Egan v JG
[2010] ACTSC 53
•18 JUNE 2010
HUMAN RIGHTS ACT
KRISTEN EGAN, JOHN HAWKINS AND ALEXANDER BURR v JG
[2010] ACTSC 53 (18 JUNE 2010)
CRIMINAL LAW – appeal from Magistrates Court of the ACT – section 208 Magistrates Court Act 1930 (ACT) – young person, fitness to plead investigation – section 311 Crimes Act 1900 (ACT).
CRIMINAL LAW – confusion regarding proceedings before the court - lack of investigation by court of young person fitness to plead at first instance – miscarry of process.
CRIMINAL LAW – appeal against finding that young person unfit to plead - grounds of appeal: admission of mental health report, no opportunity for cross examination of the report, error finding young person unfit to plead, flawed mental health report.
CRIMINAL LAW – childrens’ proceedings – offence to publish identifying information about childrens’ proceedings - section 712A Criminal Code 2002 (ACT).
Crimes Act 1900 (ACT), ss 311, 311(2), 314(1), s315A, 315A(1)(a), 315A(1)(b)(ii), 315A(1)(b)(iii), 315C, 316(1), 316(8), Div 13.2
ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT), pt 1.38
Magistrates Court Act 1930 (ACT), Pt 3.10, ss 208(1)(a), 287
Evidence Act 1995 (Cth), ss 8(4)(b), 29, 41, 190, 190(2)
Human Rights Act 2004 (ACT), s 21
Mental Health (Treatment and Care) Act 1994 (ACT), explanatory memorandum, s 68
Criminal Justice Act 1954 (NZ), s 39A
Crimes Amendment Act 2005 (ACT), explanatory statement
Criminal Code 2002 (ACT), s 712A
Birgdin A and Thomson D, “The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment Procedure Involving Mental Health Professionals and Lawyers” (1999) 6 Psychiatry Psychology and Law 207
Ierace M, Intellectual Disability: A Manual for Criminal Lawyer (Redfern Legal Centre Publishing: Sydney, 1989)
Grubin D, “What Constitutes Fitness to Plead?” [1993] Crim LR 748
Freckleton, I “Rationality and Flexibility in Assessment of Fitness to Stand Trial” (1996) 19 International Journal of Law and Psychiatry, 39
R v Griffith [2008] ACTSC 77
R v Steurer (2009) 3 ACTLR 272
Campbell v Fortey (1987) 85 FLR 462
Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149
Stead v State Government Insurance Commission (1986) 161 CLR 141
R v P (1991) 105 FLR 12
R v Khallouf [1981] VR 360
R v Forrester (1982) 31 SASR 312
Official Solicitor to the Supreme Court v K & Anor [1965] AC 201
The Queen v Commonwealth Conciliation and Arbitration Commission & Ors; Ex parte The Angliss Group (1969) 122 CLR 546
McClymont v The Owners of Strata Plan No 12139 (2009) 74 NSWLR 404
Wakeley and Bartling v The Queen (1990) 93 ALR 79
Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284
Eastman v The Queen (2000) 203 CLR 1
R v Taylor (1992) 77 CCC (3d) 551
R v Miller (No 2) [2000] SASC 152
R v Polanski [1999] NSWSC 433
R v T (2000) 109 A Crim R 559
R v McKitterick (2004) 36 SR(WA) 115
R v Dunne [2001] WASC 263
Ngatayi v The Queen (1980) 147 CLR 1
Mantell v Molyneux (2006) 68 NSWLR 46
R v Smith [2008] NSWDC 23
R v Carrel [1992] 1 NZLR 760
R v House [1986] 2 Qd R 415
R v Dunne [2002] WASC 196
Wills v The Queen (2007) 173 A Crim R 208
R v Holt [2009] NSWDC 147
ON APPEAL FROM A DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 25 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 18 June 2010
IN THE SUPREME COURT OF THE )
) No. SCA 25 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM A DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KRISTEN EGAN, JOHN HAWKINS AND ALEXANDER BURR
Appellants
AND:J G
Respondent
ORDER
Judge: Refshauge J
Date: 3 June 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The ruling of the Learned Magistrate that the respondent, JG, is unfit to plead and is unlikely to be come fit to plead within the next twelve months be set aside.
The question reserved for investigation about the fitness to plead of JG be remitted to the Childrens Court for hearing as soon as practicable after the publication of the reasons for this decision.
On 3 June 2010, I made orders upholding this appeal, setting aside the orders of the Learned Magistrate and remitting the matter to the Childrens Court to be dealt with in accordance with these reasons. I was unable then to publish my reasons. These are those reasons.
This appeal is from the Childrens Court and, it is one which, regrettably, justifies some criticism of the criminal justice system. All the participants in the proceedings in the Childrens Court on 19 March 2010 were unable to avoid what should have been an unnecessary appeal. However, it now comes before me with the attendant delay and stress to the respondent, a young person, to whom the community has a special duty requiring it to deal with him in a way that is sensitive to his statutorily recognised minority and his vulnerability, because he is, it appears, someone with an intellectual disability.
That he is alleged to have committed a number of criminal offences, including relatively serious ones such as burglary, does not deny him the entitlement to be dealt with accordingly without avoidable stress and delay. If he has to be punished for those offences because he committed them, he should be punished, but through a proper and fair process.
