R v Abdulla - [2005] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ABDULLA
Ruling of His Honour Judge Millsteed
30 May 2005
CRIMINAL LAW
Application to stay proceedings – applicant deaf and mute – unfit to plead – applicant's condition covered by s269H Criminal Law Consolidation – applicant to be dealt with in accordance with Division 3 of Part 8A of Criminal Law Consolidation Act – application for stay dismissed.
Criminal Law Consolidation 1935 s49(1), referred to.
Eastman v The Queen (2000) 74 ALJR 915; Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; R v Sexton (2000) 77 SASR 405; R v WRC (2003) 59 NSWLR 273; Question of Law Reserved (No 1 of 1997) 70 SASR 251; R v Podola [1960] 1 QB 325; Ngatayi v The Queen (1980) 147 CLR 1; R v Pritchard (1836) 7 C & P 303 (173 ER 135); R v Berry (1876) 1 QBD 447; R v Dyson (1831) 7 C & P 305 (173 ER 135); R v Stafford Prison (Governor) Ex parte Emery [1909] 2 KB 81; R v Roberts [1953] 2 All ER 340; R v Kovalky [1895] 6 QLJR 219; Ebatarinja v Deland (1998) 194 CLR 444, considered.

R v ABDULLA
[2005] SADC 61
Introduction

The applicant Scott Brett Abdulla is charged on information with unlawful sexual intercourse with a person under 12 years contrary to s49 (1) of the Criminal Law Consolidation Act 1935 (“CLCA"). By notice dated 15 February 2005 the applicant has applied for an order permanently staying proceedings on the information as an abuse of process. The application was heard by me on 19 May 2005. The applicant was represented by Mr Boucaut of counsel. Ms Mealor appeared for the Director of Public Prosecutions (DPP). The DPP opposed the application.
Factual background
The facts upon which the application is based are as follows. The applicant is a 21 year old aboriginal. He is deaf and mute. He lost his hearing when he was an infant as a result of contracting meningitis. On the hearing of the application two expert reports were put before me. The first is a report from Dr Craig Raeside, a forensic psychiatrist, dated 6 April 2004. The report was procured by Mr Abdulla’s legal representatives. The second is a report from Dr Heather Baron a Senior Speech Pathologist with the Royal Adelaide Hospital dated 5 October 2004, which was ordered by the Court pursuant to s269WA of the CLCA.
The reports disclose that the applicant is unable to communicate verbally or by sign language and is illiterate. Consequently, his ability to understand and comprehend matters is severely impaired. However he does not suffer from a mental illness.
Both Dr Raeside and Dr Baron are of the opinion, and the DPP accepts, that the applicant is unfit to plead and to be tried on the information. In his report Dr Raeside states (p7):
“… I found no evidence to suggest that Mr Abdulla has or does now suffer from any mental illness. However, in my opinion he is unfit to plead, instruct, or stand trial because of his hearing and speech difficulties. Communication is significantly difficult and whilst he is able to understand and communicate some things, he would be unable to adequately follow the course of any proceedings in court, instruct his lawyer, or weigh any evidence against him in a meaningful way. Therefore, I believe that he would be significantly disadvantaged in offering a defence to the charges because of his physical incapacity.”
In her report Dr Baron states (p2):
“In reference to the relevant section of legislation from the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (s269H) provided me, it is my opinion that Scott is unfit to stand trial. He would not be able to understand or respond to the charge against him. He would not be able to reliably exercise his procedural rights during that process, nor reliably give instructions to his lawyer and he would not be able to understand the course of proceedings during a trial in court.”
The applicants argument
Mr Boucaut submitted that in light of the accused’s condition it would be manifestly unfair for proceedings on the information to be continued and for that reason the proceedings against the applicant should be permanently stayed. He argued that the special procedures governing fitness to stand trial contained in Division 3 of Part 8A of the CLCA did not apply because the applicant’s unfitness was the result of factors other than disorder or impairment of the mental processes.
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 for trial: Eastman v The Queen (2000) 74 ALJR 915 per Gaudron J at 924-925[64]. It is well established that if an accused person cannot receive a fair trial, for any reason, the court has an inherent jurisdiction to permanently stay proceedings as an abuse of process: Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23.
