-examination; it simply postponed that issue.  So that issue is still alive and you still press it?

MR JACKSON:   Yes, your Honour.

KIRBY J:   It is indeed your primary, and the way you originally came to the Court to argue the point, and the other issue has been raised, well, assume you do not succeed or assume the Court postpones that, was there nonetheless material before the trial judge or the Full Court that agitated or ought to have agitated in their minds, leave aside us, the question of the fitness to plead of Mr Eastman.

MR JACKSON:   Your Honour, we argued earlier the question whether there was, on the material appearing before the trial judge, material on which section 428E(1) was enlivened, so that is not a new point at all; that is one we argued earlier.  The additional part, as it were, is the issue whether the Full Court should have itself done something about it. 

KIRBY J:   I see.  Thank you very much.

MR JACKSON:   Now, your Honours, I said I was going to take your Honours for just a moment, if I might, to the submissions made by the respondent on the present hearing, and could I take your Honours to paragraphs 11 and 14 of those, and your Honours will see in paragraph 11 and paragraph 14 that our learned friend’s submissions rely on the conduct of counsel at the appeal.  Your Honours, we would seek to say, first of all – and I have submitted this earlier – the issue is not simply one for counsel.  We would also seek to say, your Honours, that if one looks at what took place on the hearing of the appeal, the Full Court does appear to have been conscious that this possible issue was there.

Could I take your Honours to volume VIII of the supplementary materials commencing at page 1721.  Your Honours, this was at a stage when Mr James was appearing in the appeal and, your Honours, I want to refer to the passage that commences on page 1721 and the passage goes through to about page 1729.  Your Honours will see, if one goes to page 1721 about line 9, that this is where really he gets to the Milton reports.  If I could refer to your Honour Justice Callinan, your Honour was asking me where does this come in.  This is where it really starts I think.  You see a reference to the various grounds and, in particular, the reference to ground 11 about line 14.  Now, your Honours will see the submission that is made between 14 and 21 and then Mr James says that he wants “to make it perfectly clear” that:

It is not the defence case and never was, that Dr Milton made an accurate diagnosis.

But then throughout the remainder of that paragraph he indicates what the submission was.  He goes on then at about line 27 on page 1723 ‑ ‑ ‑

GLEESON CJ:   Where do we find Mr James first introducing the Full Court to Dr Milton’s reports?  Here he is talking about them and making submissions about them, but where do we find him inviting the court to look at them?

MR JACKSON:   Yes.  Your Honour, may I give your Honour the reference later ‑ ‑ ‑

GLEESON CJ:   Yes.

MR JACKSON:   ‑ ‑ ‑ because, as I recall it, what took place was that the issue was mooted.  There seemed to be some adjournments for various purposes and then it really came to be dealt with on page 1721 with the issue lying up in the air ‑ lying rather in the air before that.  Your Honours, at page 1722 ‑ ‑ ‑

GAUDRON J:   Well, there is some just at 1709.  You might like to check that at a later stage.

MR JACKSON:   Yes, your Honour.  At page perhaps 1707, your Honours, you will see between about lines 10 and 15 there was an affidavit to which the Milton reports were an annexure and the affidavit was objected to.  The affidavit was not further dealt with in the sense that I do not suggest it was dealt with by the court and then ‑ ‑ ‑

CALLINAN J:   Mr Jackson, the point that seems to have been being pressed in the Federal Court was that the Milton reports were relevant to an issue whether his conduct involved a consciousness of guilt.  Now, I say that because of what Mr James seems to be putting at page 1704 of that volume beginning about line 4 because he refers specifically to “ground 11, ground 13 and ground 1.”

MR JACKSON:   Yes.

CALLINAN J:   It does not seem to be a submission that could in any way relate to fitness or otherwise to plead.

MR JACKSON:   Well, your Honour, you will see at line 4 on page 1704 there is a reference to:

ground 11, ground 13 and ground 1.

They are the ones that, in a sense, are the closest.  At the point your Honour is talking about, he then goes on to deal with, I think, some other aspects of the matter, and he seems to be dealing generally with the way in which the appeal is going to be conducted, and the groups of grounds.  If one goes back to page 1707, you will see at line 16 Mr Adams saying that he objected to the affidavit on the ground:

That it was material available at the trial –

So far as Milton’s reports:

they were marked for identification following the cross‑examination by the appellant of Sergeant Jackson –

and you will see that he discusses at line 24, throughout that paragraph, Mr Ninness’s evidence about Dr Milton’s reports, and sets out at the bottom of page 1707 his submission as to the reason why the defence had not tendered the material at the trial.

Then at page 1709 line 10 one sees Mr James dealing with Dr Milton’s reports and when they were first obtained, and a question about whether what he was saying did or did not go to the admissibility of them.

CALLINAN J:   It is a curious result.  The Crown seems to have wanted to tender them to rely upon them for some purpose in the Full Federal Court, and your client’s counsel is objecting, and now you seek to rely ‑ ‑ ‑

MR JACKSON:   Our side sought to put in the affidavit containing the reports in the Full Court.

GAUDRON J:   There is a passage at 1710 where Justice von Doussa says:

They may not have been tendered…..They were part of the documentation of the court.  We do not need an affidavit to get them.

That would seem to be right.

MR JACKSON:   Your Honour, what he is saying is these were documents that were, in effect, I suppose, in the custody of the court.

CALLINAN J:   How can that make them admissible?

MR JACKSON:   No, your Honour, I do not suggest they were evidence.  They were simply marked for identification.  I think what Justice von Doussa was saying, was simply that you do not need an affidavit, if they are otherwise admissible they are admissible.  That is it.

CALLINAN J:   How can that be?  They are sworn to, for a start, unless there is an affidavit.  Nobody has sworn to them.

MR JACKSON:   It depends on the purpose for which they were sought to be used.

GAUDRON J:   Then Mr Adams says at line 27:

Well, I would not take any technical point about that.  If my learned friend wishes to tender them on the appeal I would not object to their tender, except upon the basis…..as to their relevance.

He would not take any point about it.

CALLINAN J:   What page?

GAUDRON J:   Page 1710.

MR JACKSON:   Yes, lines 25 to 30, your Honours.

GLEESON CJ:   Was there an attempt by the Crown to tender these reports at the trial?

MR JACKSON:   I do not think so, your Honour, no.  The existence of the reports was not known to the applicant’s side until a considerable time into the trial, and Mr James puts it at 32 months – that is at 1709 about line 14 – and the position, I think, seems to have been that, at 1707 about line 17 to 23, that their existence was notified, in effect, following the cross‑examination of Sergeant Jackson.

CALLINAN J:   Mr Jackson, the passage, it seems to me, to which her honour Justice Gaudron drew attention involves a concession that is of critical importance to you.  That concession, it seems to me at present, resolves almost all of your difficulty so far as getting the Milton material before the Court.

MR JACKSON:   Can I say this, your Honour.  There does not appear to have – I would be happy to accept that were it not for the fact that if one looks at the way in which the Full Court treated it, the Full Court does not appear to have regarded itself as having received the material except to the extent to which it referred to it.

CALLINAN J:   But you never withdrew the tender in the Full Federal Court.  It seems to me that whilst the tender remained on foot, if relevance could be established, that was the end of the matter.  The Full Federal Court was bound to receive the material if it was relevant and to give it such effect as it called for.

KIRBY J:   One would think that if they then did in fact receive the evidence, that they would have given the respondent the opportunity to adduce evidence in reply for procedural fairness.  That never was done.

MR JACKSON:   Your Honour, that ‑ ‑ ‑

CALLINAN J:   But the answer to that is the respondent could have said, “If you do regard them as relevant, we will want to tender evidence”, because the tender was never withdrawn, as I understand it.

MR JACKSON:   No, your Honour.  I will check that during the luncheon adjournment but I think that is correct.  The argument that proceeded in the passage commencing at 1721 to 1729 then really goes on to deal with what might emerge from the material to the extent to which it might support some other ground.  I was going to say if one goes to page 1723 line 33, your Honours will see there Mr James saying:

And similarly, when one comes to looking at the various events at the trial in terms of the way in which the man acted and the consequences in the trial process.

Then Justice von Doussa asked him how Dr Milton’s reports came into play, and then at the top of the next page he was asked:

Is it said that they are fresh evidence that we should be looking at –

and Mr James said “in a sense”.  Then at about line 9 on page 1724:

The Dr Milton reports relate to – and they are in a form that plainly could not be used by the defence at the trial because they raise matters grossly prejudicial.

Then your Honours will see at about line 10, in response to a question from Justice O’Loughlin, the judge could not be blamed for not taking them into account at the trial.  The response was that the documents showed that there had:

in addition to the mental illness diagnosis, that there was a continuing effect to be expected from the surveillance and that the surveillance was having effect.

That is then developed on to the top of the next page.  At page 1725 at about line 17, Justice von Doussa asked:

Do you put this on an alternative basis that either they were not brought to the judge’s attention because they had the effect on the accused that prevented him realising what was there and properly instructing his counsel and, indeed, changing his counsel on a regular basis?  Or alternatively if the counsel should have known of them counsel did not and misconducted the trial in a fundamental way?

MR JAMES:   There was a lack of disclosure certainly for the first three and a half months…..the documents.  They raise two defences –

they were diminished responsibility and insanity –

and whatever the defence position might be in terms of protestations about not raising either of those defences and it is our case that neither of those defences would ever have been raised.  Nonetheless the duty of disclosure of a matter going directly to a defence is fairly clear.

He is speaking, one would think, of the duty of disclosure to us of the contents of the reports, at least with a view to a possible defence of diminished responsibility or M’Naghten materials.

GAUDRON J:   But then he does rely on them.  He says:

“Look, here are the documents showing you’re driven to distraction –

It looks as though there is a “when” erased out, “when” –

you should have acted rationally and competently.

MR JACKSON:   Yes, your Honour, that is so, and if one looks at the remaining passages one sees that the issue of what might have happened following disclosure of those documents is raised but then disposed of as being a matter based purely on the election of counsel.  That appears from the passage that really commences from Justice Cooper’s observation at line 29 on page 1725, and it goes through, your Honours, and the next passage really is at page 1726, line 9:

Cooper J:  Now, if that was available to counsel at some stage during the trial, which apparently it was, and counsel makes a conscious decision…..to take no step –

how “can you complain”?  Then Justice Cooper, at line 19:

If you are correct in the submission that you make that we ought to find the cause and effect that you contend for why was it not open to counsel to apply for a stay of the trial or a discharge of the jury for abuse of process –

and, that is the way in which his Honour’s mind was turning to, to “abuse of process”.  If one goes over, then, to page 1727 at line 10 Justice von Doussa says:

the discussion we have indicates that there is a possibly a question lurking here about the way in which the trial was conducted and upon that, Mr James, we have not got a great deal of evidence, have we?

Now, the passage really goes on through that page to 1728 and to line 5 on page 1729 and what we would say about it is that the Full Court appears to have been conscious that there was some possible issue about the propriety of the conduct of the trial by reason of the non-disclosure of this material.

McHUGH J:   That may have been a point that was at least indirectly raised but as I read it, these reports of Dr Milton were relied on in support of ground 13 because they tended to prove, according to the appellant, harassment on the part of the police authorities which affected his capacity to defend himself at the trial.

MR JACKSON:   Yes.

McHUGH J:   That is when it went in.  There is a passage at 1713 which makes it clear as to how the Full Court dealt with it.  At 1713, line 14, Justice von Doussa says:

But our view at the moment is that the ground of appeal ought to be argued on whatever its dimensions, on Dr Milton’s report and the transcript.

So, they took those and the transcript and determined ground 13 on that basis.

MR JACKSON:   Yes, your Honour, that is so.

McHUGH J:   Yes.

MR JACKSON:   It is simply not possible to say that this point was taken, and, indeed I should say, your Honours, if one goes to an earlier part at page 1685 in volume VIII, at about line 28, Mr James said:

That just simply means that he was upset, irrational and distracted.  It does not mean that he was necessarily unfit to plead at any point of time or M’Naghten insane –

and, he goes on through that paragraph dealing with the courtroom conduct.

HAYNE J:   Apropos of the course of events in the Full Court and the trial about the Milton reports, in supplementary book IX there are extracts of transcripts of trial which at 2254 and following of supplementary book IX suggest that the Crown was at least considering the question of whether it might have some reference made to the Milton reports by Commander Ninness in the course of his evidence.  There was at least that debate and the judge expressed strong views against it.

MR JACKSON:   Yes, your Honour.

HAYNE J:   As for the course of events on appeal, the affidavit which counsel for the appellant sought to read at 1700 and which led to the passages of objection and “I am not taking any technical point, they are our documents” that we noticed earlier occurring at 1710, that affidavit is, I take it, the affidavit of 2319 and following, where at 2321 we have the Milton reports.

MR JACKSON:   Yes, paragraph 15, yes, your Honour.

HAYNE J:   Yes.  Is that the course of the paper?

MR JACKSON:   Yes, your Honour, yes.

HAYNE J:   Yes.

GUMMOW J:   And it ended up with the tender of the affidavit being withdrawn at 1711, line 28.  On that basis, I would not press the tender.  It was not pressed because no technical point seems to have been taken which would have stopped the report itself going in without the affidavit.

MR JACKSON:   Your Honour, that is why one sees, in effect, the definition of material at page 1713 that Justice McHugh referred to between lines 10 and 15.  Your Honours, could I just say ‑ ‑ ‑

KIRBY J:   So does that concession by Mr James that Justice Gummow has drawn attention to mean that formally the evidence of Dr Milton was not before the Full Court?

