R v Miller [No.1] No. Sccrm-00-101

R v MILLER [No.1]
[2000] SASC 147

In the Criminal Jurisdiction

MARTIN J. The accused is charged with Attempted Rape. He suffers from a mental disorder. Prior to the accused being arraigned before me, counsel for the accused raised the question as to the accused’s mental fitness to stand trial (“mental fitness”). In addition, counsel indicated that the accused would rely upon a defence of mental incompetence. Questions of mental fitness and mental competence to commit an offence (“mental competence”) must be investigated in accordance with the mental impairment provisions found in Part 8A of the Criminal Law Consolidation Act 1935 (“the CLCA”). Part 8A is a code for dealing with issues of mental fitness and mental competence (Question of Law Reserved (No. 1 of 1997) (1997) 70 SASR 251). In that context, I was asked to consider issues concerning the accused’s right to elect to have the investigation under Part 8A determined by a judge sitting alone and the impact of such an election upon the accused’s right to have the substantive issues concerning the charge determined by a jury.
The accused’s right to elect that a Part 8A investigation be conducted and determined by a judge sitting alone is governed by s 269B(1) of the CLCA and not s 7 of the Juries Act 1927 (R v T [1999] SASC 429). The Crown submitted that when the scheme of Part 8A is viewed in its entirety and regard is had to the detailed procedures set out in Part 8A, once an election is made pursuant to s 269B(1) an accused is bound by that election for the entirety of the proceedings. Counsel also referred to the possibility that if an accused is able to make the choice contemplated, it could result in witnesses for the prosecution giving evidence on more than one occasion. In particular, in cases of sexual assault such a consequence would be contrary to the legislative initiatives designed to ensure that other than in exceptional circumstances complainants in sexual assault cases should not be required to give evidence on more than one occasion.
The relevant provisions within Part 8A are as follows:
“Distribution of judicial functions between judge and jury
269B.       (1)    An investigation under this Part by the Supreme Court or the District Court into -
(a).... a defendant’s mental competence to commit an offence or a defendant’s mental fitness to stand trial; or
(b)whether elements of the offence have been established,
is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.
(2)    The same jury may deal with issues arising under this Part about a defendant’s mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries.
(3)    Any other powers or functions conferred on a court by this Part are to be exercised by the court constituted of a judge sitting alone.
DIVISION 2 - MENTAL COMPETENCE TO COMMIT OFFENCES
Mental competence
269C. A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment-
(a)     does not know the nature and quality of the conduct; or
(b)     does not know that the conduct is wrong; or
(c)     is unable to control the conduct.
Presumption of mental competence
269D. A person's mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence.
Reservation of question of mental competence
269E. (1) If, on the trial of a person for an offence -
(a)     the defendant raises a defence of mental incompetence; or
(b).... the court decides, on application by the prosecution or on its own initiative, that the defendant's mental competence to commit the offence should be investigated in the interests of the proper administration of justice,
the question of the defendant's mental competence to commit the offence must be separated from the remainder of the trial.
(2)    The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant.
(3)    If, at the preliminary examination of a charge of an indictable offence, the question of the defendant's mental competence to commit the offence arises, the question must be reserved for consideration by the court of trial.
What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence
269F.       If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows.
Trial of defendant's mental competence
A.     (1) The court-
(a)............. must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence;
and
(b)............. may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)    The power to require an examination and report under subsection (1)(b) may be exercised-
(a)     on the application of the prosecution or the defence; or
(b).... if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge's own initiative.
(3)    If the court is not satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must proceed with the trial of the offence in the normal way.
(4)    If the court is satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must record a finding that the defendant was mentally incompetent to commit the offence.
(5)    The court may, if the prosecution and the defence agree-
(a).... dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b)record a finding that the defendant was mentally incompetent to commit the offence.
Trial of objective elements of offence
B.     (1) If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.
(2)    If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established.
(3)    If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
What happens if trial judge decides to proceed first with trial of objective elements of offence
269G.       If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.
Trial of objective elements of offence
A.     (1)    The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant.
(2)    If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must record a finding that the defendant is not guilty of the offence and discharge the defendant.
Trial of defendant's mental competence
B.     (1)    If the court records a finding that the objective elements of the offence are established, the court-
(a).... must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and
(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)    The power to require an examination and report under subsection (1)(b) may be exercised-
(a)     on the application of the prosecution or the defence; or
(b).... if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge's own initiative.
(3)    If the court is satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must record a finding that the defendant is not guilty of the offence and declare the defendant to be liable to supervision under this Part.
