R v Sexton

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. The stress could induce a heart attack and the appellant’s ability to survive would depend on how quickly he could receive treatment at a hospital. There would obviously be less stress if the appellant had legal representation. The appellant did not give evidence in support of his application. The trial was listed to commence on 13 March 2000. The trial judge informed the jury that the trial may run for at least two months.
The jury returned a verdict that the appellant was fit to be tried. On 13 March 2000 the appellant applied for leave to appeal against the verdict of the jury. He also applied for a stay of proceedings on the grounds that it was an abuse of process. On that day he was represented. Both applications were dismissed. The application for leave to appeal was dismissed on the ground, among others, that no right of appeal existed. 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. On both applications the appellant was represented before this Court.

The capacity to appeal

Section 352 of the Criminal Law Consolidation Act 1935 prescribes the capacity to appeal in criminal cases. Section 352(1)(a) and (b) have no present application. Section 352(1)(c) provides that appeals lie to the Full Court if a court makes a decision on an issue antecedent to trial that is adverse to the defendant. The expression “issue antecedent to trial” is defined by s 348 to mean
“a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of the court.”

Although the verdict of a jury that a person is fit to be tried is a question decided before the trial, it is not a decision dealing with the question whether an information should be stayed on the ground that the proceedings are an abuse of the process of the court. The intent of s 348 is that it should apply where a judge, not a jury, makes a decision adverse to the defendant on an application by the defendant to stay the proceedings.

The conclusion that the expression “an issue antecedent to trial” refers to a decision made by a judge, not a jury, is further confirmed by s 353(3a) which prescribes the powers of the Full Court on an appeal against a decision on an issue antecedent to trial. The Full Court may confirm, vary or reverse the decision subject to appeal and may make any consequential orders as may be necessary. Those powers are more consistent with an appeal against the decision of a judge than an appeal against the verdict of a jury.
A defendant may only appeal before the trial if he obtains leave and leave will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial: s 352(1)(c)(i). The fact that a defendant must obtain the leave of the trial judge is a further reason why this appeal and this application are incompetent. If leave is refused, s 352 provides no right of appeal to Full Court nor any right to apply for leave to appeal to the Full Court. Once the trial judge has determined not to grant leave, the trial must then proceed and the defendant’s ability to appeal against the decision on an issue antecedent to trial will only be available if he is convicted: s 352(1)(c)(ii). When s 352(1)(c) is viewed as a whole, it is apparent that the intention is not to delay the trial by appeals on issues antecedent to trial.
For these reasons both the purported appeal and the application for leave to appeal are incompetent.

Applications During Hearing of Appeal

Faced with these apparent difficulties, the appellant made two applications in the course of the hearing of the appeal. The first was to amend his notice of appeal to add the following ground:
“The issue of the appellant’s fitness to be tried ought to have been determined by the trial judge sitting alone and not by a jury.”

That ground did not in any respect avoid the appeal being incompetent. It is therefore inappropriate to grant leave to amend the notice. I would, therefore, dismiss the application.

The second application was that this Court should direct Olsson J, the trial judge, to state a case to this Court pursuant to s 350 of the Criminal Law Consolidation Act. Section 350(2) empowers the Full Court to require a question of law to be reserved for the consideration of the Full Court upon an application being made to that effect. Mr Stokes, who appeared for the appellant, invited this Court to require the trial judge to state a case on the question whether it is necessary to follow the procedure prescribed by s 20B of the Crimes Act when determining whether the application by the appellant for a stay or adjournment should be granted.

Should a Case be Stated?