MR JACKSON:   No, your Honour, the affidavit was not.  You will see, if I could go to page 1713 in volume VIII, lines 10 to 15, what the judge says.  So the affidavit is gone, no technical point is taken about there being no affidavit, the reports are there.

Now, I took your Honours to page 1685, where Mr James said nothing has been said about fitness to plead.  However, your Honour, as appears from volume III of the application book, Mr Collaery’s affidavit at page 686, paragraph 7 to 10, and this is material that is in this Court.  That was because the applicant instructed that such points were not to be taken.

McHUGH J:   I am having difficulty getting a conceptual framework for this argument.  The ordinary rule is that an appellant court judges for itself whether there has been an error from the materials which were before the court below.  That is the prima facie rule.  Now, is it your submission that in the materials which were before the trial judge, he made an error himself?

MR JACKSON:   Yes, your Honour.

McHUGH J:   Shortly, could you tell me what that is based on.  Just summarise for me what it is.

MR JACKSON:   Yes, it is, your Honour.  Your Honour, could I perhaps say that we have endeavoured to summarise that in one of the documents I referred to earlier and that is the document we handed up at the earlier hearing entitled ‑ ‑ ‑

McHUGH J:   I know that, it is “APPLICANT’S EXTRACTS FROM MATERIALS”.

MR JACKSON:   Yes.

McHUGH J:   Yes, I understand that.

MR JACKSON:   So that is the three – there were three things, your Honour.  It was the extracts from the Full Court’s reasons at pages 32 to 37, 39 to 42 and 42 to 43.  That document – and I did what your Honour is asking me to do, I think, in our oral submissions, pages 14 to 19 on the last occasion.

GAUDRON J:   And that is by reference to the actual conduct of the trial, conduct in the course of the trial.

MR JACKSON:   In the course – what the trial judge saw, as it were.  Now, your Honours, that is the first basis.

GAUDRON J:   And that includes, of course, the knowledge that there was supervision and the cross‑examination of Sergeant Jackson.

MR JACKSON:   Yes.

GAUDRON J:   Wherever that leads.

MR JACKSON:   Yes, your Honour.

GAUDRON J:   Yes.

MR JACKSON:   That is so, your Honour, yes.

GAUDRON J:   Which we do not have in full.

MR JACKSON:   No.  I will get it for your Honours.

GAUDRON J:   Yes.

MR JACKSON:   Now, your Honours, could I just say one thing in response to what your Honour Justice McHugh said.  Your Honour said prima facie the appeal is determined on the material before the court below and, of course, that is right, but, your Honour, the use of the term “prima facie” is, with respect, correct because, leaving aside cases of further evidence of other different new matters or something of that kind, one does have a situation where sometimes in the appeal court it is appropriate for there to be additional material.

Now, for example, take the simple case if some point was not taken by counsel purely by mistake where there were specific instructions that the point was to be taken.  Now, your Honours, there would be no reason, in

our submission, why an appellant would not be able to say by affidavit or his solicitor say, “Instructions were given on this point.  These were the instructions and for some reason they were not followed.”

The Court may or may not think the case is one that would be appropriate for the conviction to be set aside, or it may, but the evidence, in our submission, would be material which would be admissible.

McHUGH J:   In the common form of criminal statute, that would be under the equivalent of New South Wales 6(1)(c) – miscarriage of justice.  But the onus in that situation would be on the appellant to show that it had led to a miscarriage of justice, whereas when there has been a misdirection of law or a failure to admit evidence and so on, that itself is prima facie a miscarriage of justice and the proviso then requires the Crown to show that it did not affect the result, but when you are relying on a pure miscarriage of justice unconnected with misdirection of law, et cetera, et cetera, is not the onus on you to establish positively that there has been a miscarriage of justice?

MR JACKSON:   I accept there is an onus to establish a miscarriage of justice but the content of that will vary depending on what the issue is.  Could I just say, your Honour, that one of the features that emerges from Chamberlain [No 2] - and your Honours, we have given the references to this in our written submission and I will not trouble your Honours by going to them now – is that, even if it is a case where, on the evidence, a jury might have convicted, it does not follow that the conviction will not be set aside.

Your Honours, those are the submissions.  I undertook to give your Honours some references and some other matters, and could we do that in due course.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Game.

MR GAME:   Just taking up a point that your Honour Justice Hayne referred to, I think that, and I would put to the Court, that it is fair to conclude from that passage that your Honour referred to that Mr Adams indicated that he was going to attempt to make use of the Milton reports and then backed off, as it were, after the judge had indicated a position in relation to ‑ ‑ ‑

HAYNE J:   The wind was blowing a bit chill.

MR GAME:   Yes.  Now, if I could take the Court to paragraph 10 at this point of my supplementary submissions, as has been said more than once, the Milton reports were not before the trial judge and they were merely marked for identification during the course of the cross-examination of Detective Jackson.

After the Crown said, “I will rely on them,” and the judge intimated that he would be ruling against that no further use was made of them at the trial.  So it cannot be said that the trial judge fell into any error having regard to 428E.

GAUDRON J:   Does that mean, however, that the trial judge must at least have read some of the reports?

MR GAME:   He said, “I have not read them.”

GAUDRON J:   Yes, I know he said that, but on what other basis would his Honour have made that remark?

MR GAME:   Well, he must have picked up from what was said by Mr Adams in that exchange that we have extracted that there was something adverse in them to ‑ ‑ ‑

GLEESON CJ:   Well, he knew more than that.  The cross‑examination must have disclosed, must it not, there was a lot of propensity material in them.

MR GAME:   Yes.  Detective Jackson said, “Yes, I know ‑” in fact, there is other material that I rely upon which is – we will provide that transcript to your Honours, but Detective Jackson had certainly said something that was adverse in an answer ‑ ‑ ‑

GLEESON CJ:   That was the reason the trial judge was not having them, was it not, because he knew that they were full of prejudicial material about the propensity of the accused?

MR GAME:   Yes, quite right.  Now, in the Federal Court, counsel – and if you would look at page 7 of my written submission (e) – and I will come back to the transcript maybe after lunch, counsel said that they did not want them before the trial judge or the jury because they wished the case to be conducted on a particular basis as to his mental state and, in fact, Justice von Doussa questioned why you would not want the trial judge to see them and the position was maintained that it was a deliberate decision that counsel had made not to put the material either before the trial judge or before the jury.

Now, when we come to the very end of the trial, the trial judge – and I should say the conduct of the accused at trial was an issue in the trial.  It was something that he was cross‑examined on and it was something that was addressed on and it was the subject of grounds of appeal and it was, in fact, the grounds of very specific submissions by the respondent that Mr Eastman conducted himself deliberately in the way in which he did to gain an advantage as he saw it and both the trial judge and the Federal Court accepted that submission.

Now, if one looks at the remarks on sentence at this point, at page 424 of volume II of the application book one sees at line 40:

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.

And it continues.  Then one sees at page 431 line 26:

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.

So that on the state of the evidence as it stood before the trial judge it would seem, both at the trial and on sentence, the final position is that there is no psychiatric material before him suggesting any mental condition.

KIRBY J:   But you will understand the catch 22 problem, that it could be that it is the very essence of the type of psychiatric condition that exists that will lead an accused, in some cases, I am not saying this, to deny the existence of it, to forbid its being raised, and to reject any evidence being tendered on it, and to instruct his counsel not to follow that particular course, and yet objectively there may be that flaw.

MR GAME:   Quite, your Honour, but the existence of that paradox which we would face up to was really expressly eschewed by Mr James in his submissions.

KIRBY J:   That may be all part of the same problem, but I think at the moment you are simply dealing – conceptually there are three bases to look at the factual foundation of this case:  the record of evidence sworn, received at the trial; the record of evidence sworn and received at the trial as supplemented by the MFIs that were referred to and dealt with by the trial judge to some extent, not much in the Full Court; and all of that supplemented by material added in this Court.  At the moment you are dealing with one.

MR GAME:   Yes.  All I am doing at the moment is saying this.  Section 428 says if the judge is satisfied that there is an issue as to fitness, then he should send it up to the Tribunal.  No such issue raised before the trial judge, no medical evidence before the trial judge to raise that issue, conduct of the accused before the trial judge in a very specific way.  Ergo, no error of law by the trial judge.  Therefore, if section 24 of the Federal Court Act is to be applied by analogy or analogously picks up Criminal Appeal Acts, there are three ways in which you can succeed on an appeal:  error of law; miscarriage; or what was previously described as unsafe and satisfactory.

GAUDRON J:   Or fundamental failure of the trial processes, in which event the proviso simply does not apply, which was the approach taken in Kesavarajah.

MR GAME:   Yes, but, your Honour, that is the whole point.  That is the critical distinction between this case and Kesavarajah and it is why, we would submit, that the proposition put by Justice McHugh is absolutely correct.  Kesavarajah involves an error by the trial judge to address the issue of fitness to plead, both at the commencement of the trial and at some later point when it was specifically raised very late in the trial when he said, “It is too late.”

GLEESON CJ:   In Kesavarajah the question was raised by the prosecutor at the outset, was it not?

MR GAME:   Yes, and the prosecutor came back and said, “I have made a telephone call to the other doctor and he says he will go along with what this doctor says.”  And the Court said that was an error of the trial judge to take that particular approach.  Now, Kesavarajah then is in an entirely different line of territory than this case.

HAYNE J:   But do you then contend for this proposition, that if you are right in your contention that there was no material to put the trial judge on notice of the issue, there has been no miscarriage of justice, even if, in fact, the accused was not in a mental condition to defend the charge against him?  Do you go that far?

MR GAME:   Well, your Honour, if there were fresh evidence ‑ ‑ ‑

HAYNE J:   Before the appellate court.

MR GAME:   Yes.

HAYNE J:   Yes.

MR GAME:   If there were fresh evidence that were raised on the appeal that showed on the appeal that he was unfit at the trial, then that would sweep away whatever the trial judge had done, but that is not this case.  It is not this case, but in ‑ ‑ ‑

GAUDRON J:   Well, not yet is what Mr Jackson says.

MR GAME:   But, your Honour, it never will be the case.  Your Honour, perhaps, your Honour, if I could say you yourself said in Mickelberg that the availability of material at trial not used at trial itself does not support a miscarriage of justice, that is to say you said that in respect of whether or not when evidence is not fresh evidence, and that is the point in respect of the Milton material, if it is ‑ ‑ ‑

GAUDRON J:   But, no, is it?  Because I think that is not as I understand Mr Jackson’s argument today.  As I understand Mr Jackson’s argument today, it includes the proposition that if there is material to suggest as objective fact that there was a question – well, if there was material to suggest that there was a question whether as a matter of objective fact the accused was fit to plead, then the Full Court should itself have inquired into that, including by the reception of fresh evidence, if necessary.

MR GAME:   Well, your Honour, the Full Court – there are a number of propositions there:  first, we do not ‑ ‑ ‑

GAUDRON J:   But that is what I think his argument is.

MR GAME:   Well, first, we do not accept that the question is whether or not there is a question nor do we accept that the Full Court has any obligation to go outside the grounds, the submissions or the material that are put before it in the way in which they are put before it.

GLEESON CJ:   Was there any question of reception of fresh evidence before the Full Court other than one that involved Dr Milton’s reports?

MR GAME:   Dr Milton’s reports were not brought in under the fresh evidence ground.  There was a specific fresh evidence ground and no reference was made to the Milton reports in respect of the fresh evidence ground and they were specifically not relied upon as fresh evidence.  The fresh evidence ground concerned reports from a Dr Kobus and a Mr Wallace in relation to the ballistics material.  The fresh evidence grounds – and I should say this, that that passage that has been latched onto in respect of Mr Adams saying, “I will not take a technical point”, all he is saying is, “I do not object to you seeing them.”  It is quite clear the objection had been taken in the written submissions and orally to the receipt of the material as not being fresh evidence.  He was simply saying, “I do not object to you seeing them on the basis that they were MFIs at the trial.”

GLEESON CJ:   Well, you better come back to that at lunchtime.

CALLINAN J:   But he was abandoning any objection to form and you remember “form” was a matter we discussed on the previous occasion.

MR GAME:   Yes, well, he did abandon an objection to form, but ‑ ‑ ‑

GAUDRON J:   It is ambiguous to say that they were available at trial.  The whole point of the submission was that they did not become available until late in the trial, and then it was too late to change tack even if you had wanted to.

MR GAME:   But, your Honour, no submission of that kind was advanced. Perhaps I hesitate there.  No submission – it was mentioned.  It was certainly mentioned, but no specific submission was advanced of that kind in advance of a ground of appeal.  There were several reasons for that.  One in relation to the transcripts of the conversations.  The transcripts of the conversations:  Mr Eastman ran a very different case which was that he had never made the conversations and in relation to his conduct in court, the reports were two years old at that time.

Anyway, in relation the fresh evidence, there was a fresh evidence ground and that is ground 10, and that ground, as I said, related to the ballistics material.  There was a long discussion about Mickelberg and Gallagher, but it had nothing to do with the Milton material.

GLEESON CJ:   Is that a convenient time, Mr Game?

MR GAME:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.26 PM:

GLEESON CJ:   Yes, Mr Game.

MR GAME:   We have the transcript of Detective Jackson, and perhaps if I could provide the Court with copies of that and, while I am at it, give the Court some references.  Page 4161 in cross-examination of Detective Jackson, lines 30 and following through to 4162; page 4175, the whole of the page but particularly lines 8 through to 30; page 4192, lines 32 and following, and page 4229 a question is put.  In fact, Mr Eastman puts a question raising the question of fitness to plead at 4229, lines 5 to 10.

I must confess I have only had a superficial read of it, but that appears to be the references to Dr Milton in the cross‑examination by – of Detective Jackson by the accused at trial.  That is all I wanted to say about that. 

