Jonathon Monaghan v The Queen

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.