R v Tier - [2001] NSWCCA 53

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v T J Tier [2001] NSWCCA 53

FILE NUMBER(S):
60827/99

HEARING DATE(S): 8/02/2001

JUDGMENT DATE: 29/03/2001

PARTIES:
Regina
Terrence John Tier

JUDGMENT OF: Sheller JA Grove J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 95/11/0880

LOWER COURT JUDICIAL OFFICER: Rummery DCJ

COUNSEL:
M C Marien (Crown)
G P Craddock/R Rasmussen (Appl)

SOLICITORS:
S E O'Connor (Crown)
M Lorraine Spooner & Assocs (Appl)

CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE
Unfitness for trial due to mental illness
long running trial
whether issue raised in good faith
obligation to halt trial and resolve issue of unfitness

LEGISLATION CITED:
Drug Misuse and Trafficking Act, 1985
Mental Health (Criminal Procedure) Act, 1990
Crimes Act, 1958 (Vic)
Crimes Act, 1900
Evidence Act, 1995

DECISION:
Appeal allowed.
Conviction quashed and new trial ordered.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60827/99

SHELLER JA
GROVE J
KIRBY J

Thursday 29 March 2001

REGINA v Terrence John TIER

REASONS FOR JUDGMENT

SHELLER JA: I have had the privilege of reading the reasons for judgment prepared by Kirby J. I have no need to repeat the facts or the relevant statutory provisions. His Honour has emphasised the cardinal principle that no one can be tried for a crime unless that person is in mental condition to make a proper defence; R v Pritchard (1836) 7 Car & P 303; 173 ER 135 at 304 and 135. If the Court becomes aware that the accused is unfit to be tried, the trial must be halted. The Mental Health (Criminal Procedure) Act 1990 Part 2 is intended to establish a procedure to deal with the question of a person’s unfitness to be tried for an offence when it is raised, as it may be, by any party to the proceedings in respect of the offence or by the Court; s5. That question is to be tried on the balance of probabilities; s6. The question, although preferably to be raised before the person is arraigned, may be raised at any time during the course of the hearing of the proceedings in respect of the offence and may be raised on more than one occasion in respect of the same proceedings; s7.
Subsection (1) of s10 directs the Court, if the question of a person’s unfitness to be tried for the offence is raised after arraignment, to conduct an inquiry in order to determine whether the person is unfit to be tried for the offence. Subsection (2) directs the Court not to conduct an inquiry into the question of a person’s unfitness to be tried for an offence “unless it appears to the Court that the question has been raised in good faith”.
No doubt, subs (2) was designed to prevent allegations of unfitness, known to be false, interrupting trials. In Ngatayi v The Queen (1980) 147 CLR 1 at 8-9, in a passage which Kirby J has quoted, Gibbs, Mason and Wilson JJ, considered the procedure laid down in s631 of the Western Australian Criminal Code. This procedure applied if it appeared to be uncertain, for any reason, whether the accused was capable of understanding the proceedings at the trial, so as to be able to make a proper defence. Their Honours said:
“This of course does not mean that it has to be proved that it is uncertain that the accused is incapable before the judge is required to empanel a jury. Once a real question as to incapacity is raised, the Judge must follow the procedure laid down in the section.”
In my opinion, in this context to qualify a question as “real” means the same as to qualify it as one that “has been raised in good faith”. Other words or phrases such as “genuinely” or “on the basis of a belief honestly held” may help to explain what is intended.
It seems to me that the learned trial Judge thought something more was required. I cannot otherwise understand how he came to the conclusion he did on the various occasions Kirby J has referred to. In particular, in his reasons for judgment of 12 August 1999, which Kirby J has quoted, the trial Judge said:
“I am not prepared to come to a conclusion on the balance of probabilities that the question of his fitness to be tried has been raised in good faith. It may be that Mr Tier is unfit to be tried. I say that would have to be a possibility. It is only a possibility. It is to my mind far from a probability.”
I do not understand how it could be said that, if there was a possibility that the appellant was unfit to be tried, the question of whether he was indeed unfit to be tried could be said not to have been raised in good faith. With due respect, this conclusion may have resulted from a misunderstanding of the expression “a real and substantial question”; see Eastman v The Queen (2000) 74 ALJR 915 paras 28, 66, 319 and 400. In Kesavarajah v The Queen (1994) 181 CLR 230 at 245, Mason CJ, Toohey and Gaudron JJ repeated the phrase in Ngatayi and said:
“It cannot be doubted that, in the context of s393 [of the Crimes Act (Vic) 1958], ‘[o]nce a real question as to incapacity is raised, the judge must follow the procedure raised in the section’. Sometimes the test has been stated in terms of whether there is a reason to doubt the accused’s fitness to stand trial. However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was fit to be tried.”
I am satisfied that his Honour, with due respect, applied a wrong test. On the basis of the material before him, his Honour was bound under s10(1) to conduct an inquiry in order to determine whether the appellant was unfit to be tried for the offence. For this reason, I joined in the orders made by the Court on 8 February 2001.
**********

