Jonathon Monaghan v The Queen - [2011] ACTCA 22

JONATHON MONAGHAN v THE QUEEN
[2011] ACTCA 22 (22 September 2011)

Crimes Act 1900 (ACT), s 311
Supreme Court Act 1933 (ACT), s 37E

Griffin v The Queen [2008] HCATrans 72
Ngatayi v The Queen (1980) 147 CLR 1
R v Iorlano (1983) 151 CLR 678

R v Monaghan (No 2) [2011] ACTSC 62

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 42-2011
No. SCC 26 of 2009

Judge: Burns J
Supreme Court of the ACT

Date: 22 September 2011

IN THE SUPREME COURT OF THE     )          No. ACTCA 42-2011
  )          No. SCC 26 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JONATHON MONAGHAN
Appellant

AND: THE QUEEN
Respondent

ORDER

Judge:  Burns J
Date:  22 September 2011
Place:  Canberra

THE COURT ORDERS THAT:

The application for leave to appeal the interlocutory decision of Refshauge J in the matter of R v Monaghan (No 2) [2011] ACTSC 62 is refused.

This is an application for leave to appeal against an order made by Refshauge J on 14 April 2011. At that time, after having heard evidence in relation to the question of the appellants’ fitness to plead, his Honour found that, so long as special measures, which were outlined in his judgment, were implemented, the appellant is fit to plead.

There are two reasons why leave to appeal against the order of Refshauge J is required. First, the appellant has appealed outside the time which is prescribed for the bringing of such an appeal. Secondly, leave is also required because the proposed appeal would be an appeal against an interlocutory order made in the course of criminal proceedings. Mr White, the ACT Director of Public Prosecutions, who appears on behalf of the Crown in relation to this application, takes no issue with respect to the question of the timing of the appeal. The application for leave to appeal has been argued on the basis of the second reason why leave is required.

Section 37E of the Supreme Court Act 1933 (ACT) provides at subsection 4 that an appeal may be brought against an interlocutory order of the court constituted by a single judge only with leave of the Court of Appeal. I have been provided with a copy of the Draft Notice of Appeal. Many of the proposed grounds of appeal effectively seek to re-agitate matters of fact or matters of discretion that were to be determined by Refshauge J. In my opinion, those grounds of appeal have no great prospects of success and would not cast sufficient doubt on the decision of Refshauge J to justify the matter being dealt with by the Court of Appeal.

One matter where I was initially attracted to the argument put by counsel for the appellant was effectively an argument that s 311 of the Crimes Act 1900 (ACT) (Crimes Act), which provides the test for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jonathon Monaghan v The Queen

Details

AGLC: Jonathon Monaghan v The Queen [2011] ACTCA 22
Case: [2011] ACTCA 22
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal an interlocutory decision of Refshauge J in the Supreme Court of the Australian Capital Territory. The applicant, Jonathon Monaghan, sought to appeal an order made by Refshauge J that, subject to the implementation of specific measures, he was fit to plead to criminal charges. The application for leave to appeal was made outside the prescribed time limit and, more significantly, was an appeal against an interlocutory order in criminal proceedings, requiring leave from the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the grounds of appeal had sufficient prospects of success to warrant granting leave, and whether the appeal should be permitted to proceed given the interlocutory nature of the decision and the potential for fragmenting criminal proceedings. A specific point of contention was whether section 311 of the Crimes Act 1900 (ACT), which sets the test for fitness to plead, permitted a finding of conditional fitness, as made by Refshauge J.

The Court of Appeal refused the application for leave to appeal. It reasoned that many of the proposed grounds of appeal sought to re-litigate factual matters or discretionary decisions already made by the trial judge, and thus had no great prospects of success. Regarding the argument that section 311 did not allow for conditional fitness, the Court referred to High Court authority, including *Ngatayi v The Queen*, which indicated that the test for fitness to plead should be applied with common sense and reasonableness. The Court found nothing in the wording of section 311 to suggest a departure from this approach, and therefore considered this ground also unlikely to succeed. Furthermore, the Court emphasised the undesirability of fragmenting criminal proceedings, citing High Court decisions such as *Griffin v The Queen* and *R v Iorlano*, and noted that the trial judge had put in place a mechanism for reviewing the appellant's fitness to plead during the trial, and that any substantive errors could be raised on a final appeal if a conviction occurred.

Orders