(4)    If the court is not satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must proceed to consider whether the evidence establishes the subjective elements of the offence beyond reasonable doubt, and -
(a).... if satisfied that the subjective elements of the offence are established beyond reasonable doubt - must record a finding that the defendant is guilty of the offence and proceed to deal with the defendant as if a finding of guilt had been made in the normal way; or
(b)if not satisfied that the subjective elements of the offence are established beyond reasonable doubt - must record a finding that the defendant is not guilty of the offence.
(5)    The court may, if the prosecution and the defence agree -
(a).... dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b)declare that the defendant was mentally incompetent to commit the offence, record a finding that the defendant is not guilty of the offence, and declare the defendant to be liable to supervision under this Part.
DIVISION 3 - MENTAL UNFITNESS TO STAND TRIAL
Mental unfitness to stand trial
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.
Presumption of mental fitness to stand trial
269I.                  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.
Order for investigation of mental fitness to stand trial
269J.(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.
Preliminary prognosis of defendant's condition
269K.       (1) Before formally embarking on an investigation under this Division of a defendant's mental fitness to stand trial, a court may require production of psychiatric or other expert reports that may exist on the defendant's mental condition and may, if it thinks fit, itself have a report prepared on the defendant's mental condition.
(2)    If it appears from a report that the defendant is mentally unfit to stand trial but there is a reasonable prospect that the defendant will regain the necessary mental capacity over the next 12 months, the court may adjourn the defendant's trial for not more than 12 months.
(3)    If after the adjournment the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may revoke the order for the investigation and the trial will then proceed in the normal way.
Trial judge's discretion about course of trial
269L.       If the court orders an investigation into a defendant's mental fitness to stand trial, the question of the defendant's mental fitness to stand trial may, at the discretion of the trial judge, be separately tried before any other issue that is to be tried or after a trial of the objective elements of the alleged offence.
What happens if trial judge decides to proceed first with trial of defendant's mental fitness to stand trial
269M.      If the trial judge decides that the defendant's mental fitness to stand trial is to be tried first, the court proceeds as follows.
Trial of defendant's mental fitness to stand trial
A.     (1)    The court-
(a).... must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and
(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)    The power to require an examination and report under subsection (1)(b) may be exercised -
(a)     on the application of the prosecution or the defence; or
(b).... if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge's own initiative.
(3)    If the court is not satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must proceed with the trial of the offence in the normal way.
(4)    If the court is satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must record a finding to that effect.
(5)    The court may, if the prosecution and the defence agree-
(a).... dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and
(b)     record a finding that the defendant is mentally unfit to stand trial.
Trial of objective elements of offence
B.     (1)    If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2)    If the court is satisfied that-
(a).... the objective elements of the offence are established beyond reasonable doubt; and
(b)there is, on the evidence before the court, no defence to the charge that could be established on the assumption that the defendant's mental faculties were not impaired at the time of the alleged offence,
the court must record a finding that the objective elements of the offence are established and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
What happens if trial judge decides to proceed first with trial of objective elements of offence
269N. If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.
Trial of objective elements of offence
A.     (1)    The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.
(2)    If the court is satisfied that -
(a).... the objective elements of the offence are established beyond reasonable doubt; and
(b)there is, on the evidence before the court, no defence to the charge that could be established on the assumption that the defendant's mental faculties were not impaired at the time of the alleged offence,
the court must record a finding that the objective elements of the offence are established; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
Trial of defendant's mental fitness to stand trial
B.     (1)    If the court records a finding that the objective elements of the offence are established, the court -
(a).... must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and
(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)    The power to require an examination and report under subsection (1)(b) may be exercised -
(a)     on the application of the prosecution or the defence; or
(b).... if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge's own initiative.
(3)    If the court is satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part.
(4)    If the court is not satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must proceed with the trial of the remaining issues (or may, at its discretion, re-start the trial).
(5)    The court may, if the prosecution and the defence agree -
(a).... dispense with, or terminate, an investigation into a defendant's mental fitness to stand trial; and
(b)declare that the defendant is mentally unfit to stand trial, and declare the defendant to be liable to supervision under this Part.”
The provisions found in Part 8A of the CLCA apply only when issues of mental fitness and mental competence are raised and become the subject of investigation. The wording of s 269B(1) is plain. It applies to an investigation under Part 8A and confers upon an accused a right of election only with respect to an investigation under that Part. In those circumstances, in my opinion an election pursuant to s 269B(1) has no effect upon proceedings that are not conducted under Part 8A. In an ordinary trial of substantive issues, an accused’s right to elect is governed by the provisions of the Juries Act. An election pursuant to s 269B(1) is not an election for the purposes of the Juries Act. If proceedings commenced under Part 8A cease to be a Part 8A investigation, an accused’s election pursuant to s 269B(1) ceases to have effect. Similarly, if an accused has elected to be tried upon the substantive issues by judge alone pursuant to s 7 of the Juries Act and, subsequently, an investigation is conducted with respect to mental fitness or mental competence, the election pursuant to the Juries Act will have no effect upon the accused’s right to make an election pursuant to s 269B(1) in respect of the Part 8A investigation.