IN THE COURT OF
CRIMINAL APPEAL

60827/99

SHELLER JA
GROVE J
KIRBY J

Thursday 29 March 2001

REGINA v TERRENCE JOHN TIER

JUDGMENT

GROVE J : On 8th February I joined in orders that the appeal be allowed, the conviction and sentence quashed and a new trial ordered. The last mentioned is, of course, subject to any requisite procedure of the Mental Health (Criminal Procedure) Act, 1990 if it be appropriate and the exercise of the discretions vested in the prosecutor. I have had the advantage of reading the reasons for judgment of Kirby J and I express my agreement with them and also with the additional remarks of Sheller JA.
**********

IN THE COURT OF
CRIMINAL APPEAL
60827/99

SHELLER JA
GROVE J
KIRBY J

Thursday 29 March 2001
REGINA -v- Terrence John TIER
JUDGMENT

KIRBY J: Mr Terrence John Tier (the appellant) was charged with having knowingly taken part in the manufacture of not less than a commercial quantity of amphetamines (contrary to s24(1) of the Drug Misuse and Trafficking Act, 1985). The offence was said to have taken place between 1 January 1991 and 16 August 1992. Mr Tier pleaded not guilty. In 1994 he was convicted. On appeal, however, the conviction was quashed, and an order made for a new trial. A similar order was made in respect of Mr Karim Elfar. Mr Elfar was said to have been involved with Mr Tier in the same illegal enterprise.
The new trial of Mr Tier and Mr Elfar began in the District Court in May 1999. However, after seven weeks, the jury was discharged. A week later, on 29 June 1999, a new jury was empanelled. The trial began once more. Mr Tier was on bail. On Monday 9 August 1999, when the Crown case was almost complete, Mr Tier failed to appear. Enquiries were made by his solicitor, Ms Spooner. She ascertained that he had been admitted to the psychiatric unit of the Royal Prince Alfred Hospital.
The trial Judge was obliged by the Mental Health (Criminal Procedure) Act, 1990 (“the Act”), to observe a particular procedure where a question had been raised concerning an accused person’s unfitness to be tried. The appellant contends that his Honour failed to observe the requirements of the Act, which were mandatory. When the matter was argued on 8 February 2001, it was apparent that the appeal had to succeed. At the conclusion of argument, therefore, the appeal was allowed. An order was made quashing the conviction, and ordering a new trial. No judgment was given at that time. I now provide my reasons for joining in that order.
The Crown Case
Mr Tier has tertiary qualifications in agriculture. It was the Crown case that he was engaged by Mr Elfar as the chemist in the manufacture of amphetamines. In December 1991, Mr Elfar took out a short term lease on factory premises at Moss Vale. He told the owner that he wished to use the premises for the storage of earthmoving equipment used in his plumbing business. The lease was to run for three months. Mr Elfar paid the $12,000 rental in cash in advance.
At about the same time, Mr Elfar purchased laboratory equipment, which was then installed in the factory. The locks on the factory were changed. Mr Tier, meanwhile, purchased a number of chemicals, using cash. He did so providing a false name (Tharrin). At the first trial, in a statement to the jury, Mr Tier said that he had used a false name because he had a number of creditors. He did not want his creditors to know about his new business venture.
The chemicals purchased were substances used in the manufacture of amphetamines, employing what is called the Leuckardt method. The chemicals themselves were pungent. The person from whom they were purchased noticed that Mr Tier already smelt strongly of one of these chemicals.
The police became aware of these purchases soon after they were made. They observed the delivery of the chemicals to a guest house where Mr Tier was staying, and their transfer from the guest house to the factory. The transfer was made by a utility driven by Mr Tier, with Mr Elfar as his passenger.
The police inspected the factory when it was unoccupied, accompanied by an analytical chemist. Samples were taken, and a listening device installed. An observation post was then established, and a video made of those entering and leaving the factory.
