R v Abdulla
[2005] SASC 399
•21 October 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ABDULLA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
21 October 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
Appellant, a deaf mute, charged with offence before District Court - trial judge refused an application for a permanent stay of proceedings based on argument that the proceedings would be an abuse of the process of the court - application for stay refused on ground that the procedures to determine fitness to stand trial provided for in Part 8A Division 3 of the Criminal Law Consolidation Act, 1935 (the Act) were applicable - held (by majority) that the procedures provided for in Part 8A Division 3 of the Act were applicable - appeal dismissed.
Criminal Law Consolidation Act 1935 Part 8A; Criminal Lunatics Act 1800 (UK) s 2; Crimes Act 1958 (Vic) s 393; Criminal Law Consolidation (Mental Impairment) Act 1935; Mental Health (Criminal Procedure) Act (NSW) 1990, referred to.
R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230; R v Pritchard (1836) 7 C & P 303; Eastman v The Queen (2000) 203 CLR 1; R v Dyson (1831) 7 C & P 305(n); Owen v South Australia (1996) 66 SASR 251; Barton v The Queen (1980) 147 CLR 75; Jago v District Cout of NSW (1989) 168 CLR 23; R v Mailes (2001) 53 NSWLR 251, applied.
Ngatayi v The Queen (1980) 147 CLR 1; R v Berry (1876) 1 QBD 447; R v Governor of Stafford Prison; ex parte Emery [1909] 2 KB 81; Question of Law Reserved (No 1 of 1997) (1998) 70 SASR 251; Black-Clawson Ltd v Papierwerke AG [1975] AC 591, discussed.
R v ABDULLA
[2005] SASC 399Court of Criminal Appeal: Duggan, Debelle and Besanko JJ
DUGGAN J. The background to this appeal is set out in the judgment of Debelle J.
The appellant applied to a District Court judge for a permanent stay of the proceedings against him. According to the argument, the medical reports before the court established that the appellant, a deaf mute, was suffering from deficits which would render a trial unfair, but which were not of such a nature as would justify a finding pursuant to s 269H of the Criminal Law Consolidation Act 1935 (“the Act”) that he was unfit to stand trial. It was argued that to require the appellant to stand trial would constitute an abuse of the process of the court.
The trial judge took the view that the matter should be dealt with in accordance with the procedures for determining whether a person is unfit to stand trial. In reaching this conclusion he rejected the argument that a person suffering from deficits such as those described in the medical reports before the court, could not, as a matter of law, be found unfit for trial pursuant to s 269H. As s 269H provided a procedure available to ensure that the appellant was not subjected to an unfair trial, the application for a permanent stay of the proceedings was dismissed.
There is little doubt that evidence of the appellant’s condition, as described by Dr Raeside in his reports, could have supported a finding under the repealed s 293 of the Act that he was unfit to stand trial. The principal question for decision is whether the deficits from which he suffers are capable of supporting a finding that the appellant is unfit to stand trial by reference to the criteria in s 269H of the Act which has replaced the repealed provisions. In particular, it is necessary to decide whether the appellant answers to the description of a person whose “mental processes are so disordered or impaired” as to lead to at least one of the consequences set out in sub-paragraphs (a), (b) or (c) of s 269H.
Later in these reasons I express the view that the manner in which the common law developed prior to the most recent amendments is of importance in interpreting the legislation. It is for this reason that I propose to provide a brief summary of the history of that development.
The origins of the criteria by which a defendant’s fitness to plead is determined can be traced back to medieval times: Grubin, “What Constitutes Fitness to Plead?”, [1993] Crim LR 748 at 749; Eastman v The Queen (2000) 203 CLR 1 at 399.
The purpose of these procedures was explained by Lord Chief Justice Kenyon in R v Frith (1790) Howell’s State Trials Vol 22 at 308 as follows:
… the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing; for, however guilty he may be, the inquiring into his guilt must be postponed to that season, when by collecting together his intellects, and having them entire, he shall be able so to model his defence as to ward off the punishment of the law.
The first statutory intervention to regulate these procedures took place with the passing of the Criminal Lunatics Act 1800 (UK) (“the UK Act”). Section 2 provided:
… if any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully impanelled for that purpose, so that such person cannot be tried upon such indictment … it shall be lawful for the Court before whom any such person shall be brought to be arraigned … as aforesaid to direct such finding to be recorded and thereupon to order such person to be kept in strict custody until His Majesty’s pleasure shall be known.
It is apparent from the wording of this section that it left scope for further development of common law principles as to criteria and procedures. This development continued in the 19th century. Three of the leading cases which followed the passing of the UK Act dealt with defendants who were deaf mutes. The procedure at the time of these cases was for the court to enquire first, whether the defendant was “mute of malice” or “mute by visitation of God”. If the defendant came into the latter category, the court turned its attention to the issue of fitness to plead.
In R v Dyson (1831) 7 C & P 305(n) a deaf mute was indicted for the murder of her child. Parke J told the jury that:
If they were satisfied that the prisoner had not then, from the defect of her faculties, intelligence enough to understand the nature of the proceedings against her, they ought to find her not sane.
The emphasis which this direction placed on cognitive ability carried over into subsequent cases. In R v Pritchard (1836) 7 C & P 303; 173 ER 135 a deaf mute was charged with a capital felony. After the jury decided that the defendant was mute by visitation of God, they were sworn to try the issue of whether he was able to plead. Baron Alderson directed the jury as follows:
The question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge … There are three points to be inquired into:- First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence – to know that he might challenge any of you to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind.
The approach adopted in the cases of Dyson and Pritchard was approved by the Court for Crown Cases Reserved in R v Berry (1876) 1 QBD 447 where the jury found that the defendant, a deaf mute, was “incapable of understanding” the nature of the proceedings.