Although the High Court held in Director of Public Prosecutions v B (1998) 155 ALR 539 that a case could not be stated on a matter arising before the commencement of the trial, that decision concerned the terms of s 350 before it was amended in 1996 by the Act No 90 of 1995 which came into operation on 4 January 1996. Section 350 empowers this Court to require a case to be stated. That power is not subject to any qualification expressed in either s 350 or elsewhere in the Criminal Law Consolidation Act. However, it is not a power which will be lightly exercised. Certainly it will not be exercised merely because an appellant finds that his appeal is incompetent. While the court should not usually permit interlocutory appeals in criminal trials, it may exercise its discretion to direct that a case be stated where the questions are of general importance and will not delay the trial: Application for Reservation of Question of Law (No 2) (1997) 196 LSJS 1; Director of Public Prosecutions (Cth) v Gee (1999) 204 LSJS 303 at 312 - 314. As this Court said in R v Gee (1999) 72 SASR 593 the power should only be exercised in unusual or exceptional cases.
There are at least three features about this case which justify this Court to make an order requiring the trial judge to state a case. First, for the reasons which appear a little later, there is a real question whether the trial judge adopted the correct procedure in empanelling a jury to try the question whether the appellant was fit to be tried under s 20B. That in turn raises the question whether the decision in R v Burns is correct. Secondly, this is a question which will affect future trials for offences against a law of the Commonwealth. The question has already arisen in R v Burns and we were informed that the issue has arisen at least once in the District Court and on that occasion the reasoning of R v Burns was applied. The issue will in all likelihood surface quite frequently particularly if, as has been held in R v Burns, any issue related to the physical capacity for trial is to be determined in this way. The question is therefore one of general importance in the administration of criminal justice. Thirdly, the determination of this issue will not unduly delay the trial. Notwithstanding that the trial judge refused the appellant’s application for a stay, he has ordered that there be a separate trial of the appellant’s co-accused. That order was made with the consent of the prosecution when the appellant became ill at the commencement of the trial and remained ill for a week. Thus the determination of the issue will not delay the trial of the other accused and it is central to the question whether the trial of the appellant should proceed. Although the appellant has not been tried with his co-accused, there remains a live issue whether he is fit enough to endure a long trial. In short, this is an unusual case and it concerns an important issue which, in all likelihood, will recur with sufficient frequency in the future. It is therefore appropriate to require the trial judge to state a case.

Was the Procedure Correct?

