R v Pisanelli No. Sccrm-02-999

R v PISANELLI
[2003] SASC 239
Court of Criminal Appeal: Mullighan, Debelle and Gray JJ

MULLIGHAN, DEBELLE AND GRAY JJ This is an application for a case stated pursuant to s 350(2)(a) of the Criminal Law Consolidation Act 1935.
The accused is charged on information with the crime of wounding with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act. The charge is a consequence of police and members of the STAR Force going to premises at Flinders Park. The police had been informed that the accused was present in those premises and threatening others with a knife. Two police officers gained entry. There was an altercation between the police and the accused in the course of which one police officer received a puncture wound to his left shoulder.
The accused was arraigned in the District Court on 14 October 2002. He pleaded not guilty. On 14 November 2002 counsel for the accused asked Judge Vanstone to make an order pursuant to s 269WA of the Criminal Law Consolidation Act. He said that the mental competence of the accused would be raised as a ground of defence. Section 269WA provides:
“       269WA. (1) If in pre-trial proceedings it appears to the court that it might expedite the trial to order the examination of the defendant under this section in anticipation of trial, the court may, by order—
(a)     require the defendant to undergo an examination by a psychiatrist or other appropriate expert; and
(b)     require that the results of the examination be reported to the court.
(2) The prosecution and the defence are entitled to access to the report.”
Judge Vanstone made an order that the accused undergo an examination by a psychiatrist as to his mental competence. Her Honour also ordered that the results of the examination be reported to the court. By reason of s 269WA(2), both the prosecution and the defence are entitled to have access to the report.
The accused was examined by Dr Raeside who reported to the court on 13 January 2003. In his view, the accused was not mentally competent to commit the offence. However, he believed that the accused was fit to plead.
On 30 January 2003 the matter came before Judge Robertson who listed it for hearing on 12 March 2003 on the issue of mental competence.
On 12 March 2003 the matter was heard by Judge Vanstone. Counsel for the prosecution and for the defence were commendably attempting to agree the facts. Mr Cuthbertson appeared for the accused. Mr Cuthbertson expressed concerns about agreeing the elements of the offence with which the accused had been charged. He informed Judge Vanstone that, as it was a necessary element of the crime that the accused should have an intent to cause grievous bodily harm, it was not possible to agree that fact. He suggested that the matter might have to go to trial in the usual way. The matter was listed for a directions hearing on 20 March. On that day the matter was then listed for argument on 1 April.
Submissions were made to Judge Vanstone on 1 April 2003. Mr Cuthbertson submitted that the matter should proceed to trial in the usual way. Mr Barklay, counsel for the prosecution, contended that, as Judge Vanstone had commenced an examination as to the mental competence of the accused pursuant to s 269WA, the court had already embarked on an enquiry as to the mental competence of the accused so that the issue had to be determined pursuant to s 269F. He contended that the matter could not go to trial in the usual way.
On 1 May 2003 Judge Vanstone published reasons for refusing the application by the prosecution. The effect of Her Honour’s ruling is that the charge against the accused would be tried in the usual way.
The matter came before the court for a further directions hearing on 6 May. The prosecution asked Judge Vanstone to state a case to this Court on the question as to the procedure and the circumstances which should be adopted. He did not have a draft case but asked Judge Vanstone to allow him a short adjournment in which to prepare it. The judge expressed the view that, in light of her ruling, there was no need to revisit the issue in a case stated. She refused the application, and listed the matter for trial on 4 August.
The Director of Public Prosecutions now applies to this Court, pursuant to s 350(2)(a) of the Criminal Law Consolidation Act for an order requiring questions to be reserved for the consideration and determination of the Full Court.
After hearing argument, the court concluded that there were issues as to whether the trial judge was complying with the procedures prescribed by Part 8A of the Criminal Law Consolidation Act. It believed that it was necessary and important for the court to examine the consequences of an order having been made pursuant to s 269WA as well as other relevant provisions in Part 8A given that a report had been furnished to the court pursuant to s 269WA. The court believes that the questions should be limited to the questions of the procedural consequences of an order pursuant to s 269WA. It is inappropriate for the court to examine the merits of any possible defence which might exist as the issues will depend on whatever facts might be elicited at a trial. Given that conclusion, it is inappropriate that the court should make any further observations as to the effect and operation of s 269WA and the other provisions in Part 8A. On 18 July 2003 the court decided that the following case should be stated for the determination of the Full Court. The questions appear at the end of that case.
CASE STATED
1.The accused is charged with wounding with intent to cause grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935.
2.The accused has pleaded not guilty.
3.On 14 November 2002 the accused asked the court to make an order pursuant to s 269WA of the Criminal Law Consolidation Act requiring the defendant to undergo an examination by a psychiatrist or other appropriate expert.
4.On 14 November 2002 the court made an order pursuant to s 269WA of the Criminal Law Consolidation Act requiring the accused to undergo an examination by a psychiatrist and further ordered that the results to the examination be reported to the court.
5.The accused was examined by Dr Raeside who has reported in writing to the court. A copy of his report is attached.
6.Dr Raeside has reported that the accused was not mentally competent to commit the offence. He has further reported that the accused is fit to plead.
7.On 30 January 2003 Judge Robertson listed the matter for hearing on the issue of the mental competence of the accused. The hearing was listed for 12 March 2003. A copy of the transcript of the hearing on 30 January 2003 is attached.
8.The charges against the accused have been listed for trial. It has been ordered that the trial should proceed in the usual way and not pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act.
9.Pursuant to s 350(2)(a) of the Criminal Law Consolidation Act, it is ordered that the following questions be reserved for consideration and determination by the Full Court:
9.1Whether upon the proper construction of Part 8A of the Criminal Law Consolidation Act 1935 and in the events which have happened, has the court embarked upon an examination of the mental competence of the accused pursuant to Part 8A?
9.2If the answer to Question 1 is yes, is the court required to proceed pursuant to s 269F of the Criminal Law Consolidation Act or should it proceed in some other and, if so, what manner?
[Copy of report from Dr Raeside and transcript attached to original judgment.]

[2003] SASC 239

29 July 2003