These decisions were referred to with approval in The King v The Governor of His Majesty’s Prison at Stafford Ex parte Emery [1909] 2 KB 81, another case in which the defendant was a deaf mute. Lord Alverstone CJ, referring to Berry’s case said at 87:
There was no question there of general insanity, but only of insanity from the point of view of not understanding the nature of the proceedings. The Court held that the prisoner ought not to have been convicted, and ordered him to be kept in custody under s 2 of the Act of 1800 until Her Majesty’s pleasure be known, upon the ground that owing to a defect in his faculties he had not intelligence enough to understand the nature of the proceedings against him and was therefore not sane.
The development of the law to this point was discussed in R v Podola [1960] 1 QB 325 where it was claimed that the defendant was suffering from hysterical amnesia. The trial judge directed the jury that it was their duty to find the defendant fit to stand trial. The Court of Criminal Appeal dismissed an appeal against the finding which was in accordance with this direction. The court approved the approach adopted in Dyson and Pritchard. Lord Parker CJ, delivering the judgment of the court, said at 356:
We agree with the opinions stated and the conclusions arrived at in the case of Russell 1946 SC (J) 37. The word used in the Act of 1800 is the word “insane”. It is true that in the case of a deaf mute the word “insane” does not strictly apply, but as was pointed out by Lord Alverstone CJ in Rex v Governor of Stafford Prison, Ex parte Emery, [1909] 2 KB 81, 84, 85, the practice of including as coming within that word the case of persons who, from mental or physical infirmity, cannot follow what is happening in a case is in accordance with reason and common sense. We cannot see that it is in accordance either with reason or common sense to extend the meaning of the word to include persons who are mentally normal at the time of the hearing of the proceedings against them, and are perfectly capable of instructing their solicitors as to what submission their counsel is to put forward with regard to the commission of the crime.
In Australia, the common law developed along the same lines. The relevant criteria were explained by Smith J in R v Presser [1958] VR 45 in concise and clear terms in the passage quoted in the judgment of Debelle J. This direction was referred to with approval by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 at 8. Smith J’s direction was also referred to in Kesavarajah v The Queen (1994) 181 CLR 230 where Mason CJ, Toohey and Gaudron JJ, in commenting on the test under the Victorian legislation which is in the same terms as s 293 of the repealed South Australian legislation, said at 244:
It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court's duty to determine the accused's fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry (Reg. v. Presser [1958] VR 45; Reg. v Judge Martin; Ex parte Attorney-General (Vict.), [1973] VR 339; Reg. v. Khallouf, [1981] VR 360; R. v. Pritchard, (1836) 7 Car. & P. 303 [173 ER 135]; R. v. Stafford Prison (Governor); Ex parte Emery, [1909] 2 KB 81; R. v. Dashwood, [1943] 1 KB 1; Reg. v. Beynon, [1957] 2 QB 111.). In conformity with the opening words of s 393, which are based on the language of s 2 of the Criminal Lunatics Act 1800 (39 & 40 Geo. III c. 94.), that question is to be determined by a jury specifically empanelled for that purpose. In Sinclair v. The King ((1946) 73 CLR 316 at 334.), Dixon J pointed out that “[i]t does not seem to have been noticed by the textwriters how high a degree of intelligence this test [i.e., the test of insanity] might demand if it were literally applied”. However, it has long been recognized that, in a context such as s 393, the word “insane” does not mean “insane in the colloquial sense” (Presser, [1958] VR at p 48.) or “insane within the M’Naughten Rules” (Ngatayi v. The Queen (1980), 147 CLR 1 at p 7 per Gibbs, Mason and Wilson JJ., citing Reg. v. Podola [1960] 1 QB 325 at p 353). In England, the courts have always applied Alderson B.’s interpretation in R. v. Pritchard (1836) 7 Car. & P. at p 304, [173 ER at p 135]; see Reg. v Berry (1876), 1 QBD 447, at p 450; R v Stafford Prison (Governor); Ex parte Emery, [1909] 2 KB at pp 85-86; Reg. v Podola [1960] 1 QB at p 353) of s 2 of the Criminal Lunatics Act, namely, that “the question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge”. In the context of s 393, the word signifies inability, by reason of some physical or mental condition, to follow proceedings of the trial and to make a defence in those proceedings (Ngatayi (1980) 147 CLR at p 9.). Thus, it has been said that the test needs to be applied “in a reasonable and commonsense fashion” (Presser, [1958] VR at p 48; Ngatayi (1980) 147 CLR at p 8.). The test looks to the capacity of the accused to understand the proceedings and, in some cases, complete understanding may require intelligence of quite a high order (Ngatayi (1980) 147 CLR at p 8.). But it does not mean that the accused is required to have sufficient capacity to make an able defence (Presser, [1958] VR at p 48; Ngatayi (1980) 147 CLR at p 8.).
Some features of the development of the law in the United Kingdom and Australia are worth noting for present purposes. The first is that the purpose of the common law and the relevant legislation was to ensure that a trial would not be rendered unfair by reason of the inability of an accused person to participate in the trial in an appropriate manner.
The second is that the test of unfitness was expressed in a practical manner which had regard to those facets of the trial which required understanding and participation by the accused.
The third feature is that emphasis was placed on the accused’s cognitive ability and any impairment to that ability, whether resulting from a physical or mental condition.
Finally, from the earliest stage of this development, the courts recognised that unfitness to stand trial could occur as a result of an accused being unable to hear and speak. So much so, that the judges were prepared to give the word “insane” in this context a somewhat artificial meaning in order to include this particular condition.