There is a real question whether the correct procedure was used to determine the question whether to grant the appellant’s application for a stay or adjournment of his trial. Given the conclusion that it is appropriate to require the judge to state a case on this issue and the possibility that the issues in the case stated will be determined by a court differently constituted from this Court, it is appropriate to do no more than set out brief reasons for that conclusion. In stating these reasons, I do not in any respect seek to make a final determination of the issues or trespass upon the province of a later court to determine them.
Central to the resolution of that question is how a court should determine whether a defendant’s physical ill health should cause a trial for an offence against the law of the Commonwealth to be adjourned or permanently stayed. Should the application be determined pursuant to the requirements of Division 6 of Part 1B of the Crimes Act (ss 20B to 20BH) or pursuant to the court’s inherent jurisdiction to stay criminal proceedings which will result in an unfair trial: Dietrich v The Queen (1992) 177 CLR 292; R v Hakim (1989) 41 A Crim R 372; R v Walker (1998) 101 A Crim R 152 at 161.
Section 20B prescribes the procedure for determining the question whether a person charged with an offence against the law of the Commonwealth is fit to be tried. Section 16 of the Act defines the expression “fit to be tried” to include “fit to plead”. Standing alone, the expression “fit to be tried” includes both physical and mental capacity or incapacity. However, when regard is had to the context in which s 20B appears, it seems that the procedure there prescribed is intended to deal only with the question whether a person is mentally fit to plead or to be tried. Section 20B was introduced into the Crimes Act on 17 July 1990 when the Act No 4 of 1990 came into operation. It was introduced with other provisions which constitute a régime for dealing with persons found to be fit to be tried. Those provisions replaced an earlier régime established by the repealed form of s 20B. That earlier régime imposed a duty on a court in cases where a person charged with an indictable offence against a law of the Commonwealth is unfit to be tried by reason of unsoundness or of mind or is acquitted by reason of unsoundness of mind at the time of the commission of the offence to direct that the person be kept in strict custody until the pleasure of the Governor-General is known. Division 6 in its present form establishes a more elaborate régime and there is a good argument that the intention expressed in Division 6 is that the régime is intended to deal only with persons unfit to be tried or unfit to plead on grounds of mental incompetence. That intention appears most clearly in provisions which follow s 20B.
Section 20B requires the court to determine whether the defendant is fit to be tried and, if not, to determine whether a prima facie case has been established that the defendant committed the offence concerned: s 20B(4). The court must then decide whether grounds exist to dismiss the charge and, if not, whether the defendant will be fit to be tried within twelve months: s 20BA(4). The court must obtain written or oral evidence from a psychiatrist or medical practitioner before making a determination under s 20BA(4). Sections 20BB and 20BC provide what should occur in the event that the defendant is likely to be fit to be tried within twelve months or if he is not. In both instances, the court must, at the time of making that determination, also determine whether the defendant is suffering from a mental illness or a mental condition for which treatment is available in a hospital and, if so, whether the person objects to being detained in a hospital: see s 20BB(1) and s 20BC(1) respectively. Sub-section (2) of both s 20BB and s 20BC empower the court, if it has determined the person is suffering from a mental illness or mental condition for which treatment is available in a hospital, to order that person to be taken to and detained in a hospital. If a person objects to treatment in a hospital, the court may order the person to be detained in a place other than a hospital, including a prison, or, if the person is likely to be fit within twelve months to be released on bail. Both s 20BA and s 20BC suggest that these provisions are intended only to relate to persons suffering from a mental illness or from a mental condition for which treatment is available.
Further support for the conclusion that Division 6 is concerned only with mental capacity to be tried is found in s 20BD and s 20BE. Where orders are made under s 20BC that a person found not fit to be tried within twelve months and that person is detained in a hospital or other place, s 20BD requires that the Attorney-General of the Commonwealth review the order at least once every six months and determine whether the person should be released from detention. In considering whether the person should be released, the Attorney-General is required to consider a report from a duly qualified psychiatrist or psychologist and a report from another duly qualified medical practitioner. Power to order release may only be exercised if the Attorney-General is satisfied that the person is not a threat or danger either to himself or to the community.
All of these provisions bespeak a concern with mental illness not physical illness. That conclusion is reinforced by the fact that Division 6 describes an elaborate and involved procedure which is unsuitable when dealing with relatively straightforward physical ailments which may require a trial to be adjourned for a short time. For example, a defendant may have been injured in a car accident on the eve of trial and his injuries are such that the trial must be adjourned. It appears to be absurd to suggest that the procedures prescribed by Division 6 must be observed on an application to adjourn the trial because the defendant is thereby unfit for trial.
For these reasons, there are questions whether the decision in R v Burns is correct. This is not the occasion to determine that issue. It is sufficient to note that there are properly arguable grounds which call that decision into question.
Furthermore, there is little judicial discussion of the operation of s 20B. One instance is the unreported judgment of Judge Wilson in R v Warming (District Court, 1 October 1993, D2911) which was followed in R v Burns. In Warming the question was whether the physical ill-health of the accused rendered him unfit to be tried and that issue was determined pursuant to s 20B. In Polyukhovichv The Commonwealth (1990) 64 ALJR 589, a stay was granted of the determination of the defendant’s fitness to be tried but that case did not require the court to consider whether s 20B distinguished between physical unfitness and mental unfitness. Similarly, in Kesavarajah v The Queen (1994) 181 CLR 230 it was unnecessary to consider the distinction between physical and mental unfitness for trial.
The appellant’s heart condition does not mean that he is unfit to plead. He has never suggested that. Instead, he says that the length of the trial coupled with the fact that he must conduct his own defence will cause such stress that he will not be able adequately to defend himself. He points to the risk of a heart attack which might be fatal. As Dr Ayres noted, the stress would be less if he was legally represented. In one sense, the appellant’s physical condition might be said to affect his mental capacity to represent himself. But that does not mean that the appellant is not mentally fit to be tried. It goes instead to his capacity to represent himself.
For these reasons, there is a real question whether the issue of the appellant’s fitness for trial falls outside Division 6 of the Crimes Act. If that is so, the appellant’s application that his trial should have been stayed or adjourned should not have been determined by a jury pursuant to Division 6 but, instead, by the trial judge exercising the inherent jurisdiction of the court to ensure that an accused person is fairly tried. In other words, it appears that the procedure for determining that issue may have miscarried.

A Question to be Stated

For all of these reasons, I would make 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.

LANDER J. This court has before it two applications by the accused for leave to appeal.
Mr Sexton who has been jointly charged with a number of other persons with being knowingly concerned in the importation of a prohibited import was first arraigned in the District Court on 31 August 1998 at which time he pleaded not guilty.

