R v Sexton - [2000] SASC 124

R v SEXTON
[2000] SASC 124

Court of Criminal Appeal: Debelle, Nyland and Lander JJ

DEBELLE J. This matter raises questions as to the manner in which it is appropriate to determine the question whether a person is physically capable of enduring a trial for an offence against a law of the Commonwealth. The appellant purports to apply for leave to appeal against a verdict of a jury that he is fit to stand trial. He also applies for leave to appeal from a decision refusing a stay of the information against him.
The appellant was jointly charged with five others with being knowingly concerned in the importation of 35 kilograms of cannabis contrary to s 233B(1) of the Customs Act, 1901. The offences are alleged to have occurred in 1997. One of the accused pleaded guilty. Another has been dealt with separately. In July 1999 the remaining four accused applied for separate trials. The applications were dismissed.
On 11 October 1999 a lengthy voir dire hearing began before Olsson J. At that stage and earlier the appellant was represented by counsel. On 23 February 2000 his counsel was given leave to withdraw. Thereafter the appellant has represented himself except on two occasions to be mentioned in a moment.
On 23 February 2000 the appellant applied for an order that the information against him be permanently stayed or, in the alternative, stayed or adjourned until further order. The application was made on the ground that he is suffering from coronary artery disease which is inoperable. The application was heard on 7 March 2000. The trial judge decided to empanel a jury for the purpose of trying the issue whether the appellant was fit to be tried. The judge was proceeding pursuant to s 20B of the Crimes Act 1914 (Commonwealth) in accordance with a ruling he had earlier made on a like application to the appellant’s: see R v Burns(No 2) (1999) 205 LSJS 385.
The jury heard evidence from Dr Ayres, a cardiac specialist who is treating the appellant. The appellant has quite extensive coronary disease. The disease is diffuse, that is to say, it exists throughout the coronary arteries. There are multiple narrowings in almost every branch of the major coronary arteries. Surgical intervention is not considered appropriate. The appellant is on a régime of medication. There is a history of coronary disease in the appellant’s family. His mother suffered a fatal coronary attack when aged 66 years. His two brothers died from coronary attack aged 61 and 71 years respectively. The appellant is aged 69 years. The appellant had himself suffered a heart attack in 1999. Doctor Ayres said that the appellant does not handle stress well. The demands of a long case would subject him to a great deal of stress particularly if he continued to represent himself. This stress will, he said, interfere with the appellant’s levels of concentration. Doctor Ayres had concerns as to the appellant’s ability to cope with a trial.…

Grounds of appeal

[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.

Continue reading R v Sexton

Details

AGLC: R v Sexton [2000] SASC 124
Case: [2000] SASC 124
Decision Date: 16 May 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, Debelle, Nyland and Lander JJ were presented with an application by the appellant, Mr Sexton, for leave to appeal against the verdict of a jury that he was fit to stand trial, and against the decision of the trial judge to refuse a stay of proceedings. The appellant was jointly charged with others for being knowingly concerned in the importation of cannabis, an offence against a law of the Commonwealth. The appellant applied for a permanent stay of the information against him on the ground that he was suffering from coronary artery disease, which was inoperable. The trial judge decided to empanel a jury for the purpose of trying the issue whether the appellant was fit to be tried. The jury returned a verdict that the appellant was fit to be tried. The appellant applied for leave to appeal against the verdict of the jury and for a stay of proceedings on the grounds that it was an abuse of process. Both applications were dismissed. The appellant applies to this Court for leave to appeal from the verdict of the jury and from the decision of the trial judge refusing to order a stay. The Court considered the capacity to appeal under section 352 of the Criminal Law Consolidation Act 1935 and concluded that the appellant's appeal was incompetent. The Court also considered the applications made during the hearing of the appeal, including an application to amend the notice of appeal and an application to direct the trial judge to state a case. The Court found that the application to amend the notice of appeal was inappropriate and dismissed the application. However, the Court found that it was appropriate to require the trial judge to state a case on the issue whether the application of the appellant that his trial be stayed or adjourned on the ground of his ill health should be determined pursuant to s 20B of the Crimes Act 1914 (Commonwealth) or by the trial judge. The Court made an order that the trial judge state a question to this Court on the issue whether the application of the appellant that his trial be stayed or adjourned on the ground of his ill health should be determined pursuant to s 20B of the Crimes Act 1914 (Commonwealth) or by the trial judge.

Orders