R v Ridings - [2006] SASC 368

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIDINGS
[2006] SASC 368
Reasons for Ruling of The Honourable Justice Perry
5 December 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - OTHER MATTERS
The accused, who was awaiting trial on a charge of murder, raised issues of mental competence to plead and mental competence to commit the offence - he elected for trial by judge alone, at least as to the inquiries as to his mental competence - the court ordered that the issue of mental fitness to stand trial be tried first - discussion whether assigned judge would necessarily be obliged to deal with any subsequent stages - held desirable that, whether the matter proceeded by way of trial by judge alone or judge and jury, practical and other considerations made it desirable that one judge remain seized of the matter.
Criminal Law Consolidation Act 1935 Pt 8A, referred to.
R v Miller (No 2) (2000) 76 SASR 560, considered.

R v RIDINGS
[2006] SASC 368
Criminal

PERRY J. The accused, Anthony James Ridings, is charged with murder, particulars of the offence being that on 3 September 2005 at West Croydon he murdered John Christopher Sullivan.
When arraigned in this Court, the question was raised as to his mental competence, both with respect to his fitness to stand trial and as to his mental competence to commit the offence.
Medical reports have been obtained, and on 18 August 2006, pursuant to s 269L of the Criminal Law Consolidation Act 1935 (“the Act”), a judge of the court made an order which effectively directed that the question of the accused’s mental fitness to stand trial be separately tried before any other issue and before a trial of the objective elements of the alleged offence.
At the same time, on the application of the accused, she ordered that the trial be by judge alone, commencing on 4 December 2006.
On being assigned to deal with the matter, I pointed out that although I was available to conduct the hearing on the question of the fitness of the accused to stand trial, the likelihood is that I would not be available to conduct the trial of any further stages.
As to any further stages, if an investigation into the fitness of the accused to stand trial gave rise to a finding that the accused was so fit, the court must proceed with the trial in the normal way: see s 269MA(3)(b).
If a finding should be recorded that the accused was mentally unfit to stand trial, the question would then have to be addressed as to whether a finding should be recorded that the objective elements of the offence are established: see s 269MB(1).
When I raised the question with counsel for the accused, Ms O’Connor, she at first intimated that her instructions were to consent to me proceeding with the matter, notwithstanding that I would not be available for any subsequent stages. Later, she indicated that her instructions no longer permitted her to agree to that course.
From the outset, Mr Brebner QC for the Crown indicated that on a proper construction of the Act, it may not be possible for me to follow that course, and that it might be necessary for the judge dealing with the question of fitness to stand trial to deal with any subsequent stages.
After hearing argument, I came to the conclusion that Mr Brebner’s submission was correct, not necessarily as a matter of statutory construction, but certainly by reference to practical considerations. Having reached that view, another judge was assigned to hear the matter.
These reasons explain why I reached that conclusion.
The relevant provisions are set out in Pt 8A of the Act, more particularly Division 3 of that Part.
The test of mental unfitness to stand trial is set down in s 269H which is as follows:
269HA 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.
Section 269J provides that the court may order an investigation into the defendant’s mental fitness to stand trial if there are reasonable grounds to suppose that his or her mental condition answers that description. This may be done, inter alia, on the application of the prosecution or the defence.
In this case there is no written application on file, and it is not clear who was the moving party in seeking an order. Nothing turns on that.
The procedure to be followed if the trial judge decides that the defendant’s mental fitness to stand trial is to be tried first, is set out in s 269M of the Act. Pursuant to s 269M “the court … must hear relevant evidence and representations” on the question.
If the trial is before a judge and jury, the question of the defendant’s mental fitness to stand trial being essentially a factual question, this would be determined by the jury.
Section 269M(3) provides:
(3)At the conclusion of the trial of the defendant’s mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and-
(a) if so – must record a finding to that effect;
(b) if not – must proceed with the trial in the normal way.
If the trial proceeds in the normal way, it would in those circumstances, absent any election by the accused for trial by judge alone, ordinarily proceed before the same judge and jury as determined the defendant’s mental fitness to stand trial.
If the court records a finding that the defendant is mentally unfit to stand trial, “the court must hear evidence and representations … relevant to the question whether a finding should be recorded … that the objective elements of the offence were established” (s 269MB(1)).
Again, if there is to be a trial of the objective elements, this would ordinarily be conducted by the same judge and jury as determined the question of mental fitness.
Although there are frequent references to decisions or steps to be taken by “the court”, Division 3 contains a number of references to the “trial judge”. For example, s 269N provides:
If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows. … (my emphasis)
I had thought at first that the words were deliberately chosen, and that reference to “court” might be taken to mean any judge. However, looking at the relevant sections, it appears that the words have been used indiscriminately, and are not necessarily intended to be distinguished.
Section 269B provides:
(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.
(4)…. (my emphasis)
As I read those provisions, the question whether the issue of fitness to stand trial should proceed first, was a question which, pursuant to subsection (3), might be determined by a judge sitting alone who need not necessarily be the trial judge.
However, once an investigation has commenced, it seems to me that, looking broadly at the relevant provisions, the legislature contemplated that the court as constituted, whether it be a judge sitting with a jury or a judge sitting alone, may continue to deal with the matter until a final verdict is delivered, whatever stages may precede that.
On the other hand, if an accused elects at the outset to have the question of mental competence to commit the offence or stand trial, dealt with by a judge alone, and is found mentally competent, he or she may then require the trial of the substantive offence to proceed before a judge and jury. This is so, because an election pursuant to s 269B(1) to have a matter dealt with by a judge sitting alone, ceases to have effect if the outcome of the investigation under Pt 8A is that the trial then proceeds in the normal manner. A further election may then be made under the Juries Act 1927, in the absence of which, the trial then proceeds before a judge and jury.
Section 269B(2) seems clearly to contemplate that, if both stages are dealt with by a judge and jury, the same judge and jury is to deal with the whole of the matter, unless the judge thinks that there are “special reasons to have separate juries”.
There are sound practical reasons why ordinarily the same judge and jury should deal with all stages, not the least of which is to avoid conflicting findings as to the credit of witnesses, including expert witnesses, called at more than one stage of the proceedings.
There are other practical considerations.
For example, if one judge was to decide that the defendant was mentally competent to stand trial, but another judge became the trial judge, whether sitting alone or with a jury, to try the accused’s guilt or innocence of the offence, the trial judge would be put in a difficult position if he or she happened to disagree with the view taken by the first judge on the question of fitness.
Furthermore, a question of fitness to stand trial is not finally determined by the investigation under s 269J. Events may occur during the course of a trial which would justify revisiting the question, and the court may reach a different view, even during the course of the trial of the substantive offence. It is better if a decision is to be reviewed that the judge who performs the review is the judge who conducted the pre-trial investigation. That judge would be in a better position to determine whether or not any developments since then give rise to a situation in which the decision should be reconsidered.
I do not think that the views which I have expressed conflict with the decision of Martin J inn R v Miller (No 2).[1] That decision is authority for the proposition that an election as to trial by judge alone made for the purposes of an investigation under Pt 8A ceases to have effect if the outcome is that the matter proceeds to trial in the ordinary way. In that case, any further election is governed by the Juries Act 1927.
[1] (2000) 76 SASR 560.
That conclusion does not deflect me from the view that it is preferable, for the reasons which I have given and where possible, that one judge presides over the various stages, whether sitting with or without a jury.