Returning to a question that was raised before lunch in relation to whether or not Dr Milton anywhere expresses the opinion that the applicant is unfit to plead, there is that passage at page 675, application book volume III, where he says about line 15:

I believe he is, for practical purposes, psychotic, ie out of touch with reality.  However, it would be difficult to substantiate this in terms of the present Mental Health Act – that legislation has been altered in recent years as to make it inapplicable in a very large number of cases –

Well, that is as close as he gets to addressing the question and it is not entirely clear whether or not he is addressing mental illness per se or whether or not that picks up the question of fitness.

KIRBY J:   What line was that on 675 or is this a case where the numbering is difficult?

MR GAME:   No, I have got the right numbering, 675 line 16:

it would be difficult to substantiate this in terms of the present Mental Health Act ‑ ‑ ‑

KIRBY J:   And was this evidence that was before the trial?

MR GAME:   No, your Honour.

KIRBY J:   Well, what are we doing looking at this material?

MR GAME:   Well, that is a question I have been putting in written submissions and oral submissions from day one.

KIRBY J:   Exactly.  We do not really seem to get to the whole issue that the appellant wishes to agitate if he is granted special leave.

MR GAME:   Quite.

KIRBY J:   And the only way he can get special leave, at least on one view, is if he can get past the barrier that Mickelberg creates.

MR GAME:   Quite.

KIRBY J:   And if he cannot, we are rummaging amongst issues at a trial and in an appeal where these issues were not either (a) properly before the courts because of the lack of sworn evidence, or (b) raised clearly in issues for trial before those courts.

MR GAME:   Yes, quite, your Honour, but my point is that Dr Milton does not express that he is unfit to plead.  Dr Milton’s material was not before the Federal Court for that purpose, anyway.  No submission was put, no ground was put.  At every turn, counsel turned in the opposite direction and, really ‑ ‑ ‑

KIRBY J:   But it is said that your predecessor before the Full Court said he would not take any technical objections and that, therefore, in some way it got before that court and that the tender was never withdrawn.

MR GAME:   But, your Honour, if you read that carefully, all he is saying is “I do not object to it going before the court in relation to the abuse of process argument on the identified grounds”, and it is quite clear.  I can take the Court to that and show how that occurred.  When he came to address the court, he only addressed the court in respect of abuse of process on this, and the Federal Court - nobody is suggesting that the Federal Court misconstrued the arguments that were put to it, and those arguments failed in limine, that is to say, the Court said that whatever the submission was put in relation to the material, it could not advance the applicant’s case for the reasons that it gave.  If I could perhaps pick up some references on this.  One has that passage at 1685 and this concerns conduct at trial ‑ ‑ ‑

GAUDRON J:   What volume is that?

MR GAME:   That is volume VIII.  Just to come back to your Honour Justice Kirby, nobody is saying that the Federal Court did not do what it was asked to do, address grounds that it was asked to address or submissions that it was asked to address.

KIRBY J:   But what I understand to be the suggestion is that, given what was before the Full Court of the Federal Court, given the duties that lie upon Full Courts who validly have an appeal before them to prevent miscarriages of justice, given what this Court has said about the role of the Courts of Criminal Appeal, Full Courts in that situation, that looking at it afresh, we can say that the Full Court ought to have been alerted to the danger that the whole trial failed for something fundamental, as happened in the earlier case where there was a misdirection on the issue of the onus of proof, that this just strikes at the very basis of the trial.  Now, I understand that is an argument that is before us.  It is not one that immediately attracts me, but it is one that is before us.

MR GAME:   Robinson, I think, is an exceptional case, and I am not sure whether it was comprehended by grounds that had been filed, for example, the Court concluded that the verdict was unsatisfactory.  Now, presumably, it must have been comprehended by something that was put in the court below, but I know of no case in this Court and each of the cases that have been referred to such as Moraz, Gipp, Pantorno, Davies and Cody, all comprehend a ground that has been articulated in the ‑ ‑ ‑

HAYNE J:   On the instructions of a client who is competent to give instructions, and that is the very premise that is under challenge.  Really, Mr Game, you have got to grapple with that challenge to the premise.

MR GAME:   But, your Honour, I am prepared to grapple with that premise, except that the only material that questions that premise is material that is sought to be relied upon in this Court for the first time.

HAYNE J:   No, the conclusion of the Full Court expressed was that in some respect the conduct of the accused man was not logical and rational.

MR GAME:   But, your Honour, that passage that you read is, with respect, read out of context, because if you read page 103 at D, which is the conclusion of the consideration of that very ground ‑ ‑ ‑

HAYNE J:   They concluded on the transcript, without inquiry and seeing witnesses, that from the transcript it appeared to them that this was a sufficiently rational but very disruptive and manipulative accused.

MR GAME:   Was acutely aware of what he was doing, was a person of some intellect, was capable of making decisions, and conducting the trial in what he believed were his best interests.

GAUDRON J:   A decision, though, based only on what was before it.

MR GAME:   Of course, well, what else – I mean, rhetorically speaking, how else could they possibly address the question?  And, each time they raise it ‑ ‑ ‑

GAUDRON J:   Why did they have to address the question?

MR GAME:   I am not suggesting they had to address any question; they ‑ ‑ ‑

GAUDRON J:   Well, having addressed it, it seems to have been addressed in a context in which it was not fully argued.

MR GAME:   Yes, but, your Honour, there is a crucial basic point here, which is that the adversarial system operates ‑ ‑ ‑

HAYNE J:   Just so.

MR GAME:   - - - on the basis of what people say when they stand up and put arguments.

HAYNE J:   And the adversary system depends upon rational participants.

MR GAME:   Quite.

HAYNE J:   That is why fitness to plead is not confined to the disposition of the parties, but is for the court.  It is one of the very rare inquisitorial functions of a common law court.

MR GAME:   But, not on appeal; on appeal ‑ ‑ ‑

HAYNE J:   There is the question.

GUMMOW J:   That seems to me to be the question.

GAUDRON J:   What did Sir Frederick Jordan say about it in Tucker?  I think that was on appeal, was it not?

MR GAME:   That is a 1915 case, I think, your Honour; he must have been a very young man.

GUMMOW J:   That was Chief Justice Cullen, I think.

GAUDRON J:   Was it?  Chief Justice Cullen.

MR GAME:   I am sorry.  That was a fresh evidence case under the Criminal Appeal Act that is a different question.  Section 428E is for the trial judge, the person conducting the curial process ‑ ‑ ‑

GAUDRON J:   Why is it not also for the parties?  See, one of the things that worries me about this is really the role of the prosecuting counsel.

MR GAME:   But your Honour has said that a number of times, but that is a point that was never argued and had it been argued, the appeal may have taken a very different course; he would not have been appearing on the appeal for starters and there would have been an affidavit from him saying whatever he thought about the question of fitness to plead.  This is, once again, turning the curial process into something different at the third level of the process.  Mr Adams saw Mr Eastman in many environments, before the Federal Court, in the High Court, on separate appeals during the course of the proceedings; the trial itself commenced after, I may be exaggerating, but I think two weeks or so of pre-trial litigation.  So the commencement of the trial was not the commencement of the litigation between the parties.

To actually articulate the proposition that Mr Adams acted irresponsibly, as it were, in not requesting the issue of fitness to be addressed is to do a disservice to Mr Adams.  One simply does not – there is no ‑ ‑ ‑

GAUDRON J:   It may or it may not be to do a disservice, and that is really the question.  The question is what the law requires, in particular what is required by 481E(1) in the context of the general law.  That is what the question is.  If you are so concerned about Mr Adams…..proper, it may be that if you are wrong in this, it can be said that he had not appreciated the full import of 481E but ‑ ‑ ‑

MR GAME:   I think your Honour means 428E.

GAUDRON J:   428E(1), I am sorry.  But that is really the question.  What in the context of the general law does that require?

MR GAME:   In a way this is a very – we are now in a situation where 428E is not raised by any party.  The material that was sought to be relied upon in support of it, Dr Milton, is abundantly clearly not before the trial judge.  There is no material before the Full Federal Court as to what counsel did or did not do.  There can be – and there never has been until this Court – any suggestion of a breach of 428E.  We get to the Full Court of the Federal Court, some entirely different submissions are put about the material, no ground is based on 428E.  It is not suggested that – what is now suggested is a miscarriage of justice coupled with some breach of 428E, but one cannot simply unscramble the egg, as it were.  The process has gone well past criticising either the trial judge or counsel for what they did or did not do at the trial.

KIRBY J:   Or the Full Court.

MR GAME:   Or the Full Court.

GAUDRON J:   I think that is a red herring, whether one is criticising or not  ‑ ‑ ‑

MR GAME:   I do not mean that defensively, your Honour.

GAUDRON J:   No, but I really think it is a red herring.  I think it distracts from the question which is was there a question at the time.  Well, first of all, what is the correct question to ask?

MR GAME:   Well, there are different questions at different ‑ ‑ ‑

GAUDRON J:   It talks about initial fitness to plead being raised by a party or by the court.  Now, it patently was not raised.  So, is that the end of the matter?  As a matter of pure construction of 428E(1)(b), is that the end of the matter, or, in the context of the general law, does some further question arise?  It does not seem to me to help matters by saying that there was some implied criticism of the judge or counsel in asking the question.

MR GAME:   No, I am not saying that to protect the honour of anybody concerned with this trial, I was saying it to, as it were, excite what I would see as the appropriate defence to the proposition which is that one cannot allege a breach.  What this comes down to in respect of the trial can be either of two things:  one, there was a breach of section 428E by the trial judge.  We say that that does not ‑ ‑ ‑

GAUDRON J:   It is what is required by the concept of a fair trial, according to law, in the general context which includes 428E(1)(b).

MR GAME:   Yes, but, your Honour, the only complaint directed to that could be that the ground of appeal that said the trial judge ought to have been satisfied that there was a question of fitness to plead.

GAUDRON J:   No.

MR GAME:   Or, the fresh evidence found that says, “Satisfying the fresh evidence rules, we have evidence here that establishes that this person was unfit to plead, regardless of the material that was before the trial judge”.

HAYNE J:   Now, that seems to me to adopt the very proposition I put to you before lunch which you rejected, namely that if there was no material to put the judge on notice of the issue there is no miscarriage of justice even if in fact this man was not in a mental condition to defend the charge.

MR GAME:   No, what I said was, your Honour, that if there is fresh evidence ‑ ‑ ‑

HAYNE J:   I understand that.

MR GAME:    ‑ ‑ it sweeps away what happened before the trial judge if it shows that he was in fact fit to plead.  I did not intend in any way to put a different proposition now, before or after lunch.  That is in different line of territory than any complaint about a failure to comply with section 428E.  It is not concerned with what happened during ‑ ‑ ‑

GAUDRON J:   In a sense, there is no question before this Court whether there was a failure to comply at this stage.  The only question before this Court is whether there was material at some stage to indicate that that question either should have been raised or pursued or investigated.

MR GAME:   Well, the Federal Court does not have a duty to investigate anything.

GUMMOW J:   That is the question.

GAUDRON J:   That is the question.

GLEESON CJ:   The question that has been formulated by the Registrar for argument today asks whether the Federal Court made an error.  The question is whether, on the material that was before the Federal Court, that court could and should have done something which it failed to do.  That is the question raised for discussion today.

MR GAME:   Yes.  Well ‑ ‑ ‑

GLEESON CJ:   And that question both specifies the material upon which the question is to be answered, which does not include, for example, Dr White’s evidence, and it identifies the error which may be attributed to the Federal Court, that is, failing to exercise a power to make inquiry about and consider the appellant’s fitness to plead or stand his trial.

MR GAME:   Well, can I just begin by saying this, your Honour.  With respect to the paradox that Justice Hayne has referred to, there can be no question of that paradox having any role or significance to play in the Federal Court because there is no material before the Federal Court that would lead us to think there was such a paradox.  It is only the evidence of Dr White that says there is a paradox in this case.  Therefore, there is nothing to suggest that, on appeal, the adversarial process has broken down.

GUMMOW J:   No, no.  Look, Mr Game, the question is could and should.  Do you concede could?  You have got to take this by steps.

MR GAME:   Had power?

GUMMOW J:   Yes, that is right.

MR GAME:   Had power, yes.

GUMMOW J:   You concede it, do you?

MR GAME:   Well, it had power to ask the parties – it did not have power to force the parties to argue ‑ it had power to raise with the parties the question of fitness, but we say that the Federal Court in more than one respect indicated to the – and you have already been referred to some of the passages in the written submissions – it said there may be some larger question lurking around here and counsel did not take up the offer.  What more, we say, could the Federal Court have done?

GLEESON CJ:   Well, a possible answer to that rhetorical question – and I am not suggesting a view about it, but a possible answer is that the Federal Court, over the protests of Mr Eastman and his counsel, should have embarked upon some inquisitorial exercise.  Now, how that would have been done is another question, but that is at least a theoretical possibility.

MR GAME:   Well, we say that it would have been going beyond its constitutional function and the powers that it had under section 24 to do so, which is to rule upon identified grounds of appeal by the parties.

GUMMOW J:   I thought 10 minutes ago you conceded the opposite to me.  That is why I asked you.

MR GAME:   Your Honour, what I conceded – it seems like twice I have contradicted myself – but, anyway, what I ‑ ‑ ‑

GUMMOW J:   One needs to be very, very clear about this.  This is at the heart of the matter, to my mind at any rate.  And, it is not addressed in your written submissions, that is why I am so agitated about it.

MR GAME:   What is addressed in my written submissions is – I thought it was, but ‑ ‑ ‑

GUMMOW J:   Which paragraph deals with the question of power?