It appears that he relevantly first came before the court on 21 September 2009 in response to certain summonses on information for some driving offences. The proceedings were adjourned to 12 October 2009. On that day, the bench sheet records that a “fitness to plead assessment” was requested. I assume that this request was made under s 315A(1)(b)(ii) of the Crimes Act 1900 (ACT) (the Crimes Act) and followed a finding under s 314(1) of the Crimes Act that the court was “satisfied that there is a real and substantial question about the defendant’s fitness to plead”. That assumption can safely be made because the requirement for examination is predicated on the court reserving the matter of the respondent’s fitness to plead for investigation which, in turn, is predicated on the court’s satisfaction that there is a real and substantial question about the respondent’s fitness to plead: R v Griffith [2008] ACTSC 77 (at [8]).
The issue of the respondent’s fitness to plead had apparently been before the Childrens Court a year or so previously, but I assume not in relation to these charges.
On that occasion, a report from Dr John Kasinathan dated 13 October 2008 had been prepared for the Childrens Court on 20 October 2008 in respect of a charge of taking a motor vehicle without authority. That report had expressed the opinion that the respondent was not then fit to plead. I do not know what, if any, finding was then made, though it would be difficult, after reading the report, to accept that any finding other than that the respondent was unfit to plead would have been made. This report was included in the appeal papers, presumably as an attachment to the report referred to at [7] below. I do not know and it does not appear anyone could tell me whether the prosecutor in the Childrens Court saw a copy of Dr Kasinathan’s report at the hearing from which this appeal comes.
The Course of the Proceedings
Apparently, under the order of Magistrate Dingwall made on 12 October 2009, a report dated 24 February 2010 was prepared by Ms Jacinta Marsh, a psychologist with Forensic Services, Mental Health ACT.
Unaccountably, the report was directed to the President of the ACT Mental Health Tribunal. That Tribunal had been replaced by the ACT Civil and Administrative Tribunal as from 2 February 2009 (pt 1.38 ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT)), though it had, at a much earlier time, been charged with determining the fitness to plead of defendants and accused persons. Unfitness to plead is now to be determined by a court, either the Magistrates Court (which I assume, because of s 287 of the Magistrates Court Act 1930 (ACT), includes the Childrens Court) or the Supreme Court: s 315A of the Crimes Act.
The proceedings were again before the Court on 4 March 2010, but it does not appear that any matter relevant to this appeal then occurred, though it is then that they were adjourned to 19 March 2010.
When the matter returned to the Childrens Court on 19 March 2010, there seemed to be confusion as to what proceedings were before the court. The respondent’s counsel stated, “I understand that ... we’re supposed to be having a special hearing today”.
A special hearing is a hearing of a criminal charge where a person has been found unfit to plead, such hearing is to be conducted as quickly as possible as if it were an ordinary trial: ss 315C and 316(1) of the Crimes Act; R v Steurer (2009) 3 ACTLR 272 (at 280 [32]). If the matter was to be listed for a special hearing, the proceedings would ordinarily be required to be listed in court for a hearing and not a mention, as if the charge or charges were to be defended in the ordinary way.
The Learned Magistrate clearly did not understand this to be the reason the matter was before the Court, for she assented to the proposition that the matter was “just for mention” adding “there’s a range of charges on which no pleas have been entered and, in fact, no way forward has been indicated ...”
In one sense, the question of the entry of a plea as referred to by the Learned Magistrate is irrelevant, for by s 316(8) of the Crimes Act, a defendant found unfit to plead “is taken to have pleaded not guilty in respect of the offence charged”. Thus, ordinarily a plea would not be taken before determination of the question of fitness to plead, for perhaps obvious reasons. In any event, it does not appear that any finding as to the respondent’s unfitness to plead had been made in these proceedings at that date. This should have been known to the respondent’s counsel.
There were, therefore, at least two misconceptions by the respondent’s counsel: the respondent had not been found unfit to plead as appears to have been assumed by her and so no special hearing could be considered and, further, the time allocated by the Court that day was not what would have been allocated for a special hearing, as she had thought.
The respondent’s counsel stated that the respondent had “previously been deemed (sic) not fit to plead”. While that may have been so in relation to previous proceedings (see [5]-[6] above), a finding does need to be made in respect of each proceeding. Subject to what I say (at [40]) below, an earlier finding in other proceedings may be persuasive, but it is not determinative of the issue in subsequent proceedings though it may change the approach to be taken.
Counsel then referred to a Forensic Mental Health Report, presumably that of Ms Marsh (see [7] above). The Learned Magistrate stated that “the question of fitness to plead hasn’t even been reserved in accordance with the legislation yet”. That does not appear to have been correct because of what Magistrate Dingwall had done on 12 October 2009 (see [4] above).
The proceedings were then briefly adjourned and, on resumption, the respondent’s counsel pressed for a finding that the respondent was unfit to plead so that a special hearing could be listed and that, in the meantime, he be granted bail. He had, it appears, been in custody since at least 4 March 2010 when he had been arrested on a large number of the additional offences he was then facing. These included offences of burglary, theft, dishonestly riding in a motor vehicle and damage to property.
The issue of bail then appears to have taken the attention of the Learned Magistrate and the respondent’s counsel, even though it had, strictly, to be subsidiary to the issue that the respondent’s counsel was seeking to be address. The proceedings, however, came back to the issue when the respondent’s counsel then said:
One thing is the Forensic Mental Health Report says that the young person’s not fit to plead, so I’m asking you to set down a date for a special hearing.
