LUNT v Police - [2013] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LUNT v POLICE
[2013] SASC 24
Judgment of The Honourable Justice Stanley
22 February 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant convicted of numerous offences following plea of guilty – a sentence of 18 months imprisonment with 11 months non-parole was imposed – appellant appeals against conviction and sentence – appeal against conviction is on the basis that a miscarriage of justice occurred in the court accepting her pleas and entering convictions in the absence of undertaking an investigation pursuant to s 269J(1) of the Criminal Law Consolidation Act 1935 (SA) – appeal against sentence is on the ground that the court erred in sentencing her for charges which are duplicitous.
Held: appeal allowed, convictions quashed and sentence set aside – matter to be remitted to the Magistrates Court to be heard before a different Magistrate – investigation pursuant to s269J(1) of the Criminal Law Consolidation Act 1935 (SA) is to be ordered by the court before which the appellant is to be tried.
The failure to order an investigation constituted a miscarriage of justice – the convictions must be quashed – it follows that the sentence must be set aside rendering it unnecessary to decide the appeal against sentence.
Criminal Law Consolidation Act 1935 (SA) Division 3, Part 8A, referred to.
Nudd v The Queen (2006) 162 A Crim R 301, applied.
TKWJ v The Queen (2002) 212 CLR 124, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"to suppose"

LUNT v POLICE
[2013] SASC 24
Magistrates Appeal: Criminal
STANLEY J:
Introduction

On 5 December 2012 the appellant was convicted by a magistrate on her plea of guilty of numerous offences, namely, illegal use of a motor vehicle, driving under disqualification, aggravated driving without due care, being unlawfully on premises, theft, deceit with a credit card to benefit self, serious criminal trespass, illegal interference with a motor vehicle, unlawful possession of a television and breach of bail.
The appellant had an extensive history of offending.
The learned magistrate imposed a sentence of 18 months imprisonment with a non-parole period of 11 months. He did not suspend the sentence. He disqualified the appellant from holding a driver’s licence for a period of 12 months from the date of her release from custody in respect of each of the charges of drive a motor vehicle without consent and interfere with a motor vehicle without consent. The disqualifications are to be served concurrently.
The appellant appeals against conviction and sentence.
The appeal against conviction is on the basis that, notwithstanding her plea of guilty to all of the charges, a miscarriage of justice occurred in the court accepting her pleas and entering convictions in the absence of it undertaking an investigation pursuant to s 269J(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) into her mental fitness to plead.
The appeal against sentence is on the ground that the court erred in sentencing her for charges which are duplicitous, namely, driving whilst disqualified and aggravated driving without due care.
Background to the conviction and sentencing
The appellant’s offending was alleged to have occurred on various occasions between 28 July 2012 and 22 September 2012. The appellant was arrested on 24 September 2012 and bail was refused. On the request of her counsel, a psychiatric report was obtained from Dr Craig Raeside. That report is dated 8 November 2012.
Dr Raeside interviewed the appellant for the purposes of his report at the Adelaide Women’s Prison on 7 November 2012. He had not previously had any contact with her. It was apparent to him from the beginning of the interview that the appellant was somewhat vague and likely to be cognitively impaired. He considered her history suggested an underlying intellectual impairment and past head injuries, a recent coma and longstanding substance abuse, all of which were likely to have severely compromised her cognitive functioning. He recommended a neuropsychological assessment to more accurately identify any underlying cognitive impairment. He considered that she would have marked difficulty following the course of proceedings in any protracted court matters such as a trial. While the appellant conveyed to him her understanding that she was charged with several offences, he considered it was clear that she was quite confused about all of this, and could not give a coherent account as to the charges themselves, let alone the nature of them and the circumstances surrounding them. Dr Raeside considered it was likely the appellant had a basic understanding of the court function, but he entertained serious concern about whether she would be able to provide adequate instructions as well as follow the course of proceedings at court due to her likely underlying cognitive impairment. In his report summary he indicated that she lacked a fitness to plead. However, he indicated his happiness to review his opinion in relation to her fitness following receipt of any neuropsychological assessment.