MR GAME:   We sought to lay out our arguments in respect of the powers and functions of the court in paragraphs – we set out what Chamberlain stands for, that the Federal Court operates on the analogous powers of State courts of criminal appeal.  That includes a power to intervene on any other ground whatsoever where there was a miscarriage of justice.  But, normally speaking the court determines grounds identified and articulated by the parties and gives the parties a reasonable opportunity to be heard.

GUMMOW J:   Which paragraph is that?

MR GAME:   Paragraph 4. 

GUMMOW J:   What has to be addressed – has to take as its starting point the fundamental proposition Justice Hayne put to you, that is to say the peculiar nature, both at general law and under 428E(1), where the issue of fitness is raised by the court.  It is an odd set of affairs that that happens.  The question really is how, if at all, is that translated into the appellate structure that applies here?

GLEESON CJ:   Let me take an exaggerated and rather brutal example to make the point.  Suppose an accused person at his trial conducts himself in a highly unorthodox manner, dismissing and re‑engaging counsel, running arguments that do not appear sensible, engaging in dangerous cross‑examination, and so forth, and he is convicted, and the matter comes before an appellate court, the Court of Criminal Appeal, and the Court of Criminal Appeal observes that there was a defence of diminished responsibility run in the case and there was evidence which concerned psychiatric disabilities, and there is no ground of appeal referring to fitness to stand trial, and the court says to counsel for the accused, “We cannot help but notice some aspects of your client’s behaviour at this trial, and some of this psychiatric evidence.  We are concerned about the question of whether your client was fit to plead”.  And the client taps his counsel on the shoulder, and his counsel says, “My client does not wish to expose himself to the risk of spending the rest of his life incarcerated in a mental hospital awaiting a favourable determination of some tribunal about whether the time for his trial is going to arrive.  We do not intend to put any evidence or any argument on that issue”.  Now, the question is, where does the Court of Criminal Appeal go from there?

MR GAME:   Our answer to that is that they do not proceed any further.  They have raised it with the parties.  They cannot make the parties argue a ground of appeal against their will.

GLEESON CJ:   But that is the question because, you see, the conundrum is that if that which they apprehend as a possibility is right, the man who is tapping the barrister on the shoulder instructing him to give that response is not mentally competent to make decisions of that kind.  How does the system accommodate that problem?

MR GAME:   The only way the system can accommodate that problem is by assuming that there is no paradox until it is presented before it with an argument, a submission, a ground that asserts that.

GAUDRON J:   Why not material that suggests it?  Why does not the paradox arise at that stage?

HAYNE J:   A serious question for investigation.

GLEESON CJ:   How would the investigation proceed?  Has the Court of Appeal power to require the man to submit to a psychiatric assessment?

MR GAME:   No.

GLEESON CJ:   Suppose he is saying, “I don’t intend to lead any evidence to try and convince you that I’m mentally incapable.  The Crown isn’t leading any evidence to convince you that I’m mentally incapable”.  What does the appellate court do?  I think we know what a trial judge can do.

MR GAME:   The appellate court does nothing.

GLEESON CJ:   There is a rather important apparent difference, is there not, between the powers of a trial judge confronted with the paradox and the powers of an appellate court confronted with the paradox?

GAUDRON J:   But may it not be that the questions are different in relation to each paradox?  Before the trial judge if the question arises, what has to be determined is whether or not he is fit to plead.  Before an appellate court if the paradox arises, all that has to be determined, at least on one view, is whether there was a question whether he was fit to plead, not whether it was – on one view.

MR GAME:   Your Honour, not at all, we submit.  What the appeal court has to do is to identify whether or not it has been established before it either that there was a miscarriage of justice or there was an error of law.

HAYNE J:   Or whether there has been a trial according to law.

MR GAME:   That would be a miscarriage of justice case, your Honour.  It would fall under that ‑ ‑ ‑

GAUDRON J:   And would there not be a miscarriage of justice, at least in accordance with what was held in Kesavarajah, if there were a question and it was not addressed in accordance with 428E?

MR GAME:   If, before the trial judge, the trial judge ought to have been satisfied that there was a question, then there would be an error of law of the trial judge and all Kesavarajah says is that, in those circumstances, you do not apply the proviso; that is all it says.  So that does not take the position any further either.  But there cannot be an appeal, if there is not a ground; there cannot be a ruling unless there is a ground filed under the orders of the Federal Court and identified.  There has to be a notice of appeal with grounds according to the rules.  Now there is power to waive the rules, but the power to waive the rules would still require the identification of a ground and principles of natural justice would require that the respondent have an opportunity to respond to it, which is the other side of the same coin, but it does go to power ‑ ‑ ‑

GAUDRON J:   But I think if Mr Jackson’s submission were accepted in relation to the matters raised today, you would have an opportunity to respond to it, but your opportunity would be in the Federal Court on a hearing of that single issue in the appeal.

MR GAME:   I am diverting, your Honour, but in a sense we have already gone through this; the Federal Court says, is there not some other question lurking around here about the conduct of counsel, ie not raising this issue, and the court said similar things more than once and counsel says nothing.  The court has done as much as it – to go beyond that is to turn the adversarial process, the appeal process of determining identified grounds into something different.

GAUDRON J:   Now sometimes there is little less than meets the eye in relation to the adversarial process in the appellate jurisdiction.  For example, a trial judge is required to give directions as to a defence that is open on the evidence, even though it is not raised.  Another example where the adversarial processes do not work exactly as they may be thought to in other cases is in the Robinson situation and perhaps the Gipp’s situation, where an appeal is allowed, even though the point is never taken below.

MR GAME:   It was covered by an existing ground, your Honour, in Gipp.

GAUDRON J:   Yes.  Well, your complaint at this stage is the absence of a draft ground of appeal here or the absence of a ground of appeal in the Federal Court?  Which is your complaint?

MR GAME:   Well, my complaint is not merely the absence of a filed ground of appeal; the absence of any submission and submissions to the contrary.

GAUDRON J:   But all of that, those illustrations where the adversarial process does ‑ ‑ ‑

MR GAME:   Sorry, and the absence of any material.

GAUDRON J:   Yes.  Well, that is another question, “Is there material?”  But what I am putting to you in a sense is, even where there is no issue as to fitness to plead lurking, no lurking issue I will call it, the adversarial processes do not work as strictly as you might think.  Now, why should they work as strictly as you would suggest in a context where there is a lurking question as to somebody’s capacity to give instructions?

MR GAME:   Well, because – and I think I have probably said this already, but the court must act upon what the people who are presenting the case tells it and until the court has some reason not to believe or accept what the people submitting to it tells them, then it is absolutely fundamental that the court proceed upon that basis, including how the material is relied upon before it.

GAUDRON J:   Well, that brings you precisely to the question that you were asked to argue today:  was there material before the Full Federal Court that should have alerted it to this lurking question?

MR GAME:   Well, I have endeavoured to show in the written submissions that there was not and that the material such as it was was used in a very different and specific way, so that there was no material – there was neither power nor material, sorry ‑ ‑ ‑

GAUDRON J:   Well, why was there no power?

MR GAME:   There was no power because there was no ground and no articulated submission.  Now, I say “articulated submission” because the court could waive the filing of a ground and accept an oral ‑ ‑ ‑

GAUDRON J:   Even if there were material – let us assume there were material that suggested that there was a lurking question.  I will not put it any higher than that.  There is material to suggest that at all times there was a lurking question, but there is no ground and no submission, then in your submission there is no power.  From what does that come?  On what do you base that submission?

MR GAME:   Well, your Honour, I base it on section 24, the structure ‑ ‑ ‑

GAUDRON J:   But you have to base it on the nature of judicial power, do you not?

McHUGH J:   It has got to be an issue.  I mean, take Mr Pemble’s case.  Supposing, notwithstanding the fact the point was not taken at the trial, on appeal he did not want the point taken and did not have a ground of appeal, could this Court or the Full Court of the Federal Court say, “Well, we are going to allow this appeal and order a new trial, notwithstanding that you do not want to argue the point and the Crown does not argue the point.  We ourselves will deal with it without argument”?

MR GAME:   Well, the answer is no.  There are cases that say that if you file a notice of appeal without any grounds that is an invalid notice of appeal.

McHUGH J:   Yes.

MR GAME:   That principle must apply, and there are several cases that your Honour Justice Kirby referred to in Gipp and there is a New South Wales case called Lawrence (1980) 1 NSWLR and there is a Queensland case and a couple of others that refer to that.

GLEESON CJ:   Mr Game, suppose that in the present case – let me assume, and I think it seems to be agreed, that Acting Justice Carruthers did not have in front of him the Dr Milton reports but let it be supposed that those reports were before the Full Court and let us suppose Dr Milton said in his report, “I have very serious doubts about whether this man will be fit to stand trial” and suppose the Full Court saw those reports in the course of argument and said, “Just a minute, why is there not some ground of appeal that complains of the failure of prosecuting counsel to draw this matter to the attention of the trial judge which complains that there was no trial, according to law, because there was no investigation of fitness to plead” and counsel appearing for the appellant says, “We reject the opinion of Dr Milton.  We will put no evidence before the Court to support that opinion and we will advance no argument in support of a submission of the kind that you foreshadow” and the Crown says, “Neither will we”.  Now, what is it within the competence of the appellate court to do, having reached that stage?

MR GAME:   It can do nothing.

GAUDRON J:   Or to say on the material there was a question which should have been raised, or there was a question at all relevant times.  Whether it should have been raised or not, there was a question.  The question was not determined, therefore, set aside the conviction, remit for a new trial.  The question of fitness to plead may or may not again arise.  They might be perfectly fit at the subsequent time.

MR GAME:   But, your Honour, somebody has to articulate – the parties have to articulate the question for the court’s determination.

GAUDRON J:   Why?

HAYNE J:   What if the question is self-evident, “Is this man fit to be tried?”  That is the question.

GLEESON CJ:   A possible factual position is that Dr Milton was wrong.  Now, how does the Court of Appeal decide that, in the circumstances that I have postulated?

MR GAME:   Well, we submit they cannot, but we submit that is exactly the same as this.  That analogy applies to this case.

GAUDRON J:   But on one view at least, a Court of Appeal never has to decide whether or not the person was fit to plead.  The only question, on one view, and that is the way Kesavarajah was decided, is whether or not there was a question at the time of the trial.  There may be a further subsidiary method, another way of formulating whether or not a question was raised at the time of trial.

MR GAME:   I have said this before, but that is never going to be the question for the Court of Appeal, unless it is framed in terms of some error that was made by the trial judge in his assessment of that particular question.  This is exactly the same as if there were a filed ground, if there were one filed and completely unarguable ground of appeal and nothing else, and that filed ground, as it were, drifts away into the sunset and the appeal is dismissed, if the proposition that your Honour puts is correct, the appeal court would have to go through the material and decide for itself if there were any other grounds.  The fact that there are 13 grounds in this case does not make any difference.  That is to say, if what your Honour is putting in terms of the duty of the court is correct, one must advance from a point of no grounds or one ground to a full-scale investigation as to ‑ ‑ ‑

GAUDRON J:   I do not think that is it.  I think you are being a little simplistic  ‑ ‑ ‑

MR GAME:   May be I am.

GAUDRON J:    ‑ ‑ ‑ because the question is not, “Does the court of appeal have to go on an exercise of its own if there is nothing to suggest it?”  The question is, it seems to me, and always is that which was directed to be argued today, “Was there material before the Full Federal Court which should have alerted it to a lurking question?”.  I will leave it as broad as that.  It can then be refined a little later.

MR GAME:   As to the ‑ ‑ ‑

McHUGH J:   You stop at the first limb, do you not.  The question is whether on the material of what was before the Full Court, that court could and should have made inquiry.  You say they could not make an inquiry.

MR GAME:   That is correct, your Honour.

HAYNE J:   That is, they could not make an inquiry into the jurisdiction of the trial court over the accused?  That is what it comes to, is it not?  If this accused was unfit to plead, what issue was ever properly joined between prosecution and accused at trial?  None.

MR GAME:   That would be true, yes.

KIRBY J:   But as I understand it, what you say is you have to at least raise something before a court, otherwise it is really becoming a judicial ombudsman and not a court, that you cannot just throw evidence and material and say, “Well, over to you, boys”.

GAUDRON J:   But were the courts not traditionally what Justice Kirby describes as traditional ombudsmen in this area?  That is to say, it has always been the case that a judge could raise this question for himself or herself.

MR GAME:   A trial judge.

GAUDRON J:   A trial judge, yes.

MR GAME:   That is different.

GAUDRON J:   But at least at that point the judge is being a judicial ombudsman.

MR GAME:   But the judge stands in a quite unique position in respect of that.

GAUDRON J:   Yes.  I can understand an argument based on the nature of judicial power which would say no, a court cannot raise these matters for itself and investigate them for itself.  But of course, if you go back to Boilermakers, there are also powers ancillary to judicial powers.  Prima facie at least, this question of raising and determining fitness to plead is a power of the very essence of the power that is ancillary to the exercise of judicial power, and so the power question may not be so obvious one way or the other.

McHUGH J:   Did this issue of fitness to plead really arise out of the common law or did it not apply out of the statutory construction given to the Criminal Lunatics Act of 1800?

HAYNE J:   Was Frith’s Case before or after the Criminal Lunatics Act?  Is it Frith who attacked a member of the royal family and was found unfit to plead?

McHUGH J:   I do not think his name was Frith.  Was it Hatfield?

HAYNE J:   There is an 18th century case I thought which first looked at questions of fitness to plead, and I may be mistaken, but I am not sure whether it predated or antedated the Criminal Lunatics Act.