That might be said to be a bold submission by the respondent’s counsel. While, of course, the court will pay due respect to such a report, that it asserts the respondent’s unfitness to plead does not dispose of the matter. It is the responsibility of the court to make that finding upon investigation and, inter alia, to hear any evidence or submission that prosecution (or defence) may put to the court: s 315A(1)(a) of the Crimes Act.
The Learned Magistrate noted that she had not read the Report and it was then suggested that there be a break for about 20 minutes to allow her to do so.
Before the break, however, the Learned Magistrate addressed the prosecutor and said “[a]nd I don’t know what your attitude will be ...”. The prosecutor commenced an answer, but before saying anything of substance was asked by the Learned Magistrate “[h]as there been notice of a bail application?” and the subject of the prosecution’s attitude to the question of fitness to plead was not further pursued with or by her at that stage.
The prosecutor did, however, later state that she did not have a copy of the Forensic Mental Health Report. A copy was given to her and the court adjourned for fifty minutes. I assume it was Ms Marsh’s report. I do not know whether it included Dr Kasinathan’s report.
When the court resumed, the Learned Magistrate said:
HER HONOUR: I’m sorry, [appellant’s counsel], but we were told that that was a short application for an adjournment. All right, having read the Forensic Mental Health Report, and unless you want to make any submissions to the contrary, I don’t have any difficulty in finding [the respondent] not fit to plead, and that he’s unlikely to become fit within the next 12 months. That then leave (sic) two issues; the first is how we proceed. Whether the matter proceeds as a special hearing in this jurisdiction or whether it needs to go to the Supreme Court, and the issue of bail. So I’m assuming that what would be appropriate is to put it over for a case management hearing to sort those issue out, because if it goes to the Supreme Court then it can be done on the papers, otherwise we need to work out how to do the special hearing.
The Learned Magistrate then turned immediately to the question of bail and the prosecutor called the first appellant to give evidence. Submissions on that issue were made and ultimately, the Learned Magistrate refused bail.
I have detailed the course of the proceedings at some length because this is at the heart of this appeal which in part is dependent upon the course of the proceedings.
Jurisdiction
This appeal is brought under Pt 3.10 of the Magistrates Court Act 1930 (ACT). In particular, s 208(1)(a) gives the appellants authority to commence the appeal.
Such an appeal is by way of rehearing: Campbell v Fortey (1987) 85 FLR 462 (at 464-5). In Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149. I describe (at [78]) such an appeal as,
one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In this case, the issue was not so much an error of substantive law, but rather that the hearing below miscarried because the appellants were denied natural justice. The principles in such a case are set out by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 where the court said (at 145):
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55, at p 67], in these terms:
There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
The appeal
The informants for the charges laid against the respondent in the Childrens Court have now appealed against the finding, reported at [23] above, that the respondent was unfit to plead.
The grounds of the appeal are:
(a)That her Honour made an error of law in her application of 311 Crimes Act 1900;
(b)That her Honour failed to consider all relevant considerations;
(c)That her Honour erred in finding that there was a real and substantial question about the defendant’s fitness to plead;
(d)That her Honour erred in failing to hear relevant submissions in relation to the respondent’s fitness.
The appellants sought the following orders:
(a) That the decision be set aside;
(b) That the matter be remitted to the Magistrates Court.
As happens from time to time, however, the grounds of appeal did not precisely encapsulate the real thrust of the appellant’s arguments. These were that:
(i) the report was admitted without the consent of the prosecution;
(ii) no opportunity was given for cross-examination or submissions on the report; and
(iii) the report was flawed.
These broadly address grounds (a), (b) and (d) in the grounds of appeal.
Ground (c) was addressed in written submissions but, hardly referred to in oral argument. It can be disposed of shortly. In written submissions, it was noted that the original finding that there was a real and substantial question about the respondent’s fitness to plead was made in the proceedings which were before the Childrens Court on 12 October 2009, but that no finding had been made in respect of the additional 14 charges laid since then and which came before the court for the first time on 4 March 2010. No finding was then formally made, though the various charges were all thereafter heard together.
It is strictly true, as a matter of logic, that no finding had been made on those additional charges, but it seems to me that it fails to address the reality that this is a threshold question which, if it applies to driving offences, must therefore apply to the other more serious dishonesty offences.
Whilst in the time available, I have not been able to find any judicial pronouncement on the issue, there are suggestions in some of the literature that the exact nature of the trial can affect whether a person is fit to plead or not. Thus, for example, Birgdin A and Thomson D, “The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment Procedure Involving Mental Health Professionals and Lawyers” (1999) 6(2) Psychiatry, Psychology and Law 207 refer to the complexity of a trial as a relevant factor in determining whether an accused person is fit to plead.
Similarly, the Supreme Court of the Northern Territory in R v P (1991) 105 FLR 12 (at 15) noted that “[t]he fact of his having counsel is relevant”.
For the initial determination that there is a real and substantial question, however, this factor would not, in my opinion, loom large, if at all. It seems to me that it would be an extremely rare situation where a report of a clinical psychologist, after an examination of an accused, or a defendant, that reported in the context of the statutory criteria in s 311 of the Crimes Act, that the person was unfit to plead would be insufficient to justify a finding that there was a real and substantial question as to that person’s fitness to plead.
Thus, the very report itself was ample justification for the finding in respect of the additional 14 charges, even though the report had been prepared in respect of some and not all the charges.
Indeed, the report of Dr Kasinathan (see [6] above) would, in my view, also be a sound basis for a court deciding that there is a real and substantial issue as to the respondent’s fitness to plead, even though it was prepared for other proceedings.