Following receipt of Dr Raeside’s opinion, the appellant’s counsel sought instructions from the appellant after providing her with a copy of Dr Raeside’s report and a letter of advice. She sought instructions from the appellant to apply for an adjournment of the proceedings for the purpose of allowing a neuropsychological assessment to be undertaken. The appellant’s counsel was instructed, I gather in emphatic terms, that the appellant wished to plead guilty to all of the charges and wanted to get the matter over and done with. She expressly did not wish to wait on remand for a neuropsychological report to be prepared. Her counsel explained to her that she was likely to face a custodial sentence. Her counsel deposed in an affidavit to the fact that in her assessment the appellant was lucid and understood the nature and effect of Dr Raeside’s opinion.[1] She considered she was fit to provide instructions to enter a plea of guilty.[2] Because of the circumstances, she obtained those instructions in writing. She did so by drafting the instructions herself, reading them to the appellant, and then having the appellant sign those instructions after indicating her agreement with their terms.[3]
[1] Affidavit of Donna Elyse Edwards, sworn 8 January 2013 at [10].
[2] Affidavit of Donna Elyse Edwards, sworn 8 January 2013 at [10].
[3] Affidavit of Donna Elyse Edwards, sworn 8 January 2013 at [11].
On 15 November 2012 the appellant’s counsel forwarded Dr Raeside’s report to the court.
On 16 November 2012 the appellant appeared before the learned magistrate represented by counsel.
Counsel for the appellant directed the learned magistrate’s attention to Dr Raeside’s report and the recommendation that a neuropsychological assessment be undertaken. She advised the learned magistrate, however, that her instructions were clear that the appellant wished to plead guilty to all of the charges and have the matters dealt with, and that she only proposed to rely upon Dr Raeside’s report as part of her submissions on penalty.
Following this submission, the learned magistrate addressed the appellant directly. The magistrate explained to the appellant the effect of Dr Raeside’s report, and the option available to her of adjourning the matter for the purpose of obtaining a neuropsychological assessment. He asked whether she was sure she wanted to proceed with the guilty pleas. The appellant indicated she wished the matter to be over and confirmed her intention to plead guilty and have the charges dealt with quickly without further delay. The learned magistrate then proceeded to hear submissions on penalty from the prosecution and defence. He adjourned the matter to 5 December 2012 for sentencing.
Before the matter came back to court on 5 December 2012, a further charge was laid. The appellant’s counsel obtained instructions in relation to this charge, and a guilty plea was entered when the matter resumed on 5 December 2012. The learned magistrate then proceeded to convict on all charges, and impose sentence.
Arguments on appeal
The appellant contends that a miscarriage of justice occurred in convictions being recorded in circumstances where counsel should not have permitted the appellant to plead to the charges without asking the court to undertake an investigation as to her fitness to plead, and the court should not have received those pleas without undertaking such investigation.
In addition, she submits an error occurred in that she was sentenced for offences which are duplicitous, namely, aggravated driving without due care, and driving whilst disqualified, where the circumstance of aggravation in relation to the charge of due care was that the appellant was disqualified from holding or obtaining a licence.
The respondent contends that there was no miscarriage of justice in this case. The police submit that the report of Dr Raeside was not conclusive as to the unfitness of the appellant to enter a plea. In any event, the learned magistrate was not bound to accept the recommendation of Dr Raeside that neuropsychological testing should be conducted, particularly, where the appellant was represented by counsel who had not exercised her discretion to act independently in the best interests of her client where counsel has reason to believe that the appellant was unable to give rational instructions.
The respondent conceded that there was an element of duplicity in relation to the charges of driving whilst disqualified and aggravated driving without due care, but submitted that apart from the two periods of disqualification to be served concurrently, there was no basis to interfere with the sentence which otherwise was appropriate.