The fact that the common law approach in this respect was so deeply entrenched, and that it existed side by side with the legislation referred to, are considerations relevant to the interpretation of s 269H. In Question of Law Reserved (No 1 of 1997) (1998) 70 SASR 251 at 258 I observed that the interpretation of Part 8A of the Act cannot be divorced from the common law: see also R v Telford (2004) 89 SASR 352 at 364. However, it is my view that the matter goes further in the present case and that it is relevant to have regard to the consideration that:
It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication: Eastman v The Queen (2000) 203 CLR 1 per Gaudron J at [65].
Justice Gaudron was there directing her remarks to the common law principle which guarantees an accused person a fair trial and to what she described as one aspect of the principle which provides that a criminal trial cannot proceed unless the accused is fit to plead.
In my view it would be surprising if Parliament had intended to exclude from the provisions relating to fitness to plead, a condition which has been considered for so long as being appropriate for inclusion within those provisions.
In R v Mailes (2001) 53 NSWLR 251 the New South Wales Court of Criminal Appeal considered whether the Mental Health (Criminal Procedure) Act1990 (NSW) dealing with fitness to stand trial had restricted the circumstances which could render a person unfit to stand trial. In particular, it was necessary to consider whether the wording of the legislation excluded the developmentally or intellectually disabled.
Wood CJ at CL said at [213] - [214]:
It seems to me, in light of the legislative history, and the approach which the common law has consistently taken, concerning the fundamental right for a person placed on trial to have sufficient understanding of the proceedings so as to be able to mount a proper defence, that the Procedure Act should not be read down so as to exclude the developmentally or intellectually disabled. Such a consequence, it seems to me was certainly not intended, and can properly be avoided by an application of the legislative inadvertence rule, as well as by an application of the presumption as to the preservation of the common law previously mentioned.
To otherwise construe the Procedure Act would be to depart from the extended meaning given to the expression “mental illness” in the context of fitness to be tried, that was developed in Pritchard and Dashwood, and confirmed in Presser, Kesavarajah and Eastman; and potentially to negate a fundamental common law principle of fairness that has the authority of recognition over many centuries.
In my view this approach applies also to the present case.
The main purpose of the amendments to the Act in the present case, in so far as they relate to fitness to stand trial was, as the second reading speech makes clear, to reform procedural aspects concerned with the consequences of a finding that a person is unfit to stand trial. Parliament was told “the rules about when a person is or is not ‘fit to plead’ have not caused great difficulty and are preserved in this Bill” (emphasis added).
At the same time, it was considered appropriate to remove from the legislation the outmoded concept of a person “insane so that he cannot be tried on the information”. As has been observed, the manner in which the word “insane” was interpreted so as to include a wider category than would be the case if the word was given its ordinary meaning, strained the meaning of the word. It is my view, therefore, that Parliament intended to replace this terminology with a formula which was more appropriate to describe the impairment of cognitive faculties which had always been accepted as central to the criteria for determining fitness to stand trial.
The criteria in sub-paras (a), (b) and (c) of s 269H follow closely those identified in R v Presser which, in turn, were based on the directions to the jury in R v Pritchard. The same criteria were approved in Kesavarajah v The Queen.
Unlike the repealed s 293, s 269H does not refer to a condition, but rather a consequence, namely, the impairment of the mental processes. The phrase “mental processes” is wide enough to include the activity involved in receiving information as well as retaining and understanding it. The effect of the appellant’s deficits as described by Dr Raeside are capable of constituting a disordering or impairing of the appellant’s mental processes within the meaning of the legislation. Dr Raeside’s evidence is also capable of supporting the conclusion that the further consequences referred to in sub-paras (a), (b) and (c) of s 269H are present. These would be matters to be determined on an inquiry into the appellant’s fitness to plead.
I agree with the views expressed by Besanko J in rejecting the alternative submission that, even if the appellant came within s 269H a permanent stay of proceedings should nevertheless be granted.
In my view the appeal should be dismissed.
DEBELLE J: The question in this appeal is whether a deaf mute who is unfit to plead at his trial should be granted a permanent stay of proceedings or should be tried pursuant to the régime prescribed by Part 8A of the Criminal Law Consolidation Act 1935 (“the Act”).
The appellant was charged in the District Court with committing unlawful sexual intercourse with a person under the age of 12 years, contrary to s 49(1) of the Act. The appellant is a deaf mute. He lost his hearing when he was an infant as a result of contracting meningitis. He is unable to communicate verbally or by sign language and is illiterate. His ability to understand and comprehend matters is severely impaired but he does not suffer from a mental illness. It is common ground that the appellant is unfit to plead.
The appellant applied for a permanent stay of proceedings on the information as an abuse of process. It was submitted on his behalf that the procedures in Part 8A of the Act could not be invoked because his unfitness for trial was the result of factors other than a disorder or impairment of his mental processes. The trial judge found that the appellant fell within the terms of s 269H of the Act so that the procedures in Part 8A of the Act should apply. The trial judge dismissed the application for a stay. The appellant appeals from that decision.
Before examining the terms of s 269H, it is necessary to note the principles relating to unfitness to plead and what the common law provided for the disposition of a deaf mute who is unfit to stand trial.
A person cannot be tried for a criminal offence unless that person is fit to plead to the charge against him: R v Dashwood [1943] KB 1; R v Benyon [1957] 2 QB 111; R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230 at 244. Shortly stated, the principle is that a person should not be put on trial unless he is in a position to comprehend the course of proceedings and to make a proper defence to the charge: R v Pritchard (1836) 7 C & P 303 at 304, 173 ER 135. In R v Presser at 48, Smith J elaborated the minimum standards about which the Court must be satisfied if an accused person is to be tried without unfairness or injustice. Smith J said:
[The accused needs] to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in the court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
These remarks have been approved by the High Court in Kesavarajah at 245 and by Gaudron J and Hayne J in Eastman v The Queen (2000) 203 CLR 1 at 20 and 99 respectively. The effect of the remarks was summarised in Kesavarajah at 245 by Mason CJ, Toohey and Gaudron JJ (with whom Deane and Dawson JJ agreed on this point) in these terms:
In Reg. v. Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v.Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge. (Citations omitted)
As the Court noted, those standards are based on the directions of Alderson B to the jury in R v Pritchard.
