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 fitness to plead, does not allow for a finding of conditional fitness to plead, in the sense that it does not allow a court to make a determination that the appellant would be fit to plead if certain measures were put in place, as was done by Refshauge J.
In that regard, I was taken by Mr White to par 25 of his Honour Refshauge J’s decision R v Monaghan (No 2) [2011] ACTSC 62, where his Honour refers to the decision of the High Court in Ngatayi v The Queen (1980) 147 CLR 1. In my opinion, that extract, which is set out at par 25 of his Honour’s decision, sets out succinctly the proposition that the test with respect to a determination of fitness to plead is to be applied with a degree of common sense and in a reasonable fashion.
Whilst that decision dealt with the test of fitness to plead at common law, I can see nothing in s 311 of the Crimes Act which would indicate that the legislature had sought to achieve a different end in legislating as it has in s 311. As such, it appears to me that the prospects of success for the appellant with respect to that remaining ground of appeal is also not such as to warrant the matter being dealt with at this time by the Court of Appeal.
In any event, it is very clear that it would be undesirable to further fragment the present proceedings. There are a number of decisions in the High Court, including the decisions in Griffin v The Queen [2008] HCATrans 72 and in R v Iorlano (1983) 151 CLR 678, which are set out in the written submissions of the respondent to the present application, which make it very clear that courts should be very reluctant to fragment the criminal process through applications such as the one which is now before this Court.
I also note that if the trial proceeds in the way envisaged by Refshauge J that there will be a review of the appellant’s fitness to plead at the end of the first day of the trial by an appropriate professional in order to determine whether the appellant is properly able to follow and participate in the proceedings, as anticipated by his Honour in his decision. To a great measure, his Honour’s decision is based upon a report and evidence given by Dr George.
It was acknowledged by Dr George that it is possible that Dr George may have overestimated the appellant’s abilities to comprehend the nature of the proceedings and those other matters which are required in order for the appellant to be fit to plead. To that end, Refshauge J has put in place a suggested mode of trial to deal with that issue. If, ultimately, the question of fitness to plead is raised, either based upon further information prior to the trial or based upon information from a psychologist, as anticipated by his Honour at the end of the first day of the trial, that will need to be considered by whoever hears the trial at that time.
I point this out because it is clear that his Honour’s decision does not make a substantive finding as to the appellant’s fitness to plead, which is, as it were, set in concrete. The issue will remain alive and may be agitated further if there is appropriate evidence supporting it being agitated. I further note that, in due course, if the appellant is convicted of any charge, he will have the ordinary rights of appeal, which may include a question of whether the approach taken by his Honour to the question of fitness to plead was correct.
In that regard, there is really little difference between the determination which has now been made by his Honour prior to the trial and a determination of fitness to plead during the course of the trial. Such applications relating to the question of the appellant’s fitness to plead are commonly made in the course of a criminal trial and if the appellant is ultimately convicted, the question of whether the appropriate test was applied with respect to that issue during the course of the trial is a matter that can be agitated on appeal.
It is my view that those matters which have been raised by the appellant in the course of this application are not so cogent as to warrant the Court of Appeal ruling upon them at this time, and in any event, there are good policy reasons relating to the undesirability of fragmentation of criminal proceedings, why that issue should not be agitated in the Court of Appeal and if necessary, should be left until such time as the trial has concluded. As such, I refuse the application for leave to appeal.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 30 September 2011
Counsel for the appellant: Ms T Warwick
Solicitor for the appellant: JCKB Legal Services
Counsel for the respondent: Mr J White
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 22 September 2011
Date of judgment: 22 September 2011
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