On 26 May 1999 he made an application pursuant to r 8 of the Supreme Court Criminal Rules to have this matter stayed because he was indigent and not in a position to instruct counsel. That application was refused. On 15 June 1999 one of Mr Sexton’s co-accused, Mr Thompson, pleaded guilty and was remanded for sentencing. On 21 June 1999 one other of Mr Sexton’s co-accused, Mr Collins, made an application for a separate trial. That application was dismissed on 16 July 1999.
On 11 October 1999 a Judge of this Court commenced hearing voir dire applications which completed some time in February 2000.
On 23 February 2000 counsel who then appeared for Mr Sexton on the voir dire hearing sought and was granted leave to withdraw as counsel.
On 23 February 2000 Mr Sexton applied pursuant to r 8 that the proceedings be stayed permanently or until further order or in the further alternative that the trial be adjourned. All three applications were made upon the basis that Mr Sexton’s health would not allow him to be tried.
The r 8 notice provided the following particulars:
“That the applicant Sexton suffers from coronary artery disease which is medically inoperable. Medical opinion is that the stress and emotional demands of a criminal trial will cause the applicant to suffer severe chest pains, angina or further heart attacks, all of which could necessitate periods of hospitalisation. Each episode will cause further deterioration to the applicant’s medical condition. The applicant’s medical condition is unlikely to improve due to several factors. It is in the interests of justice and fairness to the applicant that his trial in these proceedings be permanently stayed. The enormous extra stress placed on the applicant’s heart due to his hearing loss will of itself be traumatic. In view of the applicant’s medical condition and the maximum medication (drugs) prescribed it is highly probable that as the trial progresses he will be unable both physically and mentally to properly defend himself.
The applicant due to extreme concern for his health has sought the advice of Dr C Heinrich Tusmore, Dr Bronte F Ayres, cardiologist, Ashford and Dr M R Ewer, psychiatrist, Unley who are currently conducting tests.”
The learned Trial Judge empanelled a jury for the purpose of determining whether the applicant was unfit to be tried.
In addressing the jury panel immediately before the empanelment of the jury his Honour said this:
“What we are about to embark on is a somewhat unusual process. Normally when a jury is selected it is selected for the purpose of deciding whether a person, who has been charged with an offence, has been proven guilty of the offence. That is not the purpose of the selection of the jury this morning. Here Mr Sexton has been charged, and pleaded not guilty, to the offence about which we will speak in due course, and an issue has arisen as to whether his medical condition is such that he is unfit to stand trial. Because this is a Commonwealth offence which has been charged, that is to say, an offence under a Commonwealth statute, the relevant statutory provisions require the question of whether or not Mr Sexton is unfit to stand trial to be decided by a jury, and you are the panel from which a jury will be selected to determine that question. That is the sole question that this particular jury will have to determine. Depending upon what determination is made, then other situations will then develop, so that it is a special purpose jury, in that sense.”
The charges were then read over. The jury was empanelled.
His Honour then said to a jury:
“Because this is an issue raised by an accused, the procedure is somewhat, in a sense, reversed. Usually, of course, the prosecution commence the proceedings and develop the prosecution case, and the defence follows on. Here, of course, it is an application by the accused himself, and therefore he has the initiative in carrying the proceedings. It is open to him to call any witness evidence that he would wish to call, and to, himself, give evidence if he chooses to do that.
When he has concluded putting before you any elements that he wishes to put before you, it is open to the Crown, if it so desires, itself, to call evidence, and then you will be addressed by both sides in the normal way as to what flows from the evidence.”
His Honour then identified some agreed facts. He told the jury the likely length of the trial. He explained to the jury that the applicant would need to acquaint himself with statements and documents of the proposed prosecution witnesses because it was the applicant’s intention to represent himself at the trial. He told the jury that the applicant would, at trial, have to cross-examine prosecution witnesses and if elected to give evidence, give evidence.
He then explained Mr Sexton’s medical condition and Mr Sexton’s familial history of coronary disease.
He then invited Mr Sexton to call Dr Ayres. Dr Ayres was called and the learned Trial Judge asked Dr Ayres a number of questions and after the conclusion of those questions Mr Sexton himself asked some questions of Dr Ayres. Dr Ayres was then cross-examined by Mr Rice QC, counsel for the Commonwealth Director of Public Prosecutions.
At the conclusion of Dr Ayre’s evidence the applicant advised his Honour and the jury that he did not wish to give evidence and did not wish to call any further evidence.
Mr Rice addressed the jury and asked the jury to find on the balance of probabilities that Mr Sexton was fit to stand trial. Mr Sexton then addressed the jury and his Honour summed up.
In summing up his Honour said:
“The first point to be made is that the concept of unfitness to be tried is not directed, of course, to what might be some merely transient, short term problem which can be cured by a short adjournment, for example. It focuses on the likely medical condition of Mr Sexton for the immediate future. In other words, what we are talking about is his ongoing medical condition, and not the fact he might be too ill for a few days to start his trial, that could be cured by a simple adjournment.