A person may not be fit to plead because of mental illness or physical incapacity. A physical incapacity may take a number of forms. The accused may have suffered such substantial head injuries that he is unfit to plead: R v Bradley (No 2) (1986) 85 FLR 111; or the accused may have language difficulties which prevent him from being able to make a good defence and no interpreter is available: R v Grant [1975] WAR 163; Ngatayi v The Queen (1980) 147 CLR at 9 per Gibbs, Mason and Wilson JJ; R v Begum (1985) 93 Cr App R 96. Another instance of physical incapacity which might cause an accused to be unfit to plead is where the accused is a deaf mute. For more than 150 years it has been settled law that a person who is a deaf mute may, depending on the degree of the disability, be unfit to plead: R v Pritchard where Alderson B followed and applied R v Dyson (1831) 7 C & P 305(n).
In R v Dyson and R v Pritchard a deaf mute who was unfit to plead was held to be “insane” within the meaning of the Criminal Lunatics Act 1800 (UK) and was ordered to be kept in custody at the pleasure of the Crown. When it is understood that the accused in both Dyson and Pritchard were charged with a capital felony, the apparent severity of the order to keep them in custody at the pleasure of the Crown is ameliorated. Notwithstanding developments in medical science and the reduction in the number of capital felonies, the principle stood. In R v Berry (1876) 1 QBD 447, a deaf mute charged with larceny who did not have “intelligence enough to understand the nature of the proceedings” was held not to be sane. Lush J said (at 451):
If it appears at any time during the trial that the prisoner is of non-sane mind, the proper course is to stop the trial and direct him to be detained during the Queen’s pleasure. On that I base my judgment. Such course was adopted in the present case. I understand the finding of the jury, that the prisoner was not capable of understanding, and, as a fact, had not understood, the nature of the proceedings, to mean that the prisoner has not sufficient intellect to understand the nature of the proceedings.
In R v Governor of Stafford Prison; ex parte Emery, [1909] 2 KB 81 Lord Alverstone CJ noted that the practice had long existed of including within the word “insane” persons who, for mental or physical infirmity, could not follow what was happening in a case. See also R v Podola [1960] 1 QB 325 at 356.
In Kesavarajah the High Court had to consider the meaning of the word “insane” in s 393 of the Crimes Act 1958 (Vic). The Court explained that, in that context, the word “insane” is not used in a colloquial sense but has an extended meaning which includes an accused person who does not have sufficient understanding to comprehend the nature of the trial so as to make a proper defence to the charge. Mason CJ, Toohey and Gaudron JJ (with whom Deane and Dawson JJ agreed) said:
However, it has long been recognized that, in a context such as s. 393, the word “insane” does not mean “insane in the colloquial sense” or “insane within the M’Naughten Rules”. In England, the courts have always applied Alderson B.’s interpretation in R. v. Pritchard of s. 2 of the Criminal Lunatics Act, namely, that “the question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge”. In the context of s. 393, the word signifies inability, by reason of some physical or mental condition, to follow proceedings of the trial and to make a defence in those proceedings. (Citations omitted)
That was the common law position. It had the consequence that a person who was unfit to plead because he was a deaf mute was liable to be detained at the pleasure of the Crown.
Until the Act was amended by the Criminal Law Consolidation (Mental Impairment) Act 1995, the provisions relating to the fitness of insane persons to plead were regulated by s 293 of the Act. Section 293 was in very similar terms to s 2 of the Criminal Lunatics Act 1800 in England. It was obviously modelled on the English provision. A person found to be unfit to plead by reason of insanity was by s 293(2) to remain in custody until the Governor’s pleasure was known. In 1972 s 293a was inserted into the Act. It enabled the Governor to release on licence a person found to be insane. In my view, the extended common law definition of “insane” stated in Kesavarajah applied to s 293 so that it signified inability, by reason of any physical or mental condition, to follow proceedings of the trial and to make a defence in those proceedings. Thus, a deaf mute found to be unfit to plead would, by reason of the extended meaning of “insane”, be subject to the régime in s 293 and s 293a.
That was the position in 1995 when the Parliament enacted the Criminal Law Consolidation (Mental Impairment) Act (“the amending Act”) and inserted Part 8A into the Act. Part 8A included s 269H which defined a person who is mentally unfit to plead. It provided:
269H 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.
It will have been noticed that paras (a) – (c) of s 269H to a significant extent repeat the criteria for determining whether a person is fit to plead which were listed by Smith J in R v Presser and were summarised by the High Court in Kesavarajah. It is readily apparent that s 269H has been drawn so that mental unfitness for trial would be determined by the criteria at common law.
The effect of the new régime in Part 8A is that, if an accused is unfit to plead, the Court must then determine whether the objective elements of the offence are established. If they are, the Court must declare the accused to be liable to supervision under Part 8A of the Act: see s 269M. The provisions of Part 8A and, in particular s 269A to s 269VA, enable the Court to make a variety of orders, orders which can be tailored to deal more effectively with a particular disability of an accused than had existed under the earlier legislation.
It will also have been noticed that s 269H is intended to apply only in respect of persons whose mental processes are disordered or impaired. The effect and operation of s 269H is to define a person who is mentally unfit to stand trial. It is concerned with mental disability. It is possible to envisage a person who suffers from a physical disability caused by injury, illness or other condition which might so affect his mental processes that the criteria in s 269H are satisfied and that person is therefore unfit to plead. However, s 269H is not otherwise concerned with physical disability and, in particular, those kinds of physical disability which do not cause an impairment of mental processes but, nevertheless, lead to a verdict that a person is unfit to stand trial.