It may even be that, once an accused, or defendant, is found unfit to plead, he or she cannot be tried until a finding of fitness is made. This was the position in R v Khallouf [1981] VR 360 (at 364-5) and R v Forrester (1982) 31 SASR 312 (at 314) though in both cases, the issue arose in the course of the one proceeding. I do not have to decide this issue and no argument was addressed to it.
There is, however, no doubt in my mind that, in the circumstances, where further offences were being dealt with at the same time by the Learned Magistrate, she was entitled to proceed to consider the unfitness to plead of the respondent in respect of all charges, even though the required preliminary matter had only been addressed in relation to some of them. It may, however, have been preferable if her Honour had, as, on the facts she was bound to do, made a formal finding that there was a real and substantial question on the additional charges as well and reserved that question also to the hearing, even if it was to be held instanter, on those in respect of which the report had already been prepared. The only question then would have been whether the report was sufficient for the purposes of the actual investigation on these other charges, that is, whether the findings were sufficiently generic to found the necessary consideration or whether the specific details of the additional charges needed to be addressed additionally by the report’s author. If so, an adjournment may have been required.
The admissibility of the report
Mr J White, the Director of Public Prosecutions (ACT) who appeared for the appellants, submitted that the report of Ms Marsh was inadmissible as hearsay unless by consent. That could be problematic, for that could only be done under s 190 of the Evidence Act 1995 (Cth) (Evidence Act) and the consent of the respondent required under s 190(2) would be unable to be obtained with certainty in these proceedings for they concern a person who may have a mental impairment or disability, such that the consent could not be obtained or on which it could not be relied. That, however, would not be known until the material was admitted.
It seems to me, however, that there is a statutory answer to this submission. The report is prepared following a requirement for the defendant (here, the respondent) to be examined by a psychiatrist or other health professional: s 315A(1)(b)(ii) of the Crimes Act. The Act then provides that the court may “require the results of the examination to be put before the court”: s 315A(1)(b)(iii). This, in my view, refers to the report of the professional who conducted the examination. This provision applies notwithstanding the Evidence Act: s 8(4)(b) of the Evidence Act. The words used in s 315A(1)(b)(iii) of the Crimes Act seem to me to be clear that this is what is meant.
Opportunity for cross-examination and submissions
That, of course, does not mean that the court can necessarily ignore a request by one of the parties for the author of the report to be subject to cross-examination. The court still has a duty to act fairly and judicially: Official Solicitor to the Supreme Court v K & Anor [1965] AC 201 (at 237-8).
Mr White submitted that, in this case, the proceedings were unfair and should be set aside on appeal because the appellants had been denied the right to test the opinion of Ms Marsh. This submission has two parts: do the appellants have that right and, if so, were the appellants actually denied that right? I shall deal with the first issue here and the second issue below (at [51]-[62]).
Right to cross-examine
As to the first issue, there is no absolute answer. Certainly a fair trial, mandated at common law and also by s 21 of the Human Rights Act 2004 (ACT), would ordinarily require that where the results of the examination were to be challenged, then some cross-examination would be allowed and, if not, the proceedings could properly be said to be unfair.
The content of the requirement of natural justice is not fixed, however, as was held by the High Court in The Queen v Commonwealth Conciliation and Arbitration Commission & Ors; Ex parte The Angliss Group (1969) 122 CLR 546 where Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said (at 552):
The requirements of natural justice depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth.
This applies not merely to tribunals, but to courts. For example, the provision that there is no right to cross-examination in the Small Claims Division of the Local Courts of New South Wales has been held to be consistent with natural justice: McClymont v The Owners - Strata Plan No 12139 (2009) 74 NSWLR 404 (at 412 [39]).
In any event, a court has power to limit cross-examination, as was noted by the High Court in Wakeley and Bartling v The Queen (1990) 93 ALR 79. Thus (at 86) the court said:
In R v Kalia (1974) 60 Cr App R 200 and in R v Maynard (1979) 69 Cr App R 309, while the Court of Criminal Appeal affirmed the duty of counsel not to extend cross-examination unduly nor to pursue irrelevant lines of inquiry, it emphasised that counsel must always be at liberty to do their duty in the proper interests of the client. It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.
That does not mean, of course, that ordinarily cross-examination would be denied to a party completely. Indeed, to the contrary, it would ordinarily not be denied. It does mean, however, that no party has an unfettered right to ask whatever questions he, she or it wishes. See, for example, ss 29 and 41 of the Evidence Act 1995 (Cth). If the court is not assisted by cross-examination, it clearly has the power to curtail or prevent it in an appropriate case. Thus, merely to assert a wish to test the opinion expressed is not sufficient where no request was made to do so.
Was it denied here?
As noted, there was in this case no request by the prosecution to cross-examine the author of the report.
The practice has been that many such reports are tendered and the author is not required to attend court or to be cross-examined. That seems to me to be in accordance with the Crimes Act and efficient and mostly appropriate.
Thus, where there is an issue that needs to be addressed by cross-examination, it seems to me that the party which seeks to do so bears a degree of responsibility to make the court aware of that so that appropriate arrangements can be made. For example, the author of the report will not normally be present at the investigative hearing unless prior arrangements are made.
There was no request made on this occasion. The prosecutor was silent as to whether she considered there ought, or needed, to be cross-examination or, indeed, whether she wanted that opportunity.
Ordinarily, that would have been sufficient to dispose of this appeal and dismiss it. If a party does not seek to cross-examine, or make submissions, it cannot later complain that it was not allowed to do so.