KIRBY J:   The Crown should know of any cases involving attacks on members of the royal family, Mr Game.  You will have to dig that up.

MR GAME:   This particular Crown does not.

GLEESON CJ:   One thing we know is that the statute that governed the trial in this case contained specific and indeed rather elaborate provisions as to the course that a trial judge could take here of his own motion to investigate the question of fitness to plead, but what is not so clear is what, in practice, an appellate court could do if confronted with a situation of the kind arising out of the example that I gave you, which was really only an example that was intended to assume against you the merits of the argument in relation to what Dr Milton’s reports actually show.

MR GAME:   I do not think there is any case in which it has been suggested that the Court can force the parties to argue a ground of appeal which they pursue.

GLEESON CJ:   Before you get to the matter of argument there is a question of evidence.  If the lurking question was seen because of a statement made by Dr Milton that was not supported by evidence or argument from anybody else or from any party, they just have the bare fact of knowing that a psychiatrist expressed a certain opinion, without, as far as I can see at the moment, any prospect of themselves examining the reliability of that opinion because of the attitude that has been taken by the parties.

MR GAME:   Yes, and because in this particular case it was not advanced to that end.  It was advanced to a different – it was not advanced to an end that relied upon any diagnosis that was made by Dr Milton.

GAUDRON J:   One can well understand counsel for the appellant, or the accused, not taking the point, but let us concentrate for a little moment on the position of a responsible prosecutor with obligations to the court.

MR GAME:   Is this a trial or on appeal, your Honour?

GAUDRON J:   Let us start with on appeal.  Would a responsible prosecutor with obligations to the court simply say, “I am not going to deal with that”?

MR GAME:   A responsible prosecutor who had concluded at the trial for himself that, “Do I just come to the conclusion that there was no proper basis for him to ask the trial judge to address the question of fitness to plead?”, and one is entitled to infer that much because Mr Adams did not raise the issue with the trial judge, would have no responsibility on appeal other than to address responsibly to the grounds of appeal which are filed.

GAUDRON J:   Say I am not going to deal with that question.

MR GAME:   Not to address the question of fitness to plead afresh.

GAUDRON J:   If raised by the court.  Would not even assist the court by providing the material which might lead the court to conclude that there is no such lurking question?

MR GAME:   He was not asked, and had he been asked he would have been ‑ ‑ ‑

GAUDRON J:   No, we were dealing in the hypothetical situation posed to you by the Chief Justice, and I am asking whether it is not closer to reality to consider that if asked, a responsible Crown Prosecutor, or a responsible prosecutor, because you are the DPP not the Crown, so I absolve you from the need to know about homicides with respect to royalty - - -

HAYNE J:   Her Honour speaks for herself.

GAUDRON J:   Realistically there would be some assistance forthcoming, would there not?

MR GAME:   Well, the only assistance – there are only two ways in which assistance could come forward.  One is to direct the court to passages in the transcript or material that suggested unfitness or by putting on an affidavit as to what counsel perceived the position to have been at trial.

GLEESON CJ:   Or suppose the appellate court put it directly on the counsel for the prosecution and said, “Have you considered the matter of fitness to plead?”  And suppose counsel said, “Yes, of course I have.”

MR GAME:   Well, that is the end of it, unless there is a ground of appeal that actually causes the court to make a ruling in relation to that identified ground.  As I said before, the court cannot force the parties to argue grounds.  One of the consequences of unfitness to plead would be that Mr Eastman – sorry, of an inquiry, is that Mr Eastman, with a result of unfit, means that he would have had lawyers forced on him whose instructions he could not terminate.  He would have lost control of the trial process.  Now, one really comes back to the paradox, unless you have got something before in the curial process to make the court conclude that there is in this case a serious paradox that requires resolution, then one must go by the book of the adversarial process, which is just simply relying on what the lawyers put to the court.

GUMMOW J:   Now, it may be, Mr Game, and Justice Hayne has just been reminding me, that this anomalous principle as to fitness to plead being taken by the court may arise at a time historically before the accused has had anything like the present right to counsel.

HAYNE J:   So in Frith, which was 1790, where Frith was accused of throwing a stone at George III, that was pre‑legislation and the point was taken by the court, not by the man accused.

GUMMOW J:   Well, he would be standing there gibbering.  He did not have any counsel.

HAYNE J:   And at risk of rather dire consequences.

GUMMOW J:   And it is in that context that the statute Justice McHugh referred to was passed later.

HAYNE J:   Though it is notable that in Presser in Victoria in 1958 and later, I think, in Khaullouf in 81 VR – certainly in Presser there is no doubt it was the judge who took the point and forced it on counsel for the accused unwilling and, I think, if one reads Khaullouf, it may be that the idea was the idea of the court, though a ground was ultimately formulated.  Yes, Khaullouf 81 VR 360.

MR GAME:   We would put that the presence of counsel representing a person on an appeal really takes away from the court some ‑ ‑ ‑

GUMMOW J:   Well, there were no appeals in the old days.

McHUGH J:   No.  There were two things you have got to – there was no right to counsel in felony cases until 1836, which was after Frith’s Case and after the Criminal Lunatics’ Act and appeal is not a common law concept.  It was only when you got the Crown cases stated legislation in the last century that there was any real way you could challenge most convictions.  There were various writs that could be used, but they were not much use in many cases.

MR GAME:   I am not quite sure I can take it any further.

McHUGH J:   Well, I know, but your context is quite different in those days.

GUMMOW J:   And the question is there is a new context now, section 24 of the Criminal Court Act, but what I could get you to do is to adjust your spectacles to that in view of where it all comes from.

MR GAME:   I missed the last words, your Honour.

GUMMOW J:   In view of where all this comes from.  You only look to the past to help you understand the present.  We have been looking at the past to try and understand the present, which is section 24.

MR GAME:   I may be being unduly simplistic, but ‑ ‑ ‑

GUMMOW J:   On this question of “can”.

MR GAME:   On the question of “can”, our basic position is that ‑ ‑ ‑

GUMMOW J:   I would have thought all these matters assist you in some way, providing some straw anyway to make something of it, but at the moment I am not minded to set about making it myself.

MR GAME:   Well, I mean I have put this before, but our basic argument is that if section 24 provides a structure within which one appeals, it provides in the rules for grounds to be filed and identified.  There is provision for counsel to represent an accused person at trial and on appeal.  The exercise of judicial power, in that context, is an exercise of judicial power about issues that are brought to the Court for its determination and until it is shown that the adversarial process does not work, or cannot work, then there can be no question of any exception to that principle.

GLEESON CJ:   One of our difficulties, Mr Game, is that we have to state principles that will apply to cases other than the present case, and one possibility that is concerning me is that there may be extreme cases in which the nature and quality of the information before an appellate court, which indicates unfitness to plead, is such that the Court would both be entitled and obliged to depart, perhaps depart radically, from the ordinary adversary procedures, and there may be questions of degree that enter into that aspect of the present problem as to whether this was a case in which the Full Court of the Federal Court should have done something about what has been referred to as the lurking question.  It may depend in a particular case upon the quality of the information about the problem.

MR GAME:   Well, your Honour, the nature of the power cannot depend, obviously, upon the quality of the information.

McHUGH J:   Perhaps the argument that is put against you is that the court should develop a doctrine under section 24 just in the same way as it was in Frith.  In Frith he was represented by counsel because, obviously, it was a misdemeanour he was charged with. His counsel wanted the case adjourned. He strongly opposed it. The court said they would adjourn it. It was a court consisting of Lord Kenyon and two other judges of the Common Pleas, but Lord Kenyon said – it is 22 State Trials at 311:

such is the humanity of the law of England, that in all stages both when the act is committed, at the time when the prisoner makes his defence, and even at the day of execution, it is important to settle what his state of mind is; and at the time he is called to plead, if there are circumstances that suggest to one’s mind that he is not in the possession of his reason, we must certainly be careful that nothing is introduced into the administration of justice, but what belongs to that administration.  The justice of the law has provided a remedy in such cases; therefore I think there ought now to be an inquiry made, touching the sanity of this man…..; whether he is in a situation of mind to say what his grounds of defence here are.  I know it is untrodden ground though it is constitutional:

Then he says:

Then get a jury together to inquire into the present state of his mind; the twelve men that are here will do.

And they empanel a jury.  So, it seems to have just been a doctrine invented to do justice as it was seen there and then.  The argument that is perhaps put against you is, why is not the extensive grant of judicial power conferred on the Full Court by section 24 not adequate and some changes being made to adopt a like procedure.

GLEESON CJ:   In an appropriate case.

McHUGH J:   Yes, in an appropriate case.

MR GAME:   The reason is because the exercise of appellate power has got nothing to do with the court addressing itself to the fitness to plead of the individual.  It is no part of - that is no aspect of its role to address itself to the fitness to plead of the individual.

KIRBY J:   Do you put it in two ways; that way, and in any case in order to be an exercise of appellate power there has to at least be some real foundation and in this case there is none.

MR GAME:   Yes.

KIRBY J:   If you look at the factual premises, there is not sufficient to enliven an anxiety on the part of the Full Court, in fact.

MR GAME:   That would be the answer to the “should” question if the “could” question was resolved unfavourably to us.  But, the Appeal Court does not sit down – it is no part of its function to sit down and ask itself any questions.

McHUGH J:   Maybe that is the question.  Does it have such a power, generally?  If no, does it have such a power in the case of fitness to plead or in some other area which might result in a trial being regarded as a nullity?

MR GAME:   Section 24 does not speak differentially to fitness to plead to anything else.

McHUGH J:   I know it does not.

MR GAME:   It only speaks to section 428E in so far as 428E is brought before it as the subject of a complaint about its ‑ ‑ ‑

McHUGH J:   But section 28 gives a power to make such order as it thinks fit, does it not, in relation to a judgement?

MR GAME:   Yes, but only on the – it having determined that an appeal is made out.

GAUDRON J:   In the context of the receipt of further – not fresh – evidence, I think.

MR GAME:   That has been construed as meaning fresh evidence, your Honour.

McHUGH J:   Not in CDJ v BDJ it was not.  I think the majority judgment said it is not confined to fresh evidence.  It really cannot be because – at least that is what we held in CDJ v BDJ.

GLEESON CJ:   Mr Game, if you have got to a point in your argument where you have substantially covered the two limbs of the question, there is a problem I want to raise with you that I also raise with Mr Jackson concerning our procedure.

MR GAME:   Yes, your Honour, all I wanted to do is to give the Court some brief references to a transcript in relation to this argument which would not take more than five or ten minutes, I should hope.

GLEESON CJ:   You tell me when it is a convenient time and I will ‑ ‑ ‑

MR GAME:   Shall I give your Honours the transcript references and then perhaps ‑ ‑ ‑

GLEESON CJ:   Yes, certainly.

MR GAME:   Your Honours have been taken to some of these, but at page 1685 ‑ ‑ ‑

KIRBY J:   This is on what point?

MR GAME:   How the questions were argued in the Federal Court.  In the written submissions I have set out at paragraph 8 what we say happened in the Federal Court and at paragraph 11 I have set out briefly how we say the issue was advanced, and your Honours have already been referred to what the Federal Court decided.  We say that is consistent with how it was put to it.  There is that passage at volume VIII, page 1685 line 30:

That just simply means that he was upset, irrational and distracted.  It does not mean that he was necessarily unfit to plead at any point of time –

so counsel, we would submit, is alive to the issue but not pursuing the question of unfitness.  At page 1707 the objection is taken.  The nature of the objection is laid out at 1708.  Then at the bottom of 1709 there is reference to the affidavit, the “fresh evidence point”, then at the top of 1710 line 5:

MR JAMES:   Well, I would put it on two bases and that is going, if necessary, to the other doctrine, that is a collateral question, an abuse of process question.

VON DOUSSA J:…..If it is the abuse of process ground you have got the reports.  We have got the dates on which it went in and the circumstances in which they came to light.

That is the basis upon which Mr Adams says at the bottom of the page:

Well, I would not take any technical point –

and then he maintains:

I would…..except upon the basis that I have already outlined –

and one would be entitled to concluded, and it is certainly consistent with the way in which it was argued that he was maintaining the point that he had taken a few pages before.  At page 1711 at 15, Mr James said that they were “not fresh”.  That is a reference to the diaries.  Then Justice von Doussa says at line 20:

Well, there is an objection to the affidavit…..I can understand you need to have before us the reports which can be accommodated without putting the affidavit and all the consequences of that in.

Then 1712, Justice von Doussa says:

Well, that is the Fresh Evidence ground.

And then his Honour says:

If it is being put on an abuse of process ground that is a different consideration.

Then Justice von Doussa at 1713 sets out the basis upon which he understands it is being put, Dr Milton’s report and the transcript, addressing particularly ground 11, being “argued on the transcript, plus Dr Milton’s reports”.  Then we go to the next day, 1721, line 23.  Mr James says:

It is not the defence case and never was, that Dr Milton made an accurate diagnosis.

GUMMOW J:   We will just go back to 1713 again, line 20.  His Honour says:

So that ground 11 –

it should be 13, I think –

will be argued on the transcript, plus Dr Milton’s reports –

That means they were in evidence.

MR GAME:   But ground 11 is a reference to the grounds concerning the transcriptions, your Honour, and that is the primary ground on which they were first argued, so it would be ground 11.

GUMMOW J:   It is ground11.

MR GAME:   I am sorry, no, then he says:

I think your Honour is referring to ground 13. 

VON DOUSSA J:  Thirteen, I am sorry, 1 and 13.

and then:

MR JAMES:  Part of what appears in 11 and ground 1.