The judge below grounded his conclusion that the appellant fell within s 269H on the fact that deaf mutes were regarded by the common law as insane. He relied on the decisions in Pritchard and Kesavarajah and other like decisions. As Duggan J noted in Question of Law Reserved (No 1 of 1997) (1998) 70 SASR 251 at 258, the interpretation of what now constitutes Part 8A of the Act cannot be divorced entirely from the common law as it had developed until the passage of the amending legislation. However, that does not lead to the conclusion that a deaf mute is a person who falls within s 269H.
It might be an oversimplification to state that the common law regarded a deaf mute as insane. The decision in Pritchard was that the accused was, by reason of being a deaf mute, unfit to plead. Upon that verdict being returned, he was dealt with in the same way as an insane person and detained at the pleasure of the Crown. The decision in Kesavarajah did no more than point out that the word “insane” in provisions such as s 393 of the Crimes Act (Vic) (and in s 293 of the Criminal Law Consolidation Act of this State) signified inability, by reason of some physical or mental condition, to follow the proceedings of the trial and to make a defence in those proceedings. In the result, the disposition of a deaf mute accused might be the same as that of a mentally ill person. Nevertheless, a distinction must be drawn between the finding that a person is unfit to stand trial and the consequences of that finding. Although the common law caused a deaf mute found to be unfit to plead to be detained at the pleasure of the Crown in the same way as an insane person, it does not follow that that person falls within s 269H. Similarly, even if it is correct to say that the common law held that a deaf mute who was unfit to plead was insane, it does not follow that it is intended that s 269H applies to that person. The operation of s 269H is confined, quite explicitly, to those whose mental processes are so disturbed or impaired that they have the disabilities listed in paras (a) – (c) of s 269H. There is nothing in s 269H which indicates in any way an intention to operate in respect of those whom the common law had treated as insane only because a physical condition prevented a sufficient understanding of the trial. Given the evidence that the appellant’s mental processes are not disturbed, there is no ground which brings the appellant within s 269H.
The same conclusion may be reached another way. As Lord Reid emphasised in Black-Clawson Ltd v Papierwerke AG [1975] AC 591 at 613, the task of statutory construction is more accurately described as seeking the meaning of the words used by the Parliament than as a search for the intention of the Parliament. He said:
We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.
Lord Simon of Glaisdale (at 645) expressed the same view in these terms:
Courts of construction interpret statutes with a view to ascertaining the intention of Parliament expressed therein. But, as in interpretation of all written material, what is to be ascertained is the meaning of what Parliament has said and not what Parliament meant to say.
See also Brennan J in Sorby v The Commonwealth (1983) 152 CLR 281 at 322 and Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322. The Parliament has amended the law relating to the criminal liability of those who suffer from mental illness. When providing for the issue of unfitness to plead, it has limited the operation of the Act to those who suffer from a disorder or impairment of mental processes. If this Court were to conclude that a deaf mute whose mental processes are not impaired falls within the terms of s 269H and is subject to the régime in Part 8A of the Act prescribed for persons who are mentally impaired, the Court would be declaring what it believed the Parliament intended to say and departing from its task of determining the meaning of what Parliament has in fact said.
Mr Brebner QC submitted that an examination of the second reading speech by the Attorney-General when introducing the Bill which inserted Part 8A into the Act disclosed the purpose of the amendments and removed doubts as to the operation of s 269H. It is permissible for the Court to look at the second reading speech in order to identify the mischief which the amendments sought to rectify and to determine their purpose: Owen v South Australia (1996) 66 SASR 251 per Cox J at 255 – 256. The second reading speech begins in this way:
The special provisions of the criminal law dealing with major issues which arise when a person suffering from a mental illness comes before the courts of this State are to be found almost entirely in the common law. In general terms, the two major issues are the law concerning what is known as “fitness to plead” and the law dealing with what is generally known as the “defence of insanity”.
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 and defence and hence is not fit to plead is due to a mental illness of some kind. But, again, that is not invariably so. A person with a severe intellectual disability may also be in that position. Recently a court in South Australia ruled a person unfit to plead due to severe physical illness. Moreover, there are cases on record where an accused has been found unfit to plead due to a combination of strong language and cultural differences.
The rules about when a person is or is not “fit to plead” have not caused great difficulty and are preserved in this Bill. The same, however, cannot be said of the consequences of being found unfit to plead.
The Attorney-General then proceeds to deal with other issues.
It is apparent from the first paragraph of that speech that the purpose of the legislation is to address the provisions of the criminal law relating to persons suffering mental illness. As is apparent from what the Attorney said following the remarks which have been quoted above, the overall purpose of the Bill was to provide an improved régime for dealing with the criminal culpability of persons suffering from mental illness and for treating such persons if it is established that the objective elements of the offence exist. A subsidiary purpose was to deal with the question of fitness to plead and the consequences of a verdict that an accused person was not fit to plead. Contrary to the submissions of Mr Brebner, the second reading speech does not express any intention in the legislation to address the question of fitness to plead caused by factors other than impairment of mental processes. The references in the latter part of the second paragraph of the remarks quoted above to instances where it had been held that a person was unfit to plead are mentioned for the purpose of illustrating the assertion in the next paragraph that the rules as to when a person is fit to plead have not caused great difficulty. The statement that those rules “are preserved in this Bill” is correct but they are preserved only for the purpose of determining whether the mental impairment results in the accused being unfit to plead. The last sentence in the extract quoted above, when read with what follows in the speech, demonstrates that one of the purposes of the Bill is to address the consequences of a finding that an accused by reason of mental impairment is unfit to plead.