Legislative background
Division 3 of Part 8A of the CLCA provides a regime for dealing with questions involving mental unfitness to stand trial. Section 269H provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Section 269I provides:
A person's mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial.
Section 269J provides:
(1) If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant's mental fitness to stand trial.
(2) The court's power to order an investigation into the defendant's mental fitness to stand trial may be exercised—
(a) on the application of the prosecution or the defence; or
(b) if the judge considers the investigation necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3)If a court orders an investigation into the defendant's mental fitness to stand trial after the trial begins, the court may adjourn or discontinue the trial to allow for the investigation.
(4)If a court before which a preliminary examination of an indictable offence is conducted is of the opinion that the defendant may be mentally unfit to stand trial, the preliminary examination may continue, but the court must raise for consideration by the court of trial the question whether there should be an investigation under this Division of the defendant's mental fitness to stand trial.
Section 269W in Division 5 of Part 8A provides:
(1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.
(2) If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant's best interests.
Fitness to plead
Prior to the enactment of the Criminal Law Consolidation (Mental Impairment) Act Amendment Bill in 1995 which introduced Part 8A into the CLCA, the special provisions of the criminal law dealing with major issues which arise when a person suffering from a mental illness comes before the court, were to be found almost entirely in the common law.
The rules about fitness to plead are rules which deal with the situation where a person, accused of a crime, cannot give full answer and defence or instruct counsel to do so. This is generally linked to a capacity to understand legal proceedings, but not invariably so. It is usually the case that the reason why the accused cannot give full answer or defence, and hence is not fit to plead, is due to a mental illness of some kind.
In my view, the policy which underpins the provisions of Division 3 of Part 8A dealing with fitness to plead, is a recognition of the special vulnerability of persons suffering from psychiatric illness who come before the courts. The purpose of these provisions is the protection of those persons. The mechanics of affording that protection impose particular obligations both on judges and magistrates, and defence counsel. These provisions, in part, are intended to protect the mentally impaired accused from themself.
Section 269I creates a presumption in favour of a person’s mental fitness to stand trial. The presumption is displaced only where it is established that a person is mentally unfit to stand trial pursuant to an investigation under Division 3 of Part 8A of the CLCA. That investigation is ordered by the court pursuant to s 269J, where the court considers there are reasonable grounds to suppose that a person is mentally unfit to stand trial.
Section 269J confers a discretion upon a court before which a person is to be tried, to order an investigation into the person’s mental fitness to stand trial.
The threshold test is whether there are reasonable grounds to suppose that a person is mentally unfit to stand trial. What constitutes mental unfitness to stand trial is informed by the terms of s 269H.
The meaning of the verb “to suppose” in s 269J(1) is, in its context, “be inclined to think, accept as probable.”[4] Accordingly, if there are reasonable grounds to be inclined to think that a person is mentally unfit to stand trial, i.e. that the person is unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based, or is unable to exercise procedural rights or to give rational instructions about the exercise of such rights, or is unable to understand the nature of the proceedings or to follow the evidence or the course of the proceedings, the discretion to order an investigation is enlivened.
[4] Concise Oxford Dictionary 5^th ed.
Section 269J(1) is expressed in discretionary rather than mandatory terms. Nonetheless, once there are reasonable grounds to suppose that a person is mentally unfit to stand trial, a court would only refrain from ordering the investigation contemplated by the subsection where cogent reasons exist not to undertake such an investigation. In the ordinary course, once the threshold test has been met, the court should proceed to order the investigation. To do otherwise runs the risk that a person who is mentally unfit to stand trial would be tried in circumstances which would give rise to the real risk of a miscarriage of justice.