In general, it is proper that an accused person is unfit to be tried where a jury is satisfied that, due to his medical condition, he is unable, in some significant manner, properly to participate in the conduct of his trial. Such a situation might arise in either of two ways, or perhaps a combination of both of them: First, it might be that the medical condition of an accused person is such it might have a serious adverse affect on his capacity to efficiently and effectively go to the trial process itself. For example, his concentration would be relevant in that area. Features which may be of important (sic) could be an appreciable impairment to concentrate adequately on what is occurring, to give an adequate performance in the wooden box, or the existence of symptoms or physical illness which might bring about a dullness of thought or reaction which would materially inhibit an accused person in attending to his necessary participation in the trial in the manner in which I have described in some detail to you. These are only illustrations of the concept, most certainly not exclusive rules. You are entitled to consider any aspect which, on the evidence, you regard as important as bearing on the physical and emotional capacity of Mr Sexton.
Second, it may be that the evidence indicates that the participation of the accused in the trial is likely to give rise to such a state of pain, discomfort or illness, or even danger of grave further deterioration of health, that it would be quite unreasonable and unfair to subject him to such a situation.
It is in that sort of area that it is important that you assess what risks tend to emerge from the material before you. In the present case it is the application of Mr Sexton that you should find that he is, indeed, unfit to be tried. As to this, I must tell you that the usual criminal court standard of proof beyond reasonable doubt, which normally lies upon the prosecution in proving of criminal charge, does not apply in relation to this issue.
An accused person comes into court presumed, in the first place, to be fit for trial, and, of course, Mr Sexton carries the onus of rebutting that presumption. However, he bears a standard of proof in doing so, and in proving that which he asserts, which is much lower than the normal prosecution onus. Your task is to decide whether he has satisfied you, on the medical evidence, only on the balance of probabilities, that he is medically unfit to stand trial. To decide something on the balance of probabilities is simply to decide whether, in your view, its existence is more probable than not.”
His Honour continued the summing up and said to the jury shortly before they retired:
“After you have deliberated on the matter and come to a conclusion, I will ask you to return to court, and you will then have the question put to you by my associate, ‘Did you find the accused unfit to stand trial on the information filed against him?’ Your response to that question should be a simply ‘Yes’ or ‘No’. ‘Yes, he is unfit’ - ‘No, he is not unfit’. So that is the decision you make, and the answer your foreperson should give to the question. You should not answer the question ‘Yes’ unless you are satisfied that it is more probable than not that Mr Sexton is, by reason of his medical condition, unfit to stand trial on the information against him. That’s the test. If you are not so satisfied, your answer should be ‘No’. In the event that you answer the question put to you ‘Yes’, I’ll not discharge you at that stage. I will ask you to retire again to the jury room, because the provisions of the Crimes Act are quite complicated as to what happens in the event of an answer one way or the other, or at least in the event of an answer ‘Yes’. It may be necessary to require you to consider some further issues. I’ll need to hear the Crown Prosecutor as to that. It is a very complicated situation. I might say the Act is relatively recent. This is why it is a fairly unusual procedure.”
Immediately before the jury retired a juror asked the judge “say we sort of said he was unfit to serve the court case, does that mean he gets completely dismissed of the charges or not?” His Honour told them that that was an issue that should not really concern the jury.
The jury retired but later sent a message to the court with a question. The question was “does it mean personally the defendant himself to be standing trial, or if in the event he was to get counsel?” His Honour told the jury that the question before them was whether they found him unfit to stand trial on the basis of the evidence before the jury, which is to the effect that he will have to represent himself. Again he told them they should not concern themselves with why that situation had developed.
The jury retired again and when they returned they unanimously answered the question his Honour said would be posed to them “No”.
That verdict was returned on 7 March 2000. On 8 March the applicant wrote to the learned Trial Judge seeking a copy of the transcript so that he might proceed to file an application for Leave to Appeal and an Application for a Stay. On 13 March the trial was due to commence. Immediately before the commencement of the trial the applicant sought leave to appeal from the decision given on 7 March 2000. In the alternative the applicant sought a stay of the trial.
The Trial Judge refused both applications. His Honour, in ex tempore reasons, concluded that there was no right of appeal available to the applicant under s 352 of the Criminal Law Consolidation Act 1935 but even if there was the applicant had not demonstrated that there were any special reasons which would allow for the grant of leave.
His Honour after refusing leave to appeal then refused the stay application.
The stay application depended upon the success or otherwise of the leave application. If leave had been granted it would have been appropriate to order a stay. If leave was refused inevitably the stay application had to fail.
The accused was arraigned before the jury panel and a jury was empanelled and the matter was adjourned until 14 March 2000.
Immediately before the jury entered the court room Mr Sexton left the court room suffering from pain in the neck and feeling unwell. The matter was adjourned until the afternoon so that some assessment could be made of Mr Sexton’s medical condition.
The matter was further adjourned until 20 March 2000.
Eventually an application was made to his Honour to sever the accounts against Mr Sexton from those against his co-accused. His Honour acceded to that application. Mr Sexton’s trial has been adjourned sine die.
There are as I have said two applications for leave to appeal. The first dated 17 March 2000 is against “the verdict of the jury delivered on 7 March 2000 that the defendant is not fit to stand trial upon the Information filed against him on one count of Being Knowingly Concerned in the Importation of a Prohibited Import (contrary to s 233B(1) of the Customs Act, 1901).”