Later in the second reading speech the Attorney-General identified seven aspects of the Bill. It is necessary to refer only to the first six. He said:
In general terms, the Bill is intended to achieve the following reforms –
(1)It defines “mental illness” using the words chosen for the purpose by the High Court. In particular, the definition includes severe personality disorders for the purposes of ascertaining criminal responsibility and to encompass the situation in which the accused is unable to control his or her conduct due to mental illness;
(2)It defines the roles of judge and jury;
(3) It isolates the question of fitness to plead or mental impairment from other questions which may be at issue in the case so that the judge and jury may concentrate on the issues affecting those fundamental questions;
(4) It ensures that if the question of fitness to plead or mental impairment is raised, the court must first be satisfied that there is sufficient evidence available that the accused actually committed the acts in question;
(5) It empowers a court which finds that the accused is unfit to plead or was not criminally responsible (due to mental impairment) to make the most appropriate disposition with respect to each accused, including detention or a community based treatment program;
(6) It requires a court to set a limit to the exposure of the accused to any supervision order made, the limit being fixed in relation to the penalty which would have been applicable had the accused been found guilty of the offence with which he or she is charged.
The use of the expressions “fitness to plead or mental impairment” in paras (3) and (4) and the use of “fitness to plead” in para (5) might, when standing alone, suggest that the Bill is intended to deal with all disabilities, both physical or mental, which cause an accused to be unfit to plead. However, when regard is had to the second reading speech as a whole and in particular the passage quoted earlier, it is clear that fitness to plead is being dealt with in the context of mental impairment only.
There is another aspect of Part 8A which indicates that it applies only where unfitness to plead results from impairment of mental processes. If the objective elements of the offence are established, the Court is required by s 269M to declare the defendant to be liable to supervision under Part 8A. The Court may then either release the defendant unconditionally or make a supervision order which either commits the defendant to detention or releases the defendant on licence: see s 269O. If a supervision order is made, Part 8A provides a régime for reporting on the mental condition of the defendant: see s 269Q, s 269T and s 269U. Reports on mental condition are not consistent with the defendant being unfit to plead by reason of a physical condition which does not cause a disorder or impairment of mental processes.
For these reasons the appellant does not fall within the terms of s 269H.
Given that the appellant does not fall within s 269H, what orders should be made? There is clear evidence the appellant is unfit to plead because of his physical disability and his inability to communicate and understand things. The common law guarantees an accused person a fair trial according to law and, one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead: Eastman v The Queen (2000) 203 CLR 1 at 23 [64] per Gaudron J. It is well settled that there can be no trial of a person who is unfit to plead. It is equally well settled that the Court has an inherent jurisdiction permanently to stay proceedings to prevent an abuse of its processes: Barton v The Queen (1980) 147 CLR 75 and Jago v District Court of NSW (1989) 168 CLR 23. The power to do so will be exercised in exceptional cases only: Barton at 97 per Gibbs ACJ and Mason J with whom Aickin J agreed and at 116 per Wilson J with whom Murphy J agreed. The decision whether to order a permanent stay requires a balancing of the interests which are at stake – on the one hand, the interests of the accused in obtaining a fair trial and, on the other, the community’s right to expect that persons charged with criminal offences are brought to trial: Barton at 102 - 106 and Jago at 32.
The appellant cannot receive a fair trial because he is unfit to plead. He is not able to understand the nature of the charge or the nature of the proceedings. He is not able to follow the course of the evidence or to make a defence. The interests of the community in expecting that accused persons are brought to trial must be weighed with the community’s expectations that trials will be fair. The interests of the victim must also be considered but, here again, those interests cannot prevail over the principles relating to a fair trial. It is quite uncommon for deaf mutes to be charged with criminal offences, sufficiently uncommon for it to be regarded as an exceptional circumstance justifying a permanent stay. In any event Parliament may, if it chooses, introduce further amendments to the Act to provide for deaf mutes who are unfit to plead.
The effect of Mr Brebner’s argument, when shortly stated, is that, because the common law had determined that a deaf mute who is unfit to plead was to be treated in the same way as an insane person, Parliament must have intended to include a deaf mute within the meaning of s 269H. That is to seek to apply today a principle developed almost 170 years ago. As McHugh J noted in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298 [28], while there are a number of fundamental legal principles which are not affected by the passage of time or changes in community values, care must be taken when determining what is a fundamental legal principle. Certainly the status of a deaf mute who is unfit to plead could not fall within that category. Times change. Modern medical science provides a greater depth of understanding of physical and mental incapacity. The community believes that there are more satisfactory methods of dealing with those who suffer from serious mental or physical affliction than detention at the pleasure of the Governor. Although the régime for dealing with persons who suffer from mental illness has significantly improved, it cannot be presumed that a Parliament today would intend to treat a deaf mute who is found to be unfit to plead in the same way as a person who suffers from mental illness. A deaf mute will only fall within s 269H if his physical condition causes an impairment of his mental processes in the way provided in that section.
For these reasons I would allow the appeal. I would set aside the orders in the District Court and, in their place, substitute an order that there be a permanent stay of the proceedings on the information.
BESANKO J This appeal raises a short but important point about the proper construction of s 269H of the Criminal Law Consolidation Act 1935 (“CLCA”).
The section appears in Part 8A of the CLCA and that Part of the Act deals with mental impairment. Division 1 of Part 8A deals with preliminary matters. Division 2 deals with mental competence to commit offences and Division 3 deals with mental fitness to stand trial. Section 269H is in Division 3. Division 4 deals with the disposition of persons declared to be liable to supervision under the Part. Division 5 deals with miscellaneous matters.
Section 269H is in the following terms:
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.
The sections which follow s 269H provide for an investigation or trial of the defendant’s mental fitness to stand trial and a trial of the objective elements of the offence. The culmination of the process is that the defendant may be declared liable to supervision under Part 8A and dealt with in accordance with the provisions of Division 4 of that Part.