The course of the proceedings is of concern to me, however, and I have had to give careful consideration to that. That consideration has led me to the view that the process did miscarry.
In the first place, the prosecutor did not have a copy of the Forensic Mental Health report of Ms Marsh. That issue cannot, fortunately, arise now in this Court, when investigations into an accused person’s fitness to plead is arranged, for when the Court (usually at the first directions hearing in this Court) reserves the question of the accused’s fitness to plead for investigation under Div 13.2 of the Crimes Act, an order is customarily and automatically now made that a copy of the report, when received by the Court, is to be released to the parties.
While the report was not a long one and the Learned Magistrate could fairly read and absorb it within the time of the adjournment, that does not mean that a party could be expected to determine the appropriate forensic approach to it within the same timeframe. Other forensic issues which a judicial officer does not need to consider must form part of the consideration that a party must give in such a situation.
Next, while the Learned Magistrate made an inquiry of the prosecutor as to her attitude to the application, the circumstances meant that I cannot be satisfied that a real opportunity was given for that attitude to be expressed. An inquiry was made, but no answer was apparently received. I make no criticism of the participants, for that can sometimes happen during debate on issues. It is, however, incumbent on both the magistrate (or other judicial officer) and on the representatives of a party, to ensure that these views are heard. It is difficult to see from the transcript that the Learned Magistrate could have known what the prosecution’s views were of the question under investigation and this was necessary. To have a response to such an invitation clearly recorded on the transcript is very helpful and saves the kind of difficulties experienced in this appeal. I appreciate that much happens in court that is not captured on the transcript, hence my hesitation, but I cannot be satisfied to the requisite degree that the opportunity was in fact reasonably afforded.
To be precise then, I do not consider that the prosecution was denied any opportunity for cross-examination in the sense of a refusal or a conscious negation of that opportunity, but that the course of the proceedings meant that no reasonable opportunity was actually given to the prosecution to express its views and, if that was to challenge the report, to do so.
I have taken into account that the prosecutor was a reasonably experienced prosecutor and I have no doubt that she was well capable of making the necessary submissions. The circumstances of the hearing, however, lead me to entertain a real doubt as to whether the prosecutor was reasonably able to exercise that wish, if, as it appears from the appeal, the prosecution wished to do so.
It was also submitted by Mr White that I could not even be sure that the Learned Magistrate, in the passage referred to at [23] above invited the prosecutor to make submissions. Her Honour clearly was addressing one of the counsel when she said “unless you want to make any submissions to the contrary”. Mr White submitted that I could not be sure to whom her Honour was addressing. I am satisfied that logic requires me to find that this query could only have been directed to the prosecutor. It simply does not make sense to say that it could have been directed to the respondent’s counsel in the circumstances. Nevertheless, it seems to me that, in the absence of a recorded “No, your Honour” or equivalent on the transcript, I cannot be satisfied that a real opportunity was given to respond to this invitation.
The adequacy of the report
Notwithstanding the failure of process I have identified, it appears to me that were I satisfied that the material showed unarguably that the respondent was unfit to plead, there would be no utility in allowing the appeal. See Stead v State Government Insurance Commission (cited at [28] above). It is, therefore, appropriate to consider the report in some detail and the comments made on it by Mr White on the appeal.
Ms Marsh addressed each of the criteria set out in s 311 of the Crimes Act and made comments on them with references to what she found in her examination on consultation with the respondent as well as having regard to the earlier report of Dr Kasinathan. In view of the fact that the respondent’s mental impairment was the result of his intellectual disability, this was appropriate.
Mr White submitted that the report was inadequate and did not properly address the criteria.
The criteria in s 311 are, in my view, to be interpreted broadly and not as a chemical or mathematical formula. It is the substance of these criteria and not compliance with some verbal formula that is required. After all, as the High Court noted in Kesavarajah v The Queen (1994) 181 CLR 230 (at 245), the minimum standards for fitness to plead are based on what Alderson B said in R v Pritchard (1836) 7 Car FP 303 (at 304); 173 ER 135 (at 135), namely:
The question is whether the prisoner has sufficient understanding to comprehend the nature of the trial, so as to make a proper defence to the charge.
As Smith J said in R v Presser [1958] VR 45 (at 48):
A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of the section that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. Dixon, J, as he then was, mentioned in Sinclair v R (1946), 73 CLR 315, that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion. And the question, I consider is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.
When what is now, in substance, s 311 of the Crimes Act, was enacted as s 68 of the Mental Health (Treatment and Care) Act 1994 (ACT), it was clear that the legislature was enacting what was seen as the common law test. In the Explanatory Memorandum, it was said (at 16):
In making its determination, the Tribunal is to hold an inquiry and determine on the balance of probabilities whether a person is fit to plead to the charge. Subclause (3) sets out the matters that the Court must be satisfied of before making a determination that a person is fit to plead and incorporates the test from R v Presser [1958] VR 45. If a person is unfit to plead to the charge, the Tribunal shall determine whether or not the person is likely to become fit within 12 months after the determination is made. When notifying the court of its determination, the Tribunal may make recommendations to the Court as to how the person should be dealt with.
When the legislature “incorporates the test from R v Presser”, it seems to me that it includes not just the criteria, but the context as set out in the extract quoted (at [67]) above. Thus, I have no doubt that the criteria are to be “applied in a reasonable and commonsense fashion” and not in “any extreme sense, or in any over-literal sense”.