Yes, your Honour, so it is all three, really, 1, 11 and 13.

GUMMOW J:   Yes, 1, 11 and 13.

MR GAME:   Yes.  Now, then you  ‑ ‑ ‑

GUMMOW J:   Just a minute.

MR GAME:   Sorry.

GUMMOW J:   Anyhow, so Milton’s reports were in evidence.

MR GAME:   Your Honour, they were in evidence in support of an abuse of ‑ ‑ ‑

GUMMOW J:   Do not say to me “for this purpose or that purpose”.  They were in evidence.

MR GAME:   Well, it was for a particular purpose.

GLEESON CJ:   Well, they were material that was before the Full Court within the meaning of that letter.

MR GAME:   Yes, in support of an abuse of process argument, not in reliance of the diagnosis.

GUMMOW J:   Yes, I know that, but there are cases that say if it is in, it is in.

MR GAME:   There are cases that say it depends, there are different principles that apply, with respect, your Honour.  Page 1721 – but, your Honour, the point that had been taken was that it could not get in as fresh evidence.  That is to say, it was inadmissible as fresh evidence, and the cases that say that if it is in, it is in do not say that it is in for inadmissible purposes, and that is the point that had been taken previously.

GUMMOW J:   Just a minute.  It was not evidence before the primary judge.

MR GAME:   That is right.

GUMMOW J:   But it is evidence before the Full Court.  You have said so.

GAUDRON J:   And it only has to be further evidence.

GUMMOW J:   It is further evidence.  It does not have to be fresh evidence; further evidence.

GLEESON CJ:   They actually quote it in their judgment.

GAUDRON J:   Yes, and you see there may be a real distinction between further and fresh evidence when you are going to the question, not of dangerous verdict, for example, but whether there was a trial at all or whether there was a fundamental failure in the trial processes.  Say, for example, it turned out and it just emerged at the Federal Court level that three of the jurors did not speak English and the case was conducted entirely in English.  That might be the subject of further evidence, but it would not need to be fresh evidence in the way that that is usually understood for unsafe and unsatisfactory verdict.

MR GAME:   Well, there is a passage I think in Gallagher where Chief Justice Gibbs said whenever the material establishes that there was a miscarriage of justice the material would be received even if the evidence did not fall strictly within the principles.

GAUDRON J:   Yes, and hence the Act says “further evidence”.

MR GAME:   But my point is this, that it is not something that can be ignored that material was put before the court on a particular basis for a particular use, a particular use which the court addressed, which was an abuse of process argument with respect to both the surveillance, the interceptions and the conduct at trial, and it dealt with it on its merits and there has been no ‑ ‑ ‑

GUMMOW J:   This goes to “should” rather than “could”, does it not?

MR GAME:   Yes, I think it does, your Honour.  Now, then in 1721 line 25 Mr James:

It is not the defence case and never was, that Dr Milton made an accurate diagnosis.

So he is eschewing, as it were, that there is any substance to be given to what Dr Milton said about the mental fitness of Mr Eastman.  Now, at page 1725 line 16 or 17 Justice von Doussa asks the question:

Do you put this on an alternative basis that either they were not brought to the judge’s attention because they had the effect on the accused that prevented him realising what was there and properly instructing his counsel and, indeed, changing his counsel on a regular basis?  Or alternatively if the counsel should have known of them counsel did not and misconducted the trial in a fundamental way?

We submit that that is the court opening up, as it were, the suggestion that there are larger questions and nothing was said.  It is not taken up.  It is not taken up as a ground of appeal.  It is not taken up as a submission.  What goes on is Justice Cooper then says, “But you have got a problem, which is you do not accept the contents of the material.”  Justice Cooper at the top of 1726:

or that it was a proper diagnosis.

MR JAMES:   We do not accept the diagnosis.

And then Justice Cooper says, “Well, why couldn’t counsel have applied for a stay of the trial at the trial?”  That is in the middle of the page.  Mr James says, “Well, yes, he could.”  Now, incidentally Mr Terracini was at court.  He never gave evidence, but to the knowledge of the Federal Court he was at court, as it were, if somebody was going to call him to give evidence and he was never called in the Federal Court and the conduct of counsel was never raised as a ground.  Then Justice von Doussa at 1727 line 10:

But just before we get there the discussion we have indicates that there is possibly a question lurking here about the way in which the trial was conducted and upon that, Mr James, we have not got a great deal of evidence, have we?

MR JAMES:   I cannot go further than the transcript,

So that, we say, is Justice von Doussa asking the parties, “Do you want to make this a bigger ground than you are making it?  Do you want to attack the conduct of counsel at trial?”, a question lurking, and nothing is said about it.  Then at page 1729, line 10, Justice O’Loughlin said:

Well, on that basis, surely your point has got to be manner of conduct of the defence at trial.

So that is yet again another judge raising this.  Then it goes on:

They were marked for identification.

Then Justice Von Doussa says:

But that does not mean to say the judge reads them.

MR JAMES:  Exactly.

At the top of 1730:

VON DOUSSA J:  Well, indeed, it would probably be quite inappropriate or improper to use them, even if he had read them, unless he was invited to do so.

Then Mr James said it “would not have been available”, and then:

VON DOUSSA J:  Or for any other purpose –

MR JAMES:  Or for any other purpose.  And, indeed, in the condition in which they were provided to counsel one can well see the problem even on a voir dire.

We submit the next line is an important one:

VON DOUSSA J:  Well, I am not sure that I can at the moment, Mr James.  I am sorry.

What that means is if counsel wanted to raise it he could have raised it discretely as a problem before the trial judge.  It would not have prejudiced the trial if he wanted to raise - would not have introduced his client’s mental state into the trial proper.  In the context of a discussion between presiding judge and counsel that is a very significant question, in our submission, or very significant observation.  Then, on page 1732 line 12:

COOPER J:  ‑ ‑ ‑ either to the jury or to the judge because you wished the trial – or those representing Mr Eastman – to be conducted on a particular basis as to his mental state.

MR JAMES:  Yes, that is right.

GAUDRON J:   Can I take you back to 1730, the middle of the page, line 21:

the report of 3 August deals amongst other things with the changes in representation and his ability to act for himself when the surveillance is withdrawn.

What is that about?

MR GAME:   What happened was - Dr Milton’s theory was that he would get upset when the surveillance was withdrawn and he could not manage himself, and that his behaviour was much more predictable and sound when he was being watched.

GLEESON CJ:   But that went directly to ground 13, did it not?

MR GAME:   Yes.

GLEESON CJ:   Ground 13 was a ground of appeal to the effect that as a consequence of harassment involving surveillance by the police his mental state was such, or became such, that he was unable properly to defend himself.

MR GAME:   The short answer - there were two short answers to the point ‑ was the reaction depended on the diagnosis.  That was the first response.  The second response was that the surveillance was lifted two years before the trial, and there was no evidence before the court in relation to this condition at the trial.  The Federal Court specifically said so in the passages, whether or not they have been specifically read - you have been taken to those particular pages already, I think it is page 49.

GLEESON CJ:   But there was an issue, in a ground of appeal, about his mental state; it is just not the issue that is being raised now.

MR GAME:   Yes, that is right, and there was an issue about his conduct.  Indeed, I have referred to them in the written submissions.  During the course of the appeal I produced an entire separate set of submissions of some four or five pages about his conduct, which were put in as supplementary submissions.  So those two things were openly litigated during the appeal.

GLEESON CJ:   Can I bring you now to these matters of this Court’s procedure.

MR GAME:   Yes.

GLEESON CJ:   Do you have available to you the transcript of the proceedings on 25 March 1999?  I am going to ask the same question of Mr Jackson.

MR GAME:   Yes, I do.

GLEESON CJ:   Could I ask you to read what appears at the bottom of page 12 and the top of page 13, which is the background to a question I am going to ask you.

MR GAME:   I have a computer print out of it.  Is there something that your Honour could tell me that would ‑ ‑ ‑

GUMMOW J:   A line number.

GLEESON CJ:   Yes, line 435.  I will hand you down my copy.

MR GAME:   Sorry, your Honour.  Yes.

GLEESON CJ:   The question I want to ask you is this:  as I understand it, you took the position earlier, and still take the position, that in the event that the Court should come to the view that, notwithstanding Mickelberg, the evidence of Dr White was admissible in this application for special leave to appeal, you would desire to press an argument as to the form of that evidence and, if that argument were unsuccessful, you would desire to cross-examine a witness? 

MR GAME:   Yes.

GLEESON CJ:   Let it be assumed that the Court, either unanimously or by a majority, came to the conclusion that Mickelberg was an obstacle to the reception of the evidence of Dr White.  In that case your problems as to form and to cross-examination would not arise.

MR GAME:   That is correct.

GLEESON CJ:   If the Court were to come to that conclusion, then, subject to the matter about which we have been hearing argument today, is there any other issue that would require to be determined?

MR GAME:   Not from the respondent’s point of view.

GLEESON CJ:   And if the Court came to the view that Mickelberg was an obstacle to the reception of the evidence of Dr White and that either the first or second limb of the question in the Registrar’s letter should be answered in the negative, what would the order that the Court should then make?

MR GAME:   Special leave refused.

GLEESON CJ:   If, however, on the assumption that Mickelberg was an obstacle to the reception of Dr White’s evidence, the Court came to the view that both the first and second limbs of the question should be answered in the affirmative, what would be the proper order for the Court to make?

MR GAME:   Well, it would be special leave granted, appeal upheld, remit.

GUMMOW J:   And?

MR GAME:   Remit the appeal to the ‑ ‑ ‑

HAYNE J:   Well, set aside the order of the Full Court.

MR GAME:   Yes.

GLEESON CJ:   And remit the matter to the Full Court for the further hearing of the appeal to that court from Acting Justice Carruthers.

MR GAME:   Yes.

GLEESON CJ:   Thank you.

KIRBY J:   But given that the ‑ ‑ ‑

MR GAME:   Could I show this to Mr Jackson?

GLEESON CJ:   Yes, of course.

MR GAME:   I think Mr Graham wished to be heard on this.  Could I just – I am sorry, could ‑ ‑ ‑

KIRBY J:   Yes, but I would like to ask you some questions before Mr Graham is heard.  Given that we have heard so much argument today on the question of the way in which to approach the problem of an ex post suggestion that something which through no fault of the trial judge or the Full Court has not been missed but the matter still being alive has been picked up by the time the matter is in this Court, given the point that Justice McHugh read from Frith where 200 years ago the courts were flexible enough to, as it were, devise a new procedure for dealing with an issue, given that in Mickelberg there was a dissenting opinion, at least one, Justice Deane, and given that the precise issue of the validity of the proceedings and the way in which that matter can be raise before the Court in an appeal which is validly before it has not been determined, could you seriously argue that those matters, leave aside all the other issues we have debated today, are not matters for special leave to appeal to be granted and explored in the Court?

MR GAME:   Does your Honour mean specifically the questions litigated today as opposed to the ‑ ‑ ‑

KIRBY J:   Both days.  It reached a certain point on the last occasion where the issue of Mickelberg was tendered by the objection which you took to the reading of the affidavit which annexed Dr White’s report, or to Dr White’s report as such.  Now, can it seriously be contested that the issue which is thereby tendered is not a matter of important general significance and that the constitutional question which is thereby tendered is not one which has not itself been previously determined by the Court which would warrant the grant of special leave so that it may be determined?

MR GAME:   Your Honour, with respect to the Mickelberg question, if the Court by a majority determined – we do not suggest that it is not a matter of general importance whether or not Mickelberg should be followed generally or in respect of this particular case, but if the Court came to the conclusion that Mickelberg should be followed or should not be overturned and applies to these circumstances ‑ ‑ ‑

GUMMOW J:   Or that leave should not be granted to reopen Mickelberg, to be precise.

MR GAME:   And leave should not be granted to reopen, and that would be the order of the Court.

KIRBY J:   That in turn assumes that the view in Evda is correct that leave is required for the reopening of matters of the Constitution, another matter upon which Justice Deane expressed a view which I happen to agree with.

GUMMOW J:   It happens not to be the rule of the Court.

GLEESON CJ:   But these are all ways of expressing a legal proposition.  The question that arose for determination was the admissibility of the evidence of Dr White.  There were a number of grounds on which it was argued to be inadmissible, but one of them had to do with Mickelberg.  That is why I framed my question by saying if the Court decided that by reason of Mickelberg the evidence of Dr White was inadmissible, then that is the end of the evidence of Dr White.

MR GAME:   Yes, that is the end of that aspect of the special leave application.

GLEESON CJ:   The evidence was tendered on this special leave application.  It was objected to and a decision has to be made whether it will be accepted or rejected.

MR GAME:   The ruling is ‑ ‑ ‑

GUMMOW J:   There is an ambiguity in all of that of course because evidence is often received on special leave applications to show there is a question of general importance.

GAUDRON J:   Yes, the question really is:  if the evidence would not be admitted on the appeal, then you would refuse special leave because that would be ‑ ‑ ‑

GUMMOW J:   Exactly.

MR GAME:   That was the point that I took which was ‑ ‑ ‑

GLEESON CJ:   The ground of objection that was based on Mickelberg was that it would be futile to allow the evidence on the special leave application because it would be inadmissible on an appeal.

GUMMOW J:   That is right.

MR GAME:   Yes, and that you could not ‑ ‑ ‑

KIRBY J:   I remember on the last occasion that Justice Callinan raised a question as to whether, even assuming that you put to one side for the moment the Mickelberg issue, that the report of Dr White is founded on premises of an evidentiary kind that had not been established.  That was raised on the last occasion.  Is that a point that you also take?