Various terms are defined for the purposes of Part 8A. “Mental processes” is not a term which is defined. The terms “mental illness” and “mental impairment” are defined in s 269A as follows:
mental illness means a pathological infirmity of the mind (including a temporary one of short duration)1;
mental impairment includes—
(a) a mental illness; or
(b) an intellectual disability; or
(c) a disability or impairment of the mind resulting from senility,
but does not include intoxication;
Note—
1 A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30).
Under the CLCA a note to a section or subsection forms part of the text of the Act unless the note clearly has no substantive effect: s 5(2).
The term “mental impairment” is used in s 269C, which is the section that defines mental incompetence to commit an offence.
The facts are set out in the reasons for judgment of Debelle J and I will repeat them only to the extent necessary to explain my reasons. The appellant applied for a permanent stay of the proceedings on the information on the basis that on the evidence it was not open to the Court to find that the appellant fell within the terms of s 269H and that therefore, it was not open to the Court to deal with him under Division 3 of Part 8A of the CLCA.
There is no dispute that the appellant is a person who satisfies the criteria in paragraphs (a), (b) and (c) of s 269H. The dispute is whether it is open to the Court to find that those disabilities result from his “mental processes” being “disordered or impaired” within the terms of the section. If the answer is yes, then he is to be dealt with in accordance with Division 3 and the other relevant sections in Part 8A. If the answer is no, then I agree with Debelle J for the reasons he gives that a permanent stay of proceedings on the information should be ordered.
I have reached the conclusion that it is open to the Court to find that the appellant falls within the terms of s 269H.
It is important to state at the outset the facts concerning the appellant’s condition. The trial judge had two reports, one from a forensic psychiatrist, Dr C Raeside, dated 6 April 2004, and the other from a speech pathologist, Ms H Baron, dated 5 October 2004. The judge made a number of findings based on those reports.
The appellant is a 21-year-old aboriginal man who is deaf and mute. He lost his hearing when he was an infant as a result of contracting meningitis. He is unable to communicate verbally or by sign language and is illiterate. The judge found that the appellant’s ability to understand and comprehend matters is severely impaired. The judge found that the appellant does not suffer from a mental illness. It is not clear whether the judge was using that term according to the ordinary meaning of the words or whether he had in mind the definition of “mental illness” in s 269A.
The appellant sought to rely on a further report from Dr Raeside, which was prepared after the trial judge’s ruling, and which addresses Dr Raeside’s understanding of the term “mental processes”. I have read the report carefully, but I do not think that it is of much assistance because ultimately the question is one of statutory construction.
The statutory precursor to s 269H of the CLCA
The statutory precursor to s 269H of the CLCA was s 293 of the CLCA. That section was repealed upon the introduction of Part 8A. Section 293 was in the following terms:
293. (1) Where any person charged with an indictable offence is insane, so that he cannot be tried on the information, and is so found either –
(a) by a jury lawfully empanelled for that purpose; or
(b) by the jury empanelled to try the information,
the court shall direct him to be kept in strict custody until the Governor’s pleasure be known.
(2) Where any person charged with an indictable offence and brought before any court to be discharged for want of prosecution appears to be insane, it shall be lawful for the court to order a jury to be empanelled to try the sanity of such person, and if the jury finds him to be insane the court may order him to be kept in strict custody in such place and in such manner as it thinks fit, until the Governor’s pleasure be known.
(3) The Governor may order the safe custody, during his pleasure, of any person found to be insane in any of the cases mentioned in this section, in such place and in such manner as he thinks fit.
Section 293 was modelled on s 2 of the Criminal Lunatics Act 1800 (UK) which for present purposes was in similar terms. It was well-established by the authorities that the word “insane” in s 293 did not mean insane in the colloquial sense or insane within the M’Naughten Rules: Ngatayi v The Queen (1980) 147 CLR 1 (“Ngatayi”) per Gibbs, Mason and Wilson JJ at 7; Kesavarajah v The Queen (1994) 181 CLR 230 (“Kesavarajah”) per Mason CJ, Toohey and Gaudron J at 244 – 245. The question of insanity under s 293 raised issues as to whether the prisoner had sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defence, to know that he might challenge any member of the jury to whom he may object and to understand the details of the evidence: R v Pritchard (1836) 7 C & P 303; 173 ER 135 (“Pritchard”); R v Presser [1958] VR 45. It was also well-established by the authorities that insanity in this sense might arise not only by reason of a mental condition, but also by reason of a physical condition and that the physical condition might be the inability to hear and to speak: Ngatayi per Gibbs, Mason and Wilson JJ at 7; Kesavarajah per Mason CJ, Toohey and Gaudron JJ at 244; Eastman v The Queen (2000) 203 CLR 1 per Gaudron J at p 21; R v Sexton (2000) 77 SASR 405; Pritchard; R v Podola [1960] 1 QB 325.
I do not think there can be any doubt that, on the facts of this case, had the repealed section applied, it would have been open to the Court to find that the appellant was insane within the terms of the section and to deal with him accordingly.
The proper interpretation of s 269H
In my opinion, the term “mental processes” should be given a wide meaning and includes the ability to receive information, process it and respond to it. If that ability or function of the mind is impaired or disordered then the defendant’s mental processes are disordered or impaired within s 269H and it matters not if the impairment of the ability or function results from a physical condition. I leave to one side cases where the ability or function is impaired only in certain circumstances such as the absence of an interpreter. Those situations are often only temporary and will have to be dealt with as they arise.
I am of the opinion that the term “mental processes” should be given a wide meaning for the reasons which follow.
First, the meaning I favour is a meaning that the words will bear. The function of the mind may be affected by a number of outside circumstances and there is no reason to restrict the term “mental processes” to physical damage to the brain or a psychiatric illness. This conclusion is reinforced by the fact that in s 269H Parliament used the term “mental processes” and did not use either of the defined terms “mental illness” or “mental impairment”.