The grounds of appeal can be summarised:
(1)... The finding of the jury was against the weight of the evidence.
(2)The trial judge erred in his summing up in a number of respects.
(3)... The trial judge failed to take into account the decision of the High Court in R v Kesavarajah (1994) 181 CLR 230 at 245-246.
The second application for leave to appeal is also dated 17 March 2000. That application seeks leave to appeal from the decision of the learned Trial Judge given on 13 March 2000 when he refused a stay of proceedings pending an appeal against the jury verdict that the defendant was fit to stand trial.
The grounds of that application are that the trial judge should have granted a stay of proceedings pending an appeal to the Full Court against the verdict that the defendant is fit to stand trial due inter alia to the medical condition of the defendant. The second application need not be considered any further. As it happens the failure of the learned Trial Judge to grant a stay has caused no embarrassment to the applicant. His trial has not started and so the refusal to grant a stay has caused him no disadvantage.
If, however, his Honour was right that no appeal lay from the jury decision then of course the application of a stay inevitably had to be refused.
I can say at the outset that in my opinion no appeal lies from the decision of the jury given on 7 March 2000. An appeal is a statutory right. The applicant if he has any right of appeal must be able to point to a provision of the Criminal Law Consolidation Act which would enable him to appeal. The only provision upon which the applicant could conceivably rely is s 352(1)(c). That paragraph allows the defendant to appeal to the Full Court before the commencement of the trial if a court makes a decision on any issue antecedent to trial that is adverse to the defendant but only with the leave of “the court of trial”.
The expression “issue antecedent to trial” is defined in s 348:
“Means a question (whether arising before a trial) as to whether proceedings on an information or a count on an information should be stayed on the ground that the proceedings are an abuse of process of the court.”
The decision from which leave was sought is not a decision of that kind.
A jury is not entitled to determine by verdict or otherwise whether the proceedings are an abuse of the process of the court. That is the decision for a judge and a judge alone. The matter complained of in this case is not an issue antecedent to trial.
It follows therefore that there is no right of appeal before trial from the “verdict” of the jury that a person is unfit to plead or unfit to be tried.
Moreover, in my opinion, the Judge, having refused leave to appeal, the applicant has no right to seek leave to appeal from this Court. Section 352(1)(c)(i) provides that the accused may only appeal “with the leave of the court of trial (but leave will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial).”
The subsection confines the accused’s rights of appeal to questions antecedent to trial, but only if granted leave by the trial judge and then only if the special reasons referred to in the section have been made out. There are good reasons for limiting the accused’s rights of appeal. If it was otherwise there would be a real risk that the criminal trial process would be fragmented by appeals on matters of an interlocutory nature. The legislature has made it a condition precedent of the right of appeal that the court of trial grant leave. That is because the court of trial is in a better position during the trial to decide whether the point sought to be agitated is of sufficient importance to satisfy the special reasons referred to in the subsection.
The applicant’s rights of appeal were exhausted when the court of trial refused leave. The trial Judge was right to refuse leave because there was no issue antecedent to trial from which an appeal could lie.
When these applications were first called on all members of the court indicated to the applicant’s counsel that the applicant had significant procedural difficulties in his way. The matter was adjourned to enable the applicant to consider his position.
When the matter resumed the applicant handed up an “amended notice of appeal” in which the appellant sought to add a further ground of appeal in the following terms:
“The issue of the appellant’s fitness to be tried ought to have been determined by the trial judge sitting alone and not by jury.”
That amended “ground of appeal” was as a result of the members of the court also indicating to counsel when the matter was first called on that it may have been that the procedure which was adopted was not appropriate and that the question was not one for a jury but a question for the judge.
That application also has to be refused. It suffers from the same procedural difficulty as the original application for leave to appeal from the trial Judge’s refusal to grant leave to appeal.
But where does that leave the applicant if in fact the wrong procedure has been adopted. It would be unfortunate if this ‘verdict’ could not be challenged before the applicant’s trial was concluded, especially so because the applicant’s case is that if he participates in the trial he will be caused physical harm. The applicant cannot, in this case, seek judicial review. Judicial review does not lie from this Court to another Judge of this Court: R vWatson; ex parte Armstrong (1976) 136 CLR 248 at 263; Bird v Free (1994) 126 ALR 475.
The applicant is charged with a Commonwealth offence. The learned Trial Judge adopted the procedure he did because he felt obliged because of the provisions of s 20B of the Crimes Act 1914.
That section provides:
“20B (1)    Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person’s fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person’s legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.
(2)    If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.
(3)    Where a court:
(a).... to which proceedings have been referred under subsection (1); or
(b)before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;
finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.
(4) Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(6)    For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.
(7)    In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:
(a).... the person may give evidence or make an unsworn statement; and
(b)the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and
(c).... the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.”