MR GAME:   Your Honour, what happened historically speaking is that in the proceedings after the Court consisting of Justice Gaudron and yourself determined to refer that application as a special leave application to the Full Court, there was a mention before Justice Gaudron in which it was determined in effect that the matter would go forward both to enable the applicant to, as it were, put forward his argument based on a revisiting of Mickelberg, us reserving our rights in respect of cross‑examination, but in the proceedings before Justice Gaudron and again on the March date last year, we specifically reserved to argue on the hearing on that occasion, and we did argue, the question of cogency.  That is to say, even if you got past Mickelberg, you would not go any further with this material because the material on its face did not pass the test of cogency required by Gallagher and Mickelberg and Ratten and so forth.

KIRBY J:   But might that not be, taking up Justice Gaudron’s point, on the application at least tended to be read as evidence on the application in order to show that there is a substantial question to be argued?

MR GAME:   Yes.

KIRBY J:   And then you run into the constitutional question of Mickelberg.

MR GAME:   That is correct, but the cogency question is an aspect of the principles relating to fresh evidence and we said that on the reports alone, without going further, even if you thought that either Mickelberg was not a hurdle to it or that Mickelberg would be reopened, that you would not grant special leave or proceed any further with the application on the basis that the material did not satisfy the test of cogency in Ratten and Gallagher.  Now, when one comes to the matters that have been litigated today, we do not question that those matters are matters of general importance but we submit that special leave should be refused because of the answers to those questions, that is to say neither the court could not have and should not have addressed itself to those issues and that the answer is very clear on an examination of the judgment, the transcript, the grounds of appeal and submissions that were put to it.

GLEESON CJ:   Well, we did in the Registrar’s letter ask that that matter be argued fully as if on appeal.

MR GAME:   Yes.  Well, your Honour, I think we took that to mean that we would have to argue that point fully as if ‑ ‑ ‑

GLEESON CJ:   Yes.

MR GAME:   Not that we would expect to come back on some other occasion and have another go.

GLEESON CJ:   Exactly, exactly, and I have assumed that both sides have approached the argument today on the assumption that they were complying with that request.

MR GAME:   Yes, but in the days before special leave in criminal appeal was – they were always argued like that and that the standard order might well be “special leave refused”, even although an appeal had been heard in full and both sides had put everything that they wished to put.

KIRBY J:   Or “special leave granted” because of the significance of the matter but “appeal dismissed”.

MR GAME:   Yes.  Now, if I could just take the Court to – I had one or two last references.  At page 173 ‑ ‑ ‑

GAUDRON J:   I am sorry, can I take you back when I had before you before.

MR GAME:   Yes.

GAUDRON J:   If you are back on the “should” question.

MR GAME:   Yes, your Honour.

GAUDRON J:   There seems to have been something that suggested that this man’s condition would deteriorate if surveillance was removed and you have told us that surveillance was removed.  Was there something before the Full Court that the surveillance was removed?

MR GAME:   Well, I would have to go back through ‑ ‑ ‑

GAUDRON J:   Yes.

MR GAME:   The court said that there was no evidence that there had been any surveillance for the last two years.

GAUDRON J:   The court said that?

MR GAME:   Yes.

GLEESON CJ:   Was not Sergeant Jackson cross‑examined about the duration of the surveillance?

MR GAME:   He may have been, your Honour.  I really cannot recall.

GAUDRON J:   And am I right in reading what appears there at page 1730 ‑ but obviously one will have to find the report and if you could find it out and give me a reference to it.  Am I correct in reading that as a suggestion that if his condition deteriorated there would be a question as to his ability to appear for himself in court, to act for himself?

MR GAME:   I will try and find that relevant passage, but his behaviour was – well, one can find it by turning up the report of 3 August, but there was definitely some material, as I recall.  He behaved worse when the surveillance was taken off, and I will just find that, your Honour.  It is in volume III.  The report of 3 August is on page 649.  In that report he says at page 650 line 40:

there was no evidence of him being delusional.

At page 651:

On a more sinister note, it is of concern that after five hours when surveillance failed, he seemed especially cheerful.  There is an obvious concern that he gained access to a weapon during this time.  Perhaps he is also cheerful because he has made up his mind to carry out an aggressive act.

That is not actually the bit I was looking for.  And then there is another bit at line 35:

He appears well in touch with reality, at least as he perceives it.  He is not delusional.

But if I catch the way which your Honour is thinking, I do not think ‑ ‑ ‑

GAUDRON J:   No, I do not understand that statement there.  You explained it to me.

MR GAME:   That is the way I recalled it, your Honour.

GAUDRON J:   That does not seem to be correct though, does it?

MR GAME:   I am sorry, your Honour, I thought that ‑ yes, your Honour.  If you look at the bottom of page 650, I think this might be what it was:

Surveillance is certainly something on which he can expend his suspicion and aggression with safety, and therefore the preoccupation with surveillance might have a certain satisfaction in it for him, notwithstanding any inconvenience or annoyance he feels from being subjected to it.

GAUDRON J:   But there is nothing there – his ability to act for himself when the surveillance is withdrawn is not there.

MR GAME:   No, I do not think so, your Honour.  He had not been charged at that stage, your Honour.

GAUDRON J:   And there were other proceedings running?

MR GAME:   There were other proceedings; this was certainly the case.  Just lastly, it is not quite lastly, but at page 1733, Justice Von Doussa said:

Just whilst we are on grounds 1, 11 and 13 and I think particularly 11 and 13, in relation to Dr Milton’s reports it is not really a fresh evidence ground that you are advancing, as I understand it; it is an abuse of process.

MR JAMES:  Yes, that is right and I said that, I think yesterday, and I think Cooper J picked me up directly on that this morning.

COOPER J:  Yes.

And then you see on page 1734 a reference to Mickelberg and Gallager; that is ground 10 and it concerns the ballistics.

Now, with respect to how Mr Adams addressed these submissions, there is quite a deal, but if I could just give your Honours one page reference, page 2045, it is certainly not all he said, and it is towards the end of what he said about it, but at page 2045 lines 23 and following:

Mr James now raises the submission that had this matter been available it would have justified a stay on the grounds of abusive process.

And when one reads, we would submit, what Mr Adams had to say, and the way in which the Federal Court ultimately ruled on it, it was clear that it was relied on in the sense in which it was put by Mr James, addressed by Mr Adams and then finally addressed by the Federal Court.

KIRBY J:   So, on the Mickelberg point, your submission is that if a point is not properly raised at trial and/or not properly raised in the Full Court, although it is before this Court, there is no way in the judicial branch of government that the issue of the validity of the trial by reference to the considerations of…..understand the proceedings, know what it is all about, can ever be passed upon by the judges of Australia.  It is over the Executive Government if it is to anybody.

MR GAME:   I am afraid so, your Honour, yes.  Sorry, section 475 is the – but can I say this, your Honour, there is another.  Grierson also has application here, which is that one cannot re‑open the orders of the Federal Court.  I might say that about five years ago in a case called Keogh I sought special leave for Mr Keogh to argue precisely the same points, and special leave was refused.

KIRBY J:   The same points about Mickelberg?

MR GAME:   Same points about Mickelberg; same points about Grierson.  It was a Bench consisting – Justice Brennan was presiding, and Justice Toohey, and I cannot recall who the third Judge was.

KIRBY J:   This was fresh in…..participation in Mickelberg.

MR GAME:   I have had a go at it and failed.

KIRBY J:   Well, just keep coming back to the courts. But, that is a serious consequence, that though we have for a century had courts of criminal appeal which can examine in the name of appeal cases of fresh evidence, that the word “appeal” in our Constitution has not taken on a different denotation in the course of that century, and that there is nothing the judicature can do; though let it be assumed it is discovered beyond argument that a person lacked competence, that there is some element that is discovered that is totally unarguable, the judicial branch of government in this Court, though the matter is still alive and an appeal is before the Court, the appeal is part of a process. There is nothing we can do. I would take a lot of persuasion to believe that that is so.

MR GAME:   In a way we have been through this before with respect to the ‑ ‑ ‑

KIRBY J:   But you say that that is the consequence of your argument.

MR GAME:   Yes, but can I just say this, and it may not be an adequate salvo, but section 475 brings about curial intervention.  It is not a matter for the Executive.  The Supreme Court of the ACT has to rule upon the application - the petition brought by the individual.  So, it is not something that cannot be examined ‑ ‑ ‑

KIRBY J:   That is as a petitioner in the new process, not in the concluding phase of the old process.

MR GAME:   Yes, quite.  Yes, that is so.

GLEESON CJ:   Thank you, Mr Game.  Yes, Mr Solicitor.

MR GRAHAM:   I am obliged to the Court.  What we would seek is to be excused from further participation in these proceedings.  Having heard the argument today we feel that we can contribute nothing beyond what we contributed on the previous occasion.

GLEESON CJ:   Yes, you have that, Mr Graham.  Yes, Mr Jackson.

MR JACKSON:   Perhaps I should first hand back your Honour the Chief Justice’s transcript.  We, your Honours, would answer the questions your Honour put to my learned friend in the same way but could I add this, that that would not completely dispose of the matter because there remain the contentions that on the material that was before the trial judge there was yet sufficient for the issue to arise before the Full Court.  That is an argument that we advanced earlier, and similarly, of course, an aspect of it ‑ ‑ ‑

GLEESON CJ:   I though that was caught up in the question that we were arguing today.  You seem to have been doing pretty well on the proposition that Dr Milton’s reports were material before the Full Court, but even if you had been wrong in that, I thought we were proceeding with the argument on the assumption that the material before the trial judge raised it.

MR JACKSON:   Yes, your Honour, the only reason that I mention it is that it was not raised as a discrete issue in the way in which your Honour put the issues to my learned friend, and, of course, the material before the Full Court also indicated another aspect, as it were, of Dr Milton’s reports and that is that although they may not have been before the trial judge they were, of course, in the possession of counsel for the Crown at the trial.

CALLINAN J:   Mr Jackson, the trial judge did not get them for the purposes of sentencing, either, did he?  Could you just let me know about that.

MR JACKSON:   I think your Honour is right.  I would have to check on the precise evidence that was there for the purpose of sentencing, and - may I check on that, your Honour – but, one sees with some surprise that perhaps that that was not so.

KIRBY J:   Could I ask you two little machinery questions?  The first relates to the point I raised with Mr Game and that is Justice Callinan raised on the last occasion the question of the objections to the report of Dr White, quite apart from the Mickelberg point, and the suggestion that it is a report with opinions founded on things that he has been told by others or told by Mr Eastman that are not in evidence.  Now, upon one view one could look at his report and if that objection is good or an objection of that kind is good you do not get to the Mickelberg point, you simply say there is no evidentiary foundation.  The Court said in Woodhams in the special leave application that if, in an application for special leave, you wished to refer to evidence outside the record you have to put that evidence in affidavit before the Court.  That has been given some wide currency in the journals.  You have not done that, and, therefore, why would we pay any attention to a report based upon foundations that have not been established in evidence?

MR JACKSON:   Your Honour, I do not recall exactly, but I rather suspect that events in the present case were anterior to the Court’s decision in Woodhams.

KIRBY J:   But the application for special leave is alive to this day.

MR JACKSON:   Oh, yes.

KIRBY J:   And I thought Justice Callinan had rather signalled on the last occasion that if you wished as a matter of evidence to rely on the report and the opinion, you have to establish the premises, and that no attempt has been made to do that.

CALLINAN J:   Particularly as I did not like - and I have given an indication of my reservations about the correctness of Mickelberg and my disposition, perhaps.

MR JACKSON:   Your Honour, that issue, I must say, I had thought was put to rest, as it were.

GLEESON CJ:   It was not put to rest, it was put to one side.  It was announced on page 13 of the transcript of 25 March at line 461 and 462 that we did “not expect today” to “proceed further to hear or deal with arguments concerning the admissibility of evidence”, apart from Mickelberg.

MR JACKSON:   Quite, your Honour, and I must say my understanding of that was that if the Court were –might I just start one stage before that, because your Honours will see in the part of the transcript immediately preceding the ruling that was given by the Court, a little further up the same page, that there had been some discussion about what had taken place in the directions hearing before Justice Gaudron and Her Honour said that there were three, that it was decided that the application was to be dealt with, and I have just forgotten the exact points, your Honours, (a), (b) and (c) were mentioned, and one of them being on the assumption of the cogency of the evidence.  That was a matter to be decided by the Court.  But so far as, your Honour, any further dealing with the matter would be concerned, we would have to, of course, if the Court were to take the matter further, adduce the material in proper form before the Court and, no doubt, any objection then remaining would have to be dealt with.

GLEESON CJ:   And there would be cross-examination.

MR JACKSON:   Indeed, your Honour.

GLEESON CJ:   The basis on which it was left was that if Dr White’s evidence was not rejected on the basis of Mickelberg, we would at a later occasion consider any issues about the form of that evidence and also give an opportunity for cross-examination on it.

MR JACKSON:   Yes.

KIRBY J:   So that matter remains alive and you would be asking that this Court, having passed the Mickelberg point, would on the first way in which you put your argument, come back on a later occasion to permit those issues to be dealt with?

MR JACKSON:   Yes, your Honour.

KIRBY J:   Can I ask you the second machinery question and it arises out of a question Justice Gaudron asked you this morning about, as it were, dividing the appeal.  Section 44 of the Judiciary Act talks of where a matter is “pending in the High Court”, that any part of such matter may be remitted by the High Court to a Federal Court. Now, is that a possibility? Is that a feasibility? It is not strictly legally a matter we have to resolve today, but it would settle an anxiety about the prospect that the Court was resolving an issue under the Constitution which could have very significant practical consequences.

