(The Honourable Chief Justice Doyle, The Honourable Justice Duggan, The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Anderson)
9 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - OTHER MATTERS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
Appeal against terms of supervision order and length of limiting term - appellant charged with numerous offences of dishonesty - appellant found mentally unfit to stand trial - trial judge found the objective elements of the charges proved - trial judge made a supervision order under Part 8A of the Criminal Law Consolidation Act 1935 - pursuant to s 269O(2) of the Act, trial judge set limiting term of 10 years - whether limiting term was manifestly excessive - held by Sulan J (Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing), limiting term not manifestly excessive - whether trial judge was required to take into account fact that appellant did not contest the finding that the objective elements proved - held by Vanstone J (Doyle CJ, Duggan, Sulan and Anderson JJ agreeing) overruling R v Davey (2006) 95 SASR 63, an acknowledgment of guilt is not to be equated with an admission of objective elements and there is no rule of law or practice requiring credit to be given - whether condition of residency was unduly onerous - held by Sulan J (Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing) condition appropriate in circumstances - whether conditions enabling detention of appellant at discretion of Director of Forensic Mental Health Services valid - held by Sulan J (Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing) allowing appeal on this ground, Part 8A creates scheme in which Court has power to impose conditions - conditions in question effectively delegate Court's power to the Director, which is beyond the scope of Part 8A - per curiam: conditions in question in supervision order struck out - supervision order otherwise affirmed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Draoui [2008] SASC 188
Case
[2008] SASC 188
Decision Date
CaseChat Overview and Summary
In R v Draoui, the appellant was charged with numerous offences of dishonesty. The trial judge found the appellant mentally unfit to stand trial and determined that the objective elements of the charges were proven. The judge made a supervision order under Part 8A of the Criminal Law Consolidation Act 1935 and set a limiting term of 10 years. The appellant appealed against the terms of the supervision order and the length of the limiting term. The primary legal issues were whether the limiting term was manifestly excessive, whether the trial judge was required to consider the appellant's non-contestation of the objective elements, whether the residency condition was unduly onerous, and whether the conditions enabling detention were valid.
The appeal was heard by a court of five judges. The court held that the limiting term was not manifestly excessive, and that the trial judge was not required to take into account the appellant's non-contestation of the objective elements. The court found that an acknowledgment of guilt is not to be equated with an admission of objective elements and there is no rule of law or practice requiring credit to be given. The court also held that the residency condition was appropriate in the circumstances. However, the court found that the conditions enabling detention at the discretion of the Director of Forensic Mental Health Services were beyond the scope of Part 8A and struck out those conditions. Consequently, the supervision order was affirmed with those conditions removed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It follows that it was beyond the power of the sentencing Judge to impose condition 10. I would allow the appeal on Ground 3 and strike out the condition. It follows that conditions 11 and 12 must also be struck out.Conclusion I would dismiss the appeal on the first and second grounds. It follows that I would not reduce the limiting term imposed by the Judge. I would allow the appeal in respect of the third ground and strike out conditions 10, 11 and 12 of the licence. VANSTONE J: Applying the mental impairment provisions of the Criminal Law Consolidation Act 1935 (CLCA), a judge of the District Court found that the appellant was mentally unfit to stand trial and found the objective facts of the charges proved. The judge then made a “supervision order” and was required to fix a limiting term. The terms of the order and the length of the limiting term were the subject of appeal. In the first instance a court of three judges heard the appeal. One of the principal arguments of the appellant was that the judge erred in failing to reduce the limiting term on account of the fact that the appellant took no issue with the objective elements of the offence. Reference was made to R v Davey (2006) 95 SASR 63, a decision of the Court of Criminal Appeal, for the proposition that, in these circumstances, a limiting term should be reduced in much the same way as would be a sentence upon a plea of guilty, and that failure to do so amounted to an error of law. Recognising that it might be necessary to reconsider the decision in Davey, a court of five was convened to hear further argument on the matter. That was done on the basis that the two additional members of the court would familiarise themselves with the arguments advanced at the original hearing and would pass judgment on all grounds of appeal. My conclusion is that in this respect Davey was wrongly decided. In support of that position I shall refer to the general scheme of the mental impairment provisions, to the particular provision requiring the fixing of a limiting term, to the leading cases concerned with giving credit for pleas of guilty and to the judgments in Davey itself. Part 8A CLCA, entitled “Mental Impairment”, was introduced by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995, Act No 91 of 1995. Building on the common law concepts of insanity and fitness to plead, it replaced them with mental competence to commit offences and mental unfitness to stand trial. The Part provides a regime by which those issues are to be investigated. Persons found to be mentally incompetent to commit an offence, or mentally unfit to stand trial, are to be “declared liable to supervision under this Part”. (See CLCA s 269F.B(3) and s 269G.B(3) and, for persons mentally unfit to stand trial, s 269M.B(2) and s 269N.B(3).) If a “supervision order” is to be made in respect of such a person, the court is required by s 269O to fix a “limiting term”, during which time the defendant will be subject to supervision. As will be seen, the length of it is to be reckoned by reference to the sentence which, in other circumstances, might have been imposed, but its purpose is quite different.