Section 16 provides that “unfit to be tried” includes unfit to plead.
Section 20B(1) requires a magistrate on any committal proceedings, being proceedings begun after the section has commenced, to refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial if the question of the persons fitness to be tried is raised by the prosecution, or the accused or the accused’s legal representative.
The procedure in s 20B(2) is relevant if, on a matter referred by a magistrate under s20B(1), the court determines that the person is fit to be tried.
Section 20B(3) applies where a court finds a person charged unfit to be tried, upon referral by a magistrate. The court must determine whether there has been established a prima facie case that the person committed the offence concerned.
Section 20B(3) has two limbs to it. First it requires a court to determine that a person is unfit to be tried. Secondly if a court finds a person unfit to be tried the court must determine whether there has been established a prima facie case that the person committed the offence concerned.
The legislation does not make it clear in s 20B(3) whether the court there referred to is the court consisting of the judge or the court consisting of a judge and jury. I will return to that.
If however a court does find a person charged unfit to be tried then the court must determine whether a prima facie case has been established. Section 20B(6) provides that a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.
The exception provided in s 20B(6) would have at first blush appear to apply to any mental element which is lacking by reason of the person being unfit to be tried or unfit to plead. It is not easy to imagine any physical ailment especially of the kind that the applicant is suffering which would have any impact on s 20B(6). That may suggest that s 20B(6) has no application where the person is seeking a determination that he is unfit to be tried by reason of a physical ailment entirely unconnected with the offence for which he is charged.
Section 20B(7) allows the accused person to participate in the prima facie case even though that accused person is unfit to be tried or indeed unfit to plead.
In the circumstances where the person has a physical ailment which is of itself so serious that the person cannot participate in the trial and is therefore unfit to stand trial then of course that same physical ailment would prevent that person participating in the determination of the prima facie case.
If s 20B were to apply in such circumstances presumably the accused person would also apply to have the prima facie case stayed because he or she could not participate in the hearing of that case.
Again that might suggest that s 20B does not apply to applications for an adjournment or a stay based upon a physical ailment unconnected with the offence charged.
Section 20B is but one section in Division 6 of Part 1B of the Crimes Act. That division is headed “Unfitness To Be Tried”.
Section 20BA(1) provides that if the court determines that there has not been established a prima facie case the court must dismiss the charge against the person and, if the person is in custody, release the person from custody.
If on the other hand, however, there has been established a prima facie case, but the court is of the opinion having regard to matters mentioned in s20BA(2), that it is inappropriate to inflict any punishment, or inflict punishment other than a nominal punishment, the court must again dismiss the charge and if that person is in custody order the release of the person from custody.
Where a court determines there has been established a prima facie case but the court does not form the opinion that it is inappropriate to inflict any punishment, the court must, as soon as practicable, after making the determination of a prima facie case, determine whether “on the balance of probabilities” the person will become fit to be tried within the period of 12 months after the day the person was found to be unfit to be tried; s20BA(4).
If a person is then found to be fit to be tried within a period of 12 months the court must, at the time of making that determination, also determine whether the person is suffering from a mental illness or a mental condition for which treatment is available in a hospital and whether the person objects to being detained in a hospital.
Section 20BB then provides for various procedures in the event of a finding of the kind to which I have just referred.
Section 20BC provides for procedures where a person is found that he or she will not become fit to be tried within 12 months after finding that the person was unfit to be tried.
Again it provides for the court determining whether the person is suffering from a mental illness or a mental condition for which treatment is available in a hospital.
Division 6, it seems to me, might be argued to only apply to persons who are suffering from a mental illness or a mental condition.