Miscarriage of justice
In Nudd v The Queen,[5] Gleeson CJ observed that “the concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related”.[6]
The Chief Justice went on to observe:[7]
This emphasis upon outcome and process as requirements of justice according to law is fundamental and familiar. It informed the explanation of miscarriage of justice given by Barwick CJ in Ratten v The Queen:
“Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand.
…
That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.”
[5] (2006) 162 A Crim R 301.
[6] (2006) 162 A Crim R 301 at 304, [3].
[7] (2006) 162 A Crim R 301 at 304-305, [5].
Gleeson CJ noted that while it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, nonetheless there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of a failure of process is to deprive the appellate court of the capacity to assess justly the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed. An unjust conviction is one form of miscarriage. Another is a failure of process which departs from the essential requirements of a fair trial. Where this is alleged, the appeal court focuses on what happened at, or in relation to, the trial of the appellant. In these circumstances, it is unusual for the appellate court to embark on an enquiry into the conduct of counsel, because the issue is whether there has been a departure from the requirements of a fair trial, not why that may have occurred. However, in Nudd Gleeson CJ said:[8]
Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.
[8] (2006) 162 A Crim R 301 at 306-307, [8]–[9].

In TKWJ v The Queen,[9] Gaudron J said:[10]
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”. The word “fairly” should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
[9] (2002) 212 CLR 124.
[10] (2002) 212 CLR 124 at 133, [26].
Were there reasonable grounds to suppose that the appellant was mentally unfit to stand trial?
In my view, there were reasonable grounds for the court to suppose that the appellant was mentally unfit to stand trial. Accordingly, the court’s discretion was enlivened.
Dr Raeside’s opinion made clear his view upon assessing the appellant, was that she would have marked difficulty following the course of proceedings in any protracted court matters such as a trial, that she was quite confused about the circumstances of the offending with which she was charged, and he entertained serious concerns about whether she would be able to provide adequate instructions as well as follow the course of proceedings, due to her likely underlying cognitive impairment.
The court should have been satisfied on the basis of Dr Raeside’s opinion that there were reasonable grounds to suppose that the appellant was mentally unfit to stand trial. The fact that Dr Raeside’s opinion was not conclusive did not detract from the fact that his opinion was sufficient to meet the threshold test.
While I have sympathy for the position in which the learned magistrate found himself, managing a busy list, he should have concluded that his discretion to order an investigation into the appellant’s mental fitness to stand trial was enlivened on the basis of Dr Raeside’s report. The discretion having been enlivened, cogent reasons did not exist to refrain from undertaking the investigation contemplated by s 269J(1). Neither the fact that the appellant expressly rejected the suggestion that an investigation be undertaken and the fact that the appellant’s counsel did not see fit to exercise any independent discretion pursuant to s 269W to invite the court to undertake such investigation, constituted a proper basis to decline to order the investigation in the exercise of the court’s discretion. After all, the scheme of Division 3 of Part 8A of the CLCA is intended to protect a mentally impaired accused from themself.
In my judgment, the failure to order an investigation pursuant to the Division constituted a failure of process of the kind referred to by Gleeson CJ in Nudd v The Queen.[11] It is unclear whether the learned magistrate considered that the threshold test had not been satisfied, or whether he concluded that in the exercise of his discretion, he need not order an investigation. Whichever approach he took, he fell into error. It constituted a miscarriage of justice.
[11] (2006) 162 A Crim R 301 at 304-305, [3]–[5].
Accordingly, the convictions must be quashed. It follows the sentence must be set aside. This renders it unnecessary to decide the appeal against sentence. Nonetheless, I am satisfied the charges of aggravated driving without due care and driving while disqualified were duplicitous.
Conclusion
In the circumstances, I allow the appeal. I quash the convictions and set aside the sentence. I order that the matter be remitted to the Magistrates Court to be heard before a different magistrate. The order for an investigation pursuant to s 269J(1) is to be made by the court before which the appellant is to be tried. I will hear the parties as to the formal orders and the appellant on any application for bail she might wish to make.