Secondly, the law existing at the time the section was introduced is relevant. At that time a person who was deaf and mute was characterised as insane within s 293 of the CLCA. The authorities show that the word “insane” was given a wide meaning. It is significant that the disabilities or incapacities identified in paragraphs (a), (b) and (c) of s 269H bear a closer correspondence to the tests developed in the cases as to the meaning of “insane” in s 293 of the CLCA and s 2 of the Criminal Lunatics Act 1800 (UK). That suggests that Parliament did not intend to change the existing law. Furthermore, it is not lightly to be assumed that Parliament sought to change the law in circumstances where the result would be that a person in the position of the appellant would not be dealt with by the criminal law or under the provisions of Part 8A. Criminal charges against him would be permanently stayed.
Thirdly, the permissible use of the Second Reading Speech of the Attorney-General at the time he introduced Part 8A either confirms these conclusions, or, at the very least, is neutral as to the proper interpretation of s 269H.
The use that may be made of a Second Reading Speech was considered in two recent decisions of this Court: Owen v State of South Australia (1996) 66 SASR 251; Burch v SA (1998) 71 SASR 12. Two points may be made. First, it is no longer a condition of the common law that the mischief rule may only be applied if there is an ambiguity in the text of the Act. The Court may have regard to the Second Reading Speech in order to ascertain the mischief. Secondly, generally speaking, regard may be had to the Second Reading Speech only to ascertain the mischief Parliament was intending to address. In this case, the relevant passages in the Second Reading Speech are as follows:
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 and defence and hence is not fit to plead is due to a mental illness of some kind. But, again, that is not invariably so. A person with a severe intellectual disability may also be in that position. Recently, a court in South Australia ruled a person unfit to plead due to severe physical illness. Moreover, there are cases on record where an accused has been found unfit to plead due to a combination of strong language and cultural differences.
The rules about when a person is or is not “fit to plead” have not caused great difficulty and are preserved in this Bill. The same, however, cannot be said of the consequences of being found unfit to plead.
…
The defects of the common law may be summarised as follows:
(1) The current law operates badly—
×accused people avoid the defence of insanity except where the offence is very serious indeed, because the result of a “successful” defence is indefinite detention;
.the legislation is archaic and offensively worded and is, in many respects, ignored in practice;
.those detained as mentally ill under the criminal law have few effective rights.
The result of all of this is that the role of mental impairment and intellectual disability in the criminal justice system is massively understated with consequent personal and systemic injustice.
(2)Other jurisdictions in this country have acted to reform their laws on the subject. While the results cannot be described as uniform, there are common themes. Most importantly, the Commonwealth enacted substantial reforms in 1989 and, unless South Australia acts to achieve some kind of consistency, it will result in drastically different treatment for State and Federal detainees. The Government is not urging complete uniformity but some degree of fair consistency is highly desirable.
(3)It is highly likely that the current law in this State is contrary to the International Covenant on Civil and Political Rights. In addition, the current state of the law does not conform to the UN Draft Guidelines and Principles for the Protection of the Mentally Ill. These matters have been detailed with considerable force by the Burdekin report.
…
In general terms, the Bill is intended to achieve the following reforms—
(1)It defines “mental illness” using the words chosen for the purpose by the High Court. In particular, the definition includes severe personality disorders for the purposes of ascertaining criminal responsibility and to encompass the situation in which the accused is unable to control his or her conduct due to mental illness;
(2) It defines the roles of judge and jury;
(3)It isolates the question of fitness to plead or mental impairment from other questions which may be at issue in the case so that the judge and jury may concentrate on the issues affecting those fundamental questions;
(4)It ensures that if the question of fitness to plead or mental impairment is raised, the court must first be satisfied that there is sufficient evidence available that the accused actually committed the acts in question;
(5)It empowers a court which finds that the accused is unfit to plead or was not criminally responsible (due to mental impairment) to make the most appropriate disposition with respect to each accused, including detention or a community based treatment program;
(6)It requires a court to set a limit to the exposure of the accused to any supervision order made, the limit being fixed in relation to the penalty which would have been applicable had the accused been found guilty of the offence with which he or she is charged;
(7)It retains the 1992 reforms sponsored by the Hon Dr Ritson, with some tidying up and clarification of the roles and responsibilities of those participating in the system who have legal responsibilities in relation to such people.
If regard is had to the Attorney-General’s statement of the defects of the common law, and the reforms Part 8A was designed to effect, as identifying the mischief, it seems to me to be quite clear that nothing about the existing law as to the meaning of fitness to plead was part of the mischief Part 8A was designed to remedy. In my opinion, I can have regard to that. The statement by the Attorney-General that “the rules about when a person is or is not ‘fit to plead’ have not caused great difficulty and are preserved in [the] Bill” make it clear that a change to the scope of the existing law as to the meaning of fitness to plead was not part of the mischief Part 8A was designed to remedy. Whether it is permissible for me to have regard to that statement is perhaps debatable, but it matters not in this case because the statement simply confirms the construction of the section which I think is the proper one.
In my opinion, it is open to the Court to find that the appellant’s mental processes are disordered or impaired within the provisions of s 269H.
Counsel for the appellant put an alternative submission to the effect that even if the appellant fell within the terms of s 269H and therefore was not mentally fit to be tried, nevertheless a stay should be granted because the appellant could not give instructions in relation to a trial of the objective elements of the offence. I reject this submission. It seems to me that that would invariably be so and that there is no room for the operation of the doctrine of abuse of process where Parliament make specific provision for the consequences of a particular state of affairs and there are otherwise (as in this case) no special or unusual circumstances.
Conclusion
In my opinion, the appeal should be dismissed.
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