There is no doubt s 20B applies in circumstances where the unfitness to plead or unfitness to stand trial arises out of some mental disorder: R v Kesavarajah (supra). Indeed s 20B picks up the relevant State legislation. In this State such an inquiry would be governed by Part 8A of the Criminal Law Consolidation Act. But that Part has no application to a person who claims to be physically impaired and therefore unable to stand trial. There is in fact no statutory procedure in this State for an application of that kind.
The question that had to be determined is whether s 20B has any application in circumstances where an applicant is suffering from a physical ailment which might induce stress and might cause further physical injury to the accused and all of which might prevent the accused person participating in the trial. There is no question in this case of the accused’s fitness to stand trial.
The purpose of s 20B is to guard against a person being convicted in circumstances where the person was unable to form the necessary intent being an element of the offence or alternatively if he or she has become unable by reason of a mental incapacity to plead or participate in his or her trial. But that does not necessarily answer the question whether s 20B requires the verdict of a jury where the objection to the trial continuing is on the basis that the applicant will be caused physical harm.
There is no right of appeal. Judicial review is not available. What other procedures might be used for the purpose of determining the correctness or otherwise of the procedure which was adopted?
Section 352(2) allows this Court, on an appeal or an application for leave to appeal, to require the court of trial to state a case on the questions raised in the appeal or proposed appeal and the matter will be then dealt with in accordance with the provisions applicable to cases stated in the same way as if the questions had been reserved.
However the applicant could not avail himself of s 352(2) in this case because there is no competent appeal or competent application for leave to appeal to this Court. The jurisdiction which is given to this Court under s 352(2) assumes that the Full Court is either seized of a competent appeal or application for leave to appeal.
The Judge could have, if he had been asked, reserved for consideration of this Court a relevant question on an issue antecedent to trial or relevant to the trial or sentencing of the defendant under s 350(1) of the Criminal Law Consolidation Act. However he was not asked to do that.
Section 350(2) provides:
“(2).. A relevant question must be reserved for consideration and determination by the Full Court if -
(a). the Full Court so requires (on an application under this section or under another provision of this Part), or
(b)... the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court.”
Clearly, of course, para (b) has no application. The question is whether para (a) has any application.
A relevant question is defined in s 350 to mean:
“(a) A question of law; or
(b) to the extent that it does not constitute a question of law - a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.”
This Court can only require a Judge to reserve for consideration and determination by this Court a relevant question which comes within the definition in s 350(a)(1). I think an application for an adjournment or a stay by reason of physical impairment in the circumstances which are under consideration in this case does give rise to both a question of law and a question about how a judicial discretion should be exercised. It seems to me therefore that the question which was before the trial Judge is a relevant question.
During the hearing the applicant indicated that he would apply under this section for the reservation for consideration and determination of that relevant question and therefore has invoked the jurisdiction given to this Court under s350(2).
It seems to me therefore that the only way this Court can become seized of this matter to determine whether the procedure adopted was correct is if this Court requires the Judge to reserve for consideration of this Court the question whether on an application of this kind the question for unfitness to stand trial is a question for the jury or for the Judge.
It could be said, in a sense, that this matter has become academic. In fact the trial Judge adjourned the trial because the applicant was unfit in the opinion of the Trial Judge to stand trial. He did not refer the matter back to jury but made that determination himself. However, there is a verdict of the Court which says that the applicant was at the time that the verdict was delivered, fit to stand trial.
It seems to me that it would be appropriate in the interests of the administration of justice to ask the Trial Judge to reserve for this Court’s consideration a question of law in the terms proposed.
NYLAND J. I agree with the reasons of Debelle J and with the order he proposes.

[2000] SASC 124

16 May 2000