Two additional questions require consideration. First, the provisions of Part 8A contemplate that a Part 8A investigation might involve an investigation as to whether the elements of the offences have been established. In the context of a Part 8A investigation dealing with both the elements and issues of mental fitness or mental competence, the terms of s 269B(1) raise the question as to whether an accused can elect to have an investigation concerning mental fitness or mental competence conducted and determined by a judge sitting alone while leaving the issue of whether the elements of the offence have been established to determination by a jury. The second issue concerns the circumstances in which a hearing concerning the elements of the offence will be part of the Part 8A investigation rather than being a trial not governed by Part 8A.
A consideration of the provisions of Part 8A in their entirety demonstrates that Parliament sought to establish a regime in which issues concerning mental fitness and mental competence could be determined in a practical way that is fair to every accused. Appropriate flexibility has been created by giving trial judges the discretion to determine in which order the proceedings should take place. In some respects, however, the legislation is complicated and it is not an easy matter to address all possible scenarios with a view to resolving the issues under consideration.
The investigation procedures with respect to mental fitness and mental competence are substantially the same. There are, however, some differences which will become apparent. In both sets of procedures, if the trial judge elects to proceed first with the issues of mental fitness or mental competence, the first part of the trial concerned with those issues is obviously an investigation governed by Part 8A. If the court is not satisfied that an accused is mentally unfit to stand trial or was mentally incompetent to commit the offence, the relevant provisions direct that “the court must proceed with the trial of the offence in the normal way” (ss 269FA(3) and 269M(A)(3)). In my opinion, at the point where the court records the finding that it is not satisfied of mental unfitness or mental incompetence, the proceedings cease to be a Part 8A investigation. If the hearing proceeds or a new trial is commenced with respect to the substantive issues, including any defence to the charge, the proceedings will be outside the purview of Part 8A. In that event, the proceedings will be governed by the usual provisions applicable to ordinary trials that do not involve issues of mental fitness and mental competence.
If the issues of mental fitness and mental competence are heard first and a finding is recorded that the accused is unfit or was incompetent, the court is directed to hear evidence and representations as to whether the objective elements of the offence are established. In that event, the issue arises as to whether the hearing with respect to the objective elements is a continuation of the investigation pursuant to Part 8A. The answer to that question affects the accused’s right of election. Differences exist between the provisions governing mental fitness procedures and those concerned with mental competence.
I deal first with the relevant provisions governing mental fitness. In this scenario, having found that an accused is mentally unfit to stand trial, the court is directed by s 269MB(1) to hear evidence and representations “relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established” (my emphasis). If the objective elements are established and possible defences are excluded, the court must record that finding and declare the accused liable to supervision under Part 8A (s 269MB(2)).
The use of the words “under this section” in subs(1) is significant. Bearing in mind both those words and the fact that the hearing concerning the objective elements follows a finding that the accused is mentally unfit to stand trial, in my opinion the hearing as to the objective elements is a continuation of the investigation governed by Part 8A.
I turn to the relevant provisions concerning mental competence on the basis that the court has proceeded first with the trial of mental competence and found that the accused was mentally incompetent to commit the offence. An overall view of the procedure which requires that the court then hear evidence and submissions as to the objective elements of the offence supports the view that the hearing concerning the elements of the offence remains part of the Part 8A investigation. The direction to hear the evidence concerning the objective elements is found in s 269FB(1), but unlike the mental fitness provision which speaks of determining whether a finding should be recorded “under this section”, the words “under this section” do not appear in s 269FB(1).
There is another complication with respect to the procedure governing mental competence hearings. The provisions do not specifically empower the court to embark upon an investigation as to mental competence prior to the commencement of the trial on the substantive issues. Section 269E speaks of separating the question of mental competence from the remainder of the trial in the context of an existing trial. For that reason s 269E could be seen as supporting the view that only the trial of the issue of mental competence is part of the Part 8A investigation and that, whenever the court proceeds to hear evidence concerning the objective elements, the hearing ceases to be a Part 8A investigation. However, such an interpretation would mean that, mental incompetence having been established, the proceedings are transformed from a Part 8A investigation into an ordinary trial.
In my opinion, when the provisions are viewed in their entirety, once a finding of mental incompetence has been made, the balance of the proceedings concerning the objective elements continues to be a Part 8A investigation.