When the provision was removed from that Act and re-located into the Crimes Act instead by the Crimes Amendment Act 2005 (ACT), the Explanatory Statement to the Bill stated (at 4):
New section 311 inserts the definition of ‘fitness to plead’ into the Crimes Act 1900. The definition is based on the existing definition in section 68 of the Mental Health (Treatment and Care) Act 1994. A person is unfit to plead to a charge if the person’s mental processes are so disordered or impaired that the person cannot understand the nature of the charge, cannot enter a plea or challenge jurors, cannot understand the nature or course of the proceedings, cannot understand the effect of the evidence that may be given by the prosecution or is not able to give instructions to his or her lawyer.
In my view, this legislative move did change some drafting slightly, but did not change the test as I have described it.
In considering the criteria, I note that, in order to be found unfit to plead, the court need only find that the respondent was unfit in respect of one criterion. In order to be fit to plead, a defendant must meet all the criteria, that is, the “minimum standards which he needs to equal before he can be tried without unfairness or injustice”: R v Presser (at 48).
As the court said in R v Rivkin (2004) 59 NSWLR 284 (at 297 [298]-[301]):
298... The test in R v Presser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.
299Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill.
300That is not the concern to which the test in R v Presser is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or display at trial. It does not necessarily follow that they were unfit to be tried.
301That is because the question of fitness to be tried relates to the essential requirements identified by R v Presser. If the understanding and the mental and physical capacity of an accused means that he or she meets those requirements, then that accused is fit to be tried – a question which is itself to be decided upon a balance of probabilities. The test does not contemplate or assume that an accused is able to perform at trial according to his or her maximum potential.
In Eastman v The Queen (2000) 203 CLR 1 (at [26]-[27]) Gleeson CJ noted that the following propositions, enunciated in R v Taylor (1992) 77 CCC (3d) 551 (at 564-5), were “sound, and ... consistent with the statutory test”:
(a)The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.
(b)The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c)The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d)The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.
Nevertheless, the statutory criteria must be addressed by the health professional who is directed to examine the defendant for the purposes of the investigation.
Accordingly, I deal with the criteria as dealt with by Ms Marsh.
to understand the nature of the charge(a)
Ms Marsh was concerned that the respondent did not remember the charges and noted that “due to his apparent lack of memory, his understanding did not extend from (sic) this”.
In 2008, Dr Kasinathan had found that the respondent “understood what he was charged with, though he seemed unable to explain the practical ramifications of what those charges entailed in regards to how he should be represented at court”.
Section 311(2) provides:
A person is not unfit to plead only because the person is suffering from memory loss.
Accordingly, what Ms Marsh found would not render the respondent unfit to plead, for his difficulty flowed directly from his memory. That is reinforced by the finding of Dr Kasinathan which showed that he was able to understand that charge, though there were other difficulties which he faced in participating in the proceedings.
The finding that the respondent could not remember is also insufficient as an examination of this criterion. What needs to be explored in this context is what lawyers would call the elements of the offences. That is to say, what the respondent is required to understand, is what conduct is prohibited by the charge itself in the circumstances under which it is laid. A good example, is the notion of attempt in a charge of attempted rape as was found in R v Miller (No 2) [2000] SASC 152 (at [40]) which the court found the accused there could not really understand.
It is not clear to me that cross-examination by the prosecution was relevant to a consideration of this criterion in this case for Ms Marsh’s findings could not have been a proper basis for finding the respondent unfit to plead. It did, perhaps, call for submissions to make the point.
to enter a plea to the charge and exercise the right to challenge(b)
Ms Marsh reported that the respondent “did not exhibit an understanding of the concepts of ‘guilty’ or ‘not guilty’”.
Mr White suggested that Ms Marsh had not appreciated the issue, that “the question that is answered is the wrong question”. He submitted that the issue was really “in conjunction with your legal advisors as to whether ... what you have done constitutes an offence or not. And so, to talk about the concepts of guilty or not guilty, which are concepts that philosophers might ponder over, is simply missing the point.”
I am not satisfied that this correctly identifies what is required. I accept that the issue is not one of philosophy, but entry of a plea is not simply a question of whether the accused committed the crime or not.
The notion of being able to enter a plea is not merely the formal function of responding “guilty” or “not guilty” on arraignment, but “in the sense of a deliberate plea made with recognition of its implications”: R v Griffith (at [28]).
Martin J said in R v Miller (No 2) (at [42]):
The accused can understand the nature of the proceedings in the sense that he can understand they are to determine whether he is guilty or not guilty, but his perception of the meaning of guilty or not guilty is based upon his understanding as to the likely consequences.
Thus, the ability to enter a plea is not by any means limited to a question of whether he committed certain acts or had certain mental states, it encompasses the forensic circumstances of what that entails. It is also bound up in the context of the trial itself. As Wood CJ at CL said (at [54]) in R v Polanski [1999] NSWSC 433:
Moreover [Dr Canaris, psychiatrist] thought that [the accused] might have major difficulty in weighing up the evidence to be presented, making it extremely difficult for him to enter an appropriate plea or to take advice from counsel in that regard.
I have thought long and hard about the finding of Ms Marsh on this criterion. It seems to me that her finding makes it almost inevitable that the respondent would be found unfit to plead and, that it is difficult to see what cross-examination would alter that situation. I cannot, however, categorically find that she has made a finding that, with exploration, might not disclose something to the court that might cause it to reject the opinion of Ms Marsh.