MR JACKSON:   Your Honour is referring to section 44?

KIRBY J:   Section 44 is remittal, is it not?

MR JACKSON:   Yes.

KIRBY J:   Could one remit part of the matter being the special leave application?  Is that a question that could be remitted or the determination or findings of fact or taking of evidence?  Is that, in your submission, something which could be remitted to the Federal Court?  If you would rather deal with that in a note, that could perhaps be done later.

MR JACKSON:   Your Honour, there is a ‑ ‑ ‑

KIRBY J:   It is a couple of stations removed but I would like to consider it.

MR JACKSON:   The term that –I seem to have argued, I think, your Honour, something about this point once before here, unsuccessfully I think – but the term “matter”, of course, is defined in section 2.  It is said to include “any proceeding in a Court”.  Your Honour, it is a question, I suppose, whether the term “matter” in section 44(1) includes appeals.

GAUDRON J:   Includes what?

MR JACKSON:   Appeals, your Honour.

GAUDRON J:   Well, there may be a question whether it concerns a special leave application too ‑ ‑ ‑

MR JACKSON:   Yes.

GAUDRON J:   ‑ ‑ ‑ because on one view, if you got past the Mickelberg hurdle, and as I thought I gave directions but I may be wrong about this, you still would not have got special leave on the agreed basis that you were dealing with because there was then the cogency issue.

MR JACKSON:   Yes.

GAUDRON J:   So that would then have to be resolved, as I understand it, although I daresay it is not immutable in concrete, before you got special leave, on one view.

MR JACKSON:   Yes.  Yes, your Honour, no doubt it would be possible for the Court to deal with it in two ways:  one to say that sufficient had been shown to merit the grant of special leave in those circumstances but that the appeal itself was something further to be dealt with by the Court would not.  That would be one way to deal with it, but, your Honour, it is not an easy question.  Perhaps if I could give your Honour a note about it because it does require some further consideration, I think.  Your Honour, it is a tempting solution, your Honour, but I have expressed some perhaps doubt about it.

Your Honours, so far as the position in the Federal Court is concerned, could we say two things in relation to what things the Federal Court might do.  If one goes first of all to section 27(d) of the Federal Court Act, your Honours will see that section 27 is the provision that allows further evidence and section 27(d) refers to one of the means by which evidence may be taken and that is “otherwise in accordance with section 46”.  If one goes to section 46 of the Act, the court is empowered to:

order the examination of a person upon oath before the Court –

and has other powers.  Your Honours, one of the things that the court could do in relation to the evidence, say, of Dr Milton would be to direct that he be examined before the court.

McHUGH J:   But why and how, given the legislative intention shown by sections 428E and so on?  Do they not show a legislative intention that all these questions about fitness to plead are, at least in the first instance, to be determined by the Tribunal?

MR JACKSON:   Indeed they do.  They show exactly that, that in the first instance ‑ ‑ ‑

McHUGH J:   Does that mean that you have to make good the point that the court, having seen the transcript and perhaps Dr Milton’s reports, was then required to set aside the conviction?  Is there any other way out for you?

MR JACKSON:   No, your Honour, I accept that.  All I am endeavouring to do is simply to deal with the question raised, I think, by your Honour the Chief Justice:  what can the Full Court do in real terms in examining it?  If looking at Dr Milton’s reports the Federal Court was of the view that there was a question that arose from those about the fitness to plead but wanted to obtain further information about that issue to see whether it should take any course in circumstances where, let us assume, neither counsel for the Crown nor counsel for the accused wanted to do anything, all I am simply saying is that one of the courses – and I will come to another one in a moment – was to require Dr Milton to come before the court where the court could have said “What’s your view?  Is this still your view?” and so on.

Now, that is one course, your Honour.  The other course is - and the result of that may well be if he expressed the view – he might say of course he is not fit to plead, never was.  He might say something else.  But, if he said that then the court would be entitled to take the view that the conviction should be set aside and then the matter would proceed, if he was to be dealt with further, in accordance with section 428E.

McHUGH J:   But on what theory would the court set aside the conviction?

MR JACKSON:   It would set aside the conviction because one of the conditions ‑ ‑ ‑

McHUGH J:   Because on the evidence that was now before it, it thought he was not fit to plead, or because the trial judge erred in some way?

MR JACKSON:   Well, it could do it on either, your Honour, but the lesser of them would be sufficient, and that is the second one your Honour put to me.

GAUDRON J:   Or simply because there was a miscarriage of justice ‑ ‑ ‑

MR JACKSON:   That would be why there was one.

GAUDRON J:   ‑ ‑ ‑is another way of putting it which has at least been extended to the situation in which the trial judge did not err, because the point was not taken, and at least cover certain points that had not taken and therefore it cannot properly be said that the trial judge erred.

MR JACKSON:   Yes, your Honour, that can happen.  If one takes a very simple case where in a particular jurisdiction a person who is under the age of say 15 can only be tried in a juvenile court and not by a judge or jury, and if it emerged at hearing in the appeal, for example by a birth certificate or something, that the person who had been convicted was in fact under that age at the time of conviction.  Your Honours, that is something in which there may be no error on the part of the judge at all.  No suggestion of the right age not being one within jurisdiction, but that is something that could be dealt with on appeal.  The other thing I was going to say was that in the Federal Court ‑ ‑ ‑

McHUGH J:   But that assumes there is a ground of appeal, does it not?  Supposing they refused to argue the ground on appeal.  In the case in 181 CLR, Kesavarajah, or whatever its name is, there was a ground of appeal in the Court of Criminal Appeal in Victoria.

MR JACKSON:   Yes, your Honour.

McHUGH J:   But supposing there had never been a ground of appeal?

MR JACKSON:   Well, your Honour, assume in the case I was positing that it emerged from the documents in the case that there was material which showed that the person was under the age – assume it was a birth certificate.  No one had ever taken any point about the jurisdiction of the court at the trial.  Surely the appeal court would be entitled to say there is a document which has some evidential effect depending on relevant statute, and that demonstrates there was no jurisdiction.  We are obliged to say there was no jurisdiction.

McHUGH J:   I am not sure that that is the question.  If counsel refused to argue it, nobody wants to argue it, does the court itself just simply say of its own motion, “We’re setting aside this conviction”?

MR JACKSON:   Well, your Honour, in our submission the court could.

McHUGH J:   In this area, in particular – I mean, according to anecdotal evidence of the New South Wales Bar when I first came to it in the days of the death penalty, people would not raise defence of manslaughter; they preferred to fight cases on murder or nothing because they regarded themselves as having a greater chance of acquittal.  It was a courageous action but apparently ‑ ‑ ‑

GAUDRON J:   Hence the rule that a judge had to tell the jury what other defences were open, even though not taken perhaps.

McHUGH J:   But supposing counsel then on appeal did not want to take the point?  The judge does not put it to the jury and on appeal the accused says, “I don’t want that point taken.  I don’t want to spend 20 years in Long Bay.  If I’m going to be hung I’m going to be hung”.

MR JACKSON:   It depends, your Honour.  It depends on the nature of the point, but that is why in our submissions earlier this morning I was seeking to say that it is very difficult to deal with these things entirely in the abstract because the course that can and should be taken depends on the nature of the respect in which the trial is said to have miscarried.  If one is talking about something that relates to the mental condition of the accused and the ability to make choices of the kind to which your Honour has referred, then that is different from the situation obtaining in relation to other matters.

The only other matter to which I wished to refer was this, that it is right of course to say that the starting point is section 428E and that is the regime, but of course what one sees is that the appeal is an appeal to the Federal Court and then one has to deal with the position of the Federal Court.  It is as much relevantly part of the structure as the court of first instance.  I wanted to refer particularly to the fact that if the court of its own motion took the view that there was material which, prima facie, raised the question of the ability to plead but neither party sought to make any point about it, the Court would seem to have power itself to appoint a court expert on the issue under Order 34 of the Federal Court Rules.  Order 34 provides for court experts, Order 34A for other expert witnesses, and it empowers the court – this is Order 34, rule 2:

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 –

Then it has got provision for the usual provision one might expect.

GAUDRON J:   What question would the expert be asked?  This may be of some importance to my thinking.

MR JACKSON:   Yes, your Honour, yes. Your Honour, the expert would be authorised, if I could pick up the words of Order 34 rule 2(1)(b) “to inquire into and report upon” and then the words of the rule say “any facts relevant to his inquiry” and the facts relevant to the inquiry would be whether, in terms of section 68(3) of the Mental Health Act – and, your Honours, I am abbreviating the terms of it – the appellant in that court was, if I put it alternative ways, first, fit to plead at his trial ‑ ‑ ‑

GAUDRON J:   And unless that could be answered affirmatively “yes”, you would say - - -?

MR JACKSON:   In that case, your Honour, one comes to the second way and the court would then, bearing in mind that report, have to decide whether the circumstances were such that it felt there had been a miscarriage of justice.

McHUGH J:   Well, that seems to turn – the Court’s power under Order 34 enables it to disregard the legislative scheme which has made the Tribunal of the Australian Capital Territory the repository of such decisions.

MR JACKSON:   Well, your Honour – I am sorry, your Honour, because the result would be, one would expect – and, your Honour, this is why the legislative scheme encompasses two bodies ‑ one is the Supreme Court and one is the Federal Court on appeal – and the result of the Federal Court’s participation in it, if it adopted this course, would simply be that the conviction would be set aside on that ground on the ground there had not been an inquiry under section 428E in circumstances where there should have been one.

GAUDRON J:   Well, why then, having regard to what you now say is the question, did this material or does this material raise in your mind a question whether he was fit to plead such that that question should have been determined?

MR JACKSON:   Well, your Honour, it does because – and I think, your Honour, we said earlier we would give the Court a document endeavouring to tie up the various parts of Dr Milton’s reports to section 68(3), but because, in our submission, it showed that the manifestations of his underlying mental disorder were such that he was incapable of doing with any proper appreciation the various things that were contemplated by the concept in section 68(3).

McHUGH J:   Supposing an application had been made at the trial and the judge had refused the application and he put on a ground of appeal and you led evidence to indicate that more probable than not that the Tribunal would have found him unfit to plead, would you not have to make out such a case to have the conviction set aside?

MR JACKSON:   I am sorry, your Honour, make out - - -?

McHUGH J:   Would you not have to make that case out?  I mean, if there had been an application before the judge and he said, “No, there is no evidence before me sufficient to refer the matter to the tribunal”, and then you put on a ground of appeal, what would you have to prove to have the conviction set aside?

MR JACKSON:   Well, your Honour, what we would have to demonstrate, in our submission, was that there was a real and substantial question which arose as to the accused’s fitness to be tried.  The words your Honours ‑ ‑ ‑

McHUGH J:   Why?  The judge has made a decision.  Surely, you would have to show that the judge was wrong in his decision? 

MR JACKSON:   Your Honour, could I just say that the words I use to describe the test are not mine.  They came from the test adopted by the Victorian Full Court, a case to which reference was made earlier, R v  ‑ ‑ ‑

McHUGH J:   But that is a common law case, is it not?  We are dealing with a statutory scheme which commences, “Where, on the trial of a person”.

MR JACKSON:   Yes, of course, your Honour, and what it says is that the issue of fitness to plead is raised and, your Honour, the requirement is no more than that the Court is satisfied that there is a question as to the person’s fitness to plead to the  ‑ ‑ ‑

McHUGH J:   It is the court that must be satisfied.

MR JACKSON:   Of course, your Honour.

McHUGH J:   It is its state of mind that has to be proven to be wrong. 

MR JACKSON:   Yes but, your Honour, what one is looking at is the question of whether the court was wrong in taking the view that there was not a question as to the person’s fitness to plead to the charge.

McHUGH J:   No, an error would be whether the court was satisfied.  We have made that plain in some of the migration cases.

MR JACKSON:   I am sorry, your Honour.

McHUGH J:   We have made that plain in terms of the Minister’s satisfaction in respect of the migration cases.  You would have to show that the judge had erred in terms of satisfaction.  The judge should have been satisfied that there was a question.

MR JACKSON:   Your Honour, in a sense, one is running together two things.  One is the satisfaction part, and the second is what the judge has to be satisfied.  Your Honour, I am not suggesting that we would not have to demonstrate that the judge was wrong, leaving aside any additional evidence.  I am not suggesting that one would not, if one were looking only at the material that was before the primary judge, have to show that there was an error in the judge in not being satisfied, but it is a question of ‑ ‑ ‑

McHUGH J:   But you cannot be better off if you do not take the point anywhere.  You then have to show, on the evidence that was before the Full Court, that it should have been of the opinion that the judge should have been satisfied that there was a question.

MR JACKSON:   Yes, quite, your Honour, of course, I accept that, but it is a question of the content of what he has to be satisfied of.  If what your Honour is putting to me is that you would have to show that the judge was wrong in the sense that one has to show that the person was not fit to plead to the charge as a fact in the Full Court, then we would submit that is doing the thing that your Honour was adverting to before, giving the Full Court the function under section 428E.

McHUGH J:   Yes.

MR JACKSON:   Your Honour, could I, in relation to what your Honour was putting to me earlier, refer to Reg v Khallouf (1981) VR 360. The particular passage to which I was referring is at lines 35 to 45, and then on page 364 at lines 20 to 40.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honours, I am sorry, time has gone, but may I say one thing by way of conclusion, and that is that our learned friend at a point

said something to the effect that the appellate review does not involve consideration of fitness to plead.  I do not think my learned friend intended to go quite as far as that, but, of course, one has cases, such as Podola and other cases to which we have referred, in which that issue is one which can be the subject of appeal.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter.

AT 4.34 PM THE MATTER WAS ADJOURNED