The court is also empowered to proceed first with the trial of the objective elements of the offence. In that event, the procedure with respect to mental fitness is governed by s 269N. This procedure may occur prior to the commencement of the trial of the substantive issues (s 269J(1)). If the trial has commenced before the court orders an investigation into mental fitness, s 269J(3) authorises the court to adjourn or discontinue the trial to allow for the investigation. Bearing in mind those provisions and the context of s 269N, in my opinion the trial of the objective elements which takes place first pursuant to s 269N is part of the investigation governed by the provisions of Part 8A.
Having found that the objective elements are established, if the court is not satisfied that an accused is mentally unfit to stand trial, s 269NB(4) directs that “the court must proceed with the trial of the remaining issues (or may, at its discretion, re-start the trial)”. It might be said that when the court proceeds with the trial of the remaining issues or “re-starts” the trial, it is artificial to regard the balance of the proceedings as separate from the preceding Part 8A investigation. However, the Part 8A investigation is only invoked for the purposes of investigating mental fitness. At this point, the investigation into mental fitness has been completed because the court has found that it is not satisfied that an accused is mentally unfit. In that sense, the investigation under Part 8A has concluded and it lacks logic to regard the balance of the proceedings as a continuation of the Part 8A investigation. In my opinion, therefore, regardless of whether the court proceeds with the trial of the remaining issues or “re-starts” the trial as authorised by s 269NB(4), the balance of the proceedings is not an investigation for the purposes of Part 8A.
As to mental competence, the court is similarly empowered to proceed first with the trial of the objective elements (s 269E(2)). If the court determines to follow this alternative procedure, for the reasons discussed in connection with this procedure as applied to mental fitness, I have reached the view that the trial of the objective elements is part of the Part 8A investigation. However, if the court is satisfied that the objective elements are established, but is not satisfied that the accused is mentally incompetent, the wording of the statute concerning the balance of the proceedings is different from the wording that appears in s 269NB(4) with regard to mental fitness. Unlike the latter procedures which require the court to proceed with the trial of the remaining issues or “re-start” the trial, in connection with mental competence s 269GB(4) dictates that “the court must proceed to consider whether the evidence establishes the subjective elements of the offence beyond reasonable doubt ...”. Read literally, the words “the evidence” could be seen as a reference to the evidence led upon the hearings concerned with the objective elements and mental competence thereby precluding the leading of further evidence concerning the subjective elements and any defence an accused wishes to raise. Parliament cannot have intended such a consequence. The evidence led during the Part 8A investigation concerning the objective elements and mental competence may not have been all the evidence relevant to the subjective elements of the offence and any defence an accused wishes to raise. In my opinion, notwithstanding the inadequate wording, Parliament must have intended that the trial continue with respect to the subjective elements and possible defences. This part of the trial, however, occurs after the court has found that it is not satisfied that an accused was mentally incompetent to commit the offence. In that sense, the purpose of the Part 8A investigation has been fulfilled. In my opinion, therefore, Part 8A ceases to have operation when that finding concerning mental competence is made. Part 8A is not applicable to the balance of the proceedings.
Against the background of those views concerning the nature of the proceedings at each stage of the process, I turn to the question whether an accused can elect, within a Part 8A investigation, to have only the issues concerning mental unfitness and mental competence tried by a judge alone leaving the issues concerning the elements of the offence to be determined by a jury. As a matter of practical application, the right to make such a choice will not cause any difficulties if the investigation as to mental fitness or mental competence is conducted first. However, if the trial of the objective elements is held first, the proceedings would commence before a jury and, if the objective elements are established, would continue before a judge alone as to the issues of mental fitness and mental competence. There is then the prospect of reverting to a trial by jury in connection with the subjective elements.
The ordinary and natural meaning of the words in s 269B(1) appears to confer upon an accused the right to elect to have part or all of a Part 8A investigation conducted and determined by a judge sitting alone. It is not difficult to envisage circumstances in which an accused might prefer to have the issues of mental fitness or mental competence determined by a judge while preferring that any investigation as to the elements of the offence be conducted before a jury. For example, the investigation concerning mental fitness or mental competence might necessarily involve the disclosure of prior misconduct. It is not surprising, therefore, that Parliament might confer upon an accused such a right of choice. If there is doubt about the meaning of s 269(1), an interpretation that assists flexibility and facilitates choices by an accused should be favoured.
In all the circumstances, bearing in mind that the procedures with respect to mental fitness and mental competence amount to a special regime outside the normal trial procedures, in my opinion the ordinary and natural meaning of the words in s 269B(1) should prevail. The practical ramifications are not insurmountable and can be minimised if the investigation concerning mental fitness or mental competence is conducted first. In my opinion, an accused is entitled to elect to have an investigation pursuant to Part 8A into mental fitness and mental competence heard and determined by a judge sitting alone but, when the hearing concerning the elements is also part of the Part 8A investigation, choose to have the determination as to whether the elements of the offence have been established decided by a jury.

[2000] SASC 147

2 June 2000