After all, as Chesterman J said in R v T (2000) 109 A Crim R 559 (at 565[22]):
The authorities also suggest that the test is not a demanding one. If an accused realises, in general terms, what it is to be put on trial and can make sense of the evidence against him he can take a sufficient part in proceedings for the trial to proceed.
At the end of the day, however, I would be very surprised if the respondent were not found to be unfit to plead, based on this criterion.
the proceeding is an inquiry as to whether the defendant committed the offence(c)
Ms Marsh opined that the respondent “appeared to understand the basic nature of [the] proceeding”. She was concerned that, to Dr Kasinathan, the respondent had seemed to suggest the proceedings simply related to bail rather than to establishing culpability. She seemed to address the criterion adequately.
Despite the reservations, it does not seem that, judged by this criterion, the respondent was unfit to plead and this did not seem to be contested.
to follow the course of the proceedings(d)
Ms Marsh expressed reservations about the respondent’s intellectual capacity to meet this criterion, especially combined with his limited understanding of the court proceedings. She was also concerned with his attention span and this is a factor that, where a result of the mental impairment, justifies a finding of unfitness: R v McKitterick (2004) 36 SR(WA) 115 (at 119 [24]); R v Polanski (at [53]). Ms Marsh appropriately addressed the criterion.
The court does not require the defendant to understand the evidence in detail, nor to understand necessarily the law or its application to the facts. What is required is “to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and ... properly defend the charge assisted by counsel”: R v Dunne [2001] WASC 263 (at [14]).
Mr White’s challenge to this did not seem so much to be to challenge the opinion, but the consequence, namely that the deficit “could simply be met by a structuring of the way the court proceedings are proceeded”. He submitted that this was “something one would wish to test Ms Marsh on, to see what could be done to assist the young person in following the proceedings”.
It is correct that the court in determining fitness to plead must consider the assistance that can be provided to the defendant, unless, of course, that assistance is unavailable, such as for an unrepresented defendant: see Ngatayi v The Queen (1980) 147 CLR 1 (at 9).
It is also correct that some steps can be taken to accommodate difficulties that a defendant with a mental impairment might suffer, such as an adjournment, as suggested in Kesavarajah v The Queen (at 246). Other forms of assistance may be prejudicial to other parties: Mantell v Molyneux (2006) 68 NSWLR 46 (at 56 [33]).
In R v Smith [2008] NSWDC 23, Norrish QC DCJ concluded (at [36]):
I conclude that the evidence establishes, on the balance of probabilities, that the accused is fit to be tried. All the criteria identified in the ‘Presser test’ are satisfied. However, any proceedings relating to the prosecution of the accused will need to provide opportunity for the accused, during the hearing, to obtain ‘one on one’ assistance to follow the proceedings from time to time and there will need to be suitable breaks and adjournments to assist the accused to digest, collate or synthesise the evidence given in the trial.
Nevertheless, I accept that in this case, some exploration of the knowledge Ms Marsh has as to the extent of the disability may be necessary or desirable to determine whether such assistance is reasonably appropriate, the extent of it and whether it is likely to address the prejudice to the respondent’s full participation in the proceedings. This is necessary both to determine whether he can meet this criterion and whether, if he meets all the other criterion, how this one can best be addressed.
to understand the substantial effect of evidence(e)
Ms Marsh was concerned that the respondent’s inability to remember made this criterion difficult to assess. She found he had a “basic understanding” but she was not satisfied that he would understand the “substantial effect” of any evidence. She also noted that he “appeared to be disinterested (sic)” and this was likely to result directly from his inability to understand the processes. In this finding, Ms Marsh seemed to address the criterion appropriately.
Mr White submitted that Ms Marsh’s use of the word “disinterested” made her opinion unclear. I accept that she probably meant “uninterested”, but it is true that this could be that he, in Mr White’s phrase, “just can’t be bothered”. Some exploration of that is appropriate, though it might be, as foreshadowed above (at [94]) that this is due to the impairment affecting his attention span.
Mr White did not appear to submit that the criterion had not been adequately addressed, but submitted that it was appropriate to explore whether the respondent’s situation, for example with drug taking, had changed, so that Dr Kasinathan’s opinion was no longer relevant. Dr Kasinathan had found that the respondent did not appear to meet this criterion. It is true that circumstances can change, though as noted in Ierace, M, Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing: Sydney, 1989) pp 78-9, “[t]he condition of intellectual disability is, however, permanent”. That, too, was the opinion of Ms Marsh in her report. Mr Ierace notes that it is possible, nevertheless, for such people to acquire a degree of knowledge and adaptive skills “if taught in an appropriate way”. This can depend on education and services. He was sceptical of it changing within 12 months but, did not suggest it could not occur. One cannot assume, as with other young people, that time will change the respondent’s cognitive impairment.
Accordingly, there is some room here for cross-examination and exploration of how the trial could be structured to meet the respondent’s needs.
to give instructions to legal representatives(f)
Ms Marsh reported that the respondent considered he did not “instruct” counsel, indeed he “doesn’t tell his lawyer anything, he simply leaves it up to them to do as they see fit”. She expressed her view that he “does not possess the communication skills required to communicate his legal position effectively to his legal representative.” This addressed the criterion quite appropriately.
Mr White did not make express submissions on this criterion.
This criterion is a common source of concern, perhaps because it is the one that affects defence counsel most clearly. It is also one where some interpretation is needed. I note, for example, that there is no qualifier, such as in New Zealand, where “adequately” has been included in the relevant provision, s 39A of the Criminal Justice Act 1954 (NZ). This has been interpreted to mean that a person is not fit to plead if what is communicated to counsel is unwise: R v Carrel [1992] 1 NZLR 760 (at 767). This does not apply in Australia as noted above (at [74]). As was said in Ngatayi v The Queen (at 8), an accused does not have to have the capacity to make “an able defence” or “to act wisely or in his own best interest.”