The inherent jurisdiction of the court to stay proceedings is not abrogated by Division 3 of Part 8A of the CLCA: R v Sexton (2000) 77 SASR 405. However, in deciding whether to grant a permanent stay significant weight must be attached to the fact that there exists a special procedure, created by Division 3, for determining whether a person is mentally unfit to stand trial. If an accused person falls within the ambit of s269H, then absent some overwhelming countervailing reason, the procedures contained in Division 3 should be invoked: see R vWRC (2003) 59 NSWLR 273. As Spigelman CJ said in WRC (at 282):
“Where, as here, a specific statutory procedure with a different decision–maker, is laid down for the determination of the matter primarily relied upon for purposes of a permanent stay, it is difficult to conceive a circumstances in which it would be appropriate to find that the continuation of proceedings, which will involve the determination of that question by that procedure, should at that point be stayed, on the basis that any further proceedings would constitute an abuse of process. The Court should permit the special procedure to operate in accordance with its terms, unless there is some overwhelming reason for not allowing that to happen. There was no evidence of that character before his Honour. The medical evidence was not of that character.”
The criteria for determining mental fitness to plead is contained in s269H of the CLCA which states:
“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 is not in dispute that the applicant satisfies the criteria contained in placita (a) (b) and (c). The critical question is whether the applicant qualifies as a person whose mental processes are disordered or impaired.
A determination of the legislatures conception of disordered or impaired mental processes cannot be divorced from a consideration of the pre-existing law: see Question of Law Reserved (No 1 of 1997) 70 SASR 251 per Duggan J at 258.
Section 293(1) of the CLCA, the predecessor of Division 3, provided that a person charged with an indictable offence was subject to detention if a jury found that he was “insane, so that he cannot be tried on the information”. The language in s293, and similar interstate legislation, was taken from s2 of the Criminal Lunatics Act 1800 (UK). Section 293 and its English progenitor did not define the meaning of insanity but merely stated the procedure for determining that issue (empanelment of a jury) and the consequence of a finding that a person was “insane” (indeterminate detention). The meaning of insanity for the purpose of these provisions was determined by the common law: see R v Podola [1960] 1 QB 325 at 352. It is clear from the case law that “insane” did not mean insane in the colloquial sense or insane within the meaning of the M’Naghten Rules: Ngatayi v The Queen (1980) 147 CLR 1 at 7; R v Podola (at 353).
In the leading case of R v Pritchard (1836) 7 C & P 303 (173 ER 135) the issue of fitness to plead arose in circumstances where the accused was a deaf mute who could not communicate. Alderson B instructed the jury as follows (304; 135):
“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 jurors] to whom he may object – and to comprehend the details of the evidence ... 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. It is not enough, that he may have a general capacity of communicating on ordinary matters.”
Pritchard is in one of several decisions in which deaf mutes, with an insufficient understanding or comprehension to plead or to be tried were regarded as “insane” for the purposes of s2 of the Criminal Lunatics Act: see R v Berry (1876) 1 QBD 447; R v Dyson (1831) 7 C & P 305 (173 ER 135); R v Stafford Prison (Governor) Ex parteEmery [1909] 2 KB 81; R v Roberts [1953] 2 All ER 340; R v Kovalky [1895] 6 QLJR 219. That line of authority is, as far as I am aware, uninterrupted by any decision to the contrary.
The principles expressed in Pritchard were approved by the English Court Of Criminal Appeal in Podola Lord Parker CJ for the Court said (at 353):
“The words “If any person ... shall be insane ... so that “such person cannot be tried upon such indictment” contained in section 2 of the Act of 1800 have in many cases since 1800 been construed as including persons who are not insane within the M’Naughten Rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings. A well known illustration is that of a deaf mute who is also unable to write or to use and understand sign language.” (My emphasis).
In Ebatarinja v Deland (1998) 194 CLR 444 the High Court considered that an aboriginal deaf mute could not legally be the subject of a committal hearing but the issue of his fitness to plead could, upon the filing of an ex officio indictment, be determined under the provisions of s357 of the Criminal Code (NT). Under that provision a person is unfit to plead if he or she is incapable of understanding proceedings “for any reason”. The ambit of this provision is obviously wider than s269 H and its predecessor s 293(1). For that reason the decision in Ebatarinja is, in my view, of little assistance in the present case.
In Ngatayi v The Queen (1980) 147 CLR 1 the High Court considered the meaning of s 631 of the Criminal Code (WA). That provision also provided that an accused person could be detained if “for any reason” he was incapable of understanding the proceedings at the trial. Gibbs, Mason and Wilson JJ held that a person who did not speak English would fall within the ambit of the provision if an interpreter could not be found for him. In reaching that conclusion their Honours referred with approval to the principles expressed in Pritchard and Podola in the context of s2 of the Criminal Lunatics Act.