The criterion does allow for some flexibility as noted by Grubin D, “What Constitutes Fitness to Plead?” [1993] Crim LR 748 (at 754). Indeed, some commentators go so far as to call the criteria “vague”: Freckleton, I “Rationality and Flexibility in Assessment of Fitness to Stand Trial” (1996) 19 International Journal of Law and Psychiatry 39 (at 49).
The High Court, in Ngatayi v The Queen (at 9), referred to the need for “the accused [to be] able to understand the evidence, and to instruct his counsel as to the facts of the case” so that no unfairness or injustice is occasioned. In R v House [1986] 2 Qd R 415, Connolly J (with whom Ambrose J agreed and Williams J generally agreed) said (at 422) by reference to Ngatayi v The Queen:
Capacity to instruct counsel involves understanding the evidence which is led so as to be able to inform counsel whether it is true or not and whether there are other facts which qualify or explain the evidence adduced. It does not involve understanding the law especially if, as in this case, he had the benefit of counsel.
Further, it appears that a defendant may be unfit to plead because their condition may not enable them to meet this criterion where, although they can give an account of relevant events to counsel, the reliability of the account is problematic as is their capacity to adhere to it when subjected to pressure or suggestion, as occurred in R v Dunne [2002] WASC 196 (at [26]).
Thus, where the defendant’s lack of the insight into their medical condition means that they are unable to give instructions to their lawyers at the trial, they will be unfit to plead. See Wills v The Queen (2007) 173 A Crim R 208 (at 224 [80]).
Medical conditions can impair the ability of a defendant to communicate rationally and effectively with their counsel, not only by irrationality or delusion. Thus, states such as akinesia can result in apathy, disinterestedness or unpreparedness to communicate with counsel; see Freckleton I, “Rationality and Flexibility in Assessment of Fitness to Stand Trial” (1996) 19 International Journal of Law and Psychiatry 39 (at 53). Professor Freckleton suggests that “mere capacity to communicate an instruction is not sufficient”. It must be responsive to questions posed and more than monosyllabic, as well as not being nonsensical or irrational. Of course, the cause must be the mental impairment and not mere intransigence, lack of interest or unwillingness to participate. Similarly, lack of rapport is not sufficient, even though it would be prejudicial to an effective defence, unless it is caused by the mental impairment.
The limits on the notion seem to suggest that a determination to plead not guilty in the face of a strong Crown case and, indeed, a failure or inability to instruct counsel on the issue of whether the defendant is not guilty on the grounds of mental illness will not result in a finding of unfitness to plead. See R v Holt [2009] NSWDC 147 (at [28], [34]).
Certainly, the opinion of Ms Marsh does strongly support the finding of the Learned Magistrate, but I cannot say that further exploration of the issues involved will not disclose that the inability to communicate is not due to the respondent’s intellectual disability.
Conclusion
My concern in this case is that the process has failed the respondent and that an adequate and proper process could possibly have made a difference to the outcome. Regrettably, I think that it is most likely that the outcome will not change; indeed, I would be very surprised if the respondent were to be found fit to plead. The report of Ms Marsh was, so far as I could tell, a carefully prepared, professional assessment, addressing correctly and adequately, except for the first criterion, the statutory criteria in a proper way and expressing an opinion based on disclosed facts that the respondent was unfit to plead.
On balance, I have decided that I cannot say to the requisite degree of satisfaction that allowable cross-examination could not reasonably disclose some inadequate basis for the opinion, though I think that unlikely.
In the result, I consider that the only way to proceed is to set aside the finding and remit the proceedings back to the Childrens Court for a hearing. Both the prosecution and the defence are entitled to a fair process and that includes reasonable notice of the report and time fairly to consider it, an appropriate opportunity for cross-examination and an adequate opportunity for submissions to the Childrens Court Magistrate.
Given the circumstances, I express the hope that this be done as soon as possible.
Title to the proceedings
After I had given judgment on appeal, I realised that the title to these proceedings may have breached s 712A of the Criminal Code 2002 (ACT). That provision is relevant in the following terms:
712A Publishing identifying information about childrens' proceedings
(1)A person commits an offence if the person publishes information that identifies someone else as a person who is or was a child or young person the subject of a childrens' proceeding.
Maximum penalty: 300 penalty units, imprisonment for 3 years or both.
(2)Information that identifies someone includes information that –
(a)Discloses the name, address or suburb of the person, or of a family member of the person ...
(5) In this section:
Childrens proceeding - the child or young person is or was the subject of a childrens proceeding if –
...
(f)the child or young person was the subject of a criminal proceeding ...
The proceedings should not, therefore, have been commenced by the appellants with the name of the respondent disclosed. Accordingly, I have removed the name of the respondent from these reasons and shall ensure that the court file is appropriately sanitised.
Orders
Although I have, with some considerable reservations, set aside the decision, I express the expectation that the matter will be re-heard as soon as is practicable because of the real likelihood that the same result will be achieved but through the correct process.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 18 June 2010
Counsel for the Appellants: Mr J White
Solicitor for the Appellants: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr M Toole
Solicitor for the Respondent: Legal Aid Office (ACT)
Dates of hearing: 27 May and 3 June 2010
Date of judgment: 18 June 2010
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