Their Honours said (7):
“In R v Pritchard the prisoner was not insane but deaf and dumb. And the words of s 2 of the Criminal Lunatics Act “have in many cases since 1800 been construed as including persons who are not insane within the M’Naughten Rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defe3nce in those proceedings”: Reg v Podola. The Codes, however have set the words of Alderson B. in a context which has no necessary reference to insanity or to incapacity arising from a physical or mental condition. The incapacity to which s 631 refers may arise “for any reason”. It need not be due to any physical or mental condition. For example, if the prisoner cannot speak English, and no interpreter can be found who can translate the proceedings into his tongue, the section would seem to apply. In Reg v Grant Wickham J. Directed a preliminary issue to be tried under s 631 where the accused was an aboriginal who did not understand English and it appeared that the interpreter and the accused had difficulty in communicating with each other and that it was impossible to convey to the accused an adequate synonym in his dialect of the terms “unlawful”, “guilty” and “not guilty”, or to explain their meanings to him. Under s 631 if the jury find that the accused is not capable of understanding the proceedings, the court may order him to be discharged or to be kept in custody until he can be dealt with according to law. If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such case no doubt he should be discharged. In fact in Reg v Willie, Cooper J. ordered the discharge of four aboriginals when no interpreter could be found competent to communicate the charge to them. The report does not however disclose the authority, statutory or otherwise, for taking this course.”
This passage clearly acknowledges that incapacity arising from a physical condition (including deafness and mutism) or mental condition, as distinct from incapacity due to other factors such as the need for an interpreter, constituted insanity for the purposes of s2 of the Criminal Lunatics Act and kindred legislation such as s293(1) CLCA.
In Kesavarajah v The Queen (1994) 181 CLR 230 the High Court considered the meaning of “insane” in s393 (1) Crimes Act (Vict). This provision is expressed in similar terms to s293(1) CLCA). Mason CJ, Toohey and Gaudron JJ said (at 244):
“ [I]t has long been recognised that, in a context such as s393, 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 Rv Pritchard of s2 of the Criminal Lunatics Act, namely, that “the question is, whether the prisoner has sufficient understanding to comprehend the nature of the trial, so as to make a proper defence to the charge”. In the context of s393, 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. Thus it has been said that the test needs to be applied “in a reasonable and commonsense fashion.” The test looks to the capacity of the accused to understand the proceedings …” (My emphasis-footnotes omitted).
The authorities which I have canvassed make it clear that prior to the enactment of s269H the test of whether an accused person was fit to plead or to be tried was whether the accused was, in general terms, incapable by reason of some physical or mental condition, to follow proceedings. A person who suffered from such an incapacity due to deafness and mutism fell within the ambit of the test and was subject to the operation of s293.
In my opinion the legislature intended that s269H embrace all persons who were considered under the antecedent law to be unfit to plead. This view is supported by the second reading speech, which accompanied the introduction of the Criminal Law Consolidation (Mental Impairment) Bill into Parliament: Hansard 3 August 1994 at p32.
In that speech the Attorney General said:
“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 no 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.” (My emphasis)
The consequence to which the Attorney General was referring was indefinite detention without trial. It was the injustice that could flow from such a result that Division 3 was intended to meet. Putting it another way it was not the ambit of s293, but rather the consequences of its application, that the legislature was concerned to address. In my opinion, the language contained in s269H (disorder or impairment of mental processes) is a modern and more sophisticated description of what the common law treated as insanity but the substance of the test remains the same.
The ambit of s269H was considered by the Court of Criminal Appeal in R v Sexton (2000) 77 SASR 405. Gray J (with whom the other members of the Court agreed) said (at 413-414 [45] – [46]):
“It is to be observed that this section makes reference to mental unfitness, in contrast to mental illness. Mental unfitness is identified as a disorder or impairment to a person’s mental process so that the person is, in general terms, unable to understand the trial process and their part in that process.
A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause is the relevant criterion to determine unfitness for trial.”
Gray J went on to say (416 [54]):
“Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one’s inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment”.
His Honour concluded (418[61]):
“I consider that the tests for determining unfitness for trial are the same at common law as under s269H of the Criminal Law Consolidation Act. Both tests provide that a person is fit to stand trial if he or she, in general terms, has sufficient understanding to comprehend the nature of the trial so as to make a proper defence to the charge. The question of whether a person is fit to stand trial may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or more generally because language difficulties make it impossible for a defence to be made. When mental unfitness is properly raised, s269B of the Criminal Law Consolidation Act requires the matter to be tried by judge and jury. An application of the common law leads to the same result.” (My emphasis)

These passages in the judgement of Gray J indicate, to my mind, that an accused person who is unable to sufficiently understand and comprehend the trial process by reason of being deaf and mute is subject to the procedures contained in Division 3 of the CLCA.
I am of the opinion that a person who is incapable of understanding the trial proceedings to the requisite degree due to a physical or mental condition falls within s269H. In the case of the applicant his mental processes viz his ability to comprehend and understand are impaired by reason of his disabilities. In the absence of some overwhelming reason to do otherwise the procedures specified in Division 3 of Part 8A should be followed. No such reason exists.
It was for these reasons that, on 19 May 2005, I rejected the application for a stay.