On 28 March 1992, a conversation took place between persons identified as Mr Elfar and Mr Tier. Mr Elfar was recorded as saying: “It’s good, good go. It’s nearly speed already.” “Speed” is, of course, a colloquial term for amphetamines.
Search warrants were later executed both on the factory and the guest house. Various items were seized, including some of Mr Tier’s clothing. The clothing smelt strongly of phenylacetic acid, an important ingredient in the manufacture of amphetamines. Samples taken from the laboratory equipment contained the by-products of the manufacture of amphetamines. Of the 14 drums of ethylphenylacetate delivered to the guest house in March 1997, 13 were recovered, and were empty.
At the first trial, neither Mr Tier nor Mr Elfar gave evidence. Each made a statement to the jury. At the retrial, the Crown tendered, as part of its case, each of these statements. The accounts of Mr Tier and Mr Elfar were similar. Each said that Mr Tier had been engaged to conduct experiments with a liniment which was unusable because of its smell. Mr Tier believed he may be able to get rid of the smell. At some point the objective changed. Mr Tier was then instructed to create a stimulant, said to be superior to the illegal drug amphetamine, but a substance which was perfectly legal. Mr Tier asserted that at no stage did he intend to manufacture amphetamines.
The First Application
The circumstances of the first application for a hearing in respect of Mr Tier’s fitness to stand trial have already been described. On Monday 9 August 1999, as the Crown case was nearing its close, Mr Tier failed to appear, he then being on bail. He had been admitted the day before to the psychiatric unit of the Royal Prince Alfred Hospital. The psychiatric registrar of that unit, Dr Simpson, provided a report. The report included a brief history, which was in these terms:
“He was admitted to the Missenden Psychiatric Unit on 8 August 1999, with a provisional diagnosis of major depression, partially treated by his private psychiatrist, over the last two months.”
Dr Simpson concluded his report with these words:
“It is difficult to comment on his prognosis at this point, without a further period of observation. It is however, likely that he will remain an in-patient for the remainder of this week for further assessment and as such will be unable to attend court.”
The jury was told that Mr Tier had been admitted to hospital, and the matter could not proceed that day. They were asked to come back the following day.
That afternoon Mr Tier’s counsel, Mr Rasmussen, attended the Royal Prince Alfred Hospital. He saw Mr Tier. He provided the following description of his client to the trial Judge the following day (Tuesday 10 August 1999), when the matter resumed: (T1454)
“… it was rather difficult to communicate with him. His ability to communicate with me was I think much affected. He spoke very slowly and very torturedly and if I’m permitted to say so he looked very frail.”
Arrangements were made for the psychiatrist who had been treating Mr Tier to see him at the hospital, and furnish a report.
The Crown in these circumstances suggested, sensibly, that the jury should be sent away until the following Monday. However, there was a complication. Counsel for Mr Tier had foreshadowed the need to call, and possibly interpose, an expert witness. The witness was only available until the end of the week. He would then be overseas until 31 August 1999, a date well beyond the projected conclusion of the evidence. After discussion, the matter was adjourned until the next day, Wednesday 11 August 1999. The possible need for a bench warrant was discussed.
On Wednesday 11 August 1999, counsel for Mr Tier tendered a report from the treating psychiatrist, Dr Mary Jurek (dated 10 August 1999). The report provided a detailed history. Mr Tier had been referred to Dr Jurek in May 1999 because his solicitors were concerned about him. He appeared depressed, and unable to provide them with instructions. Dr Jurek first saw Mr Tier on 21 May 1999. She then saw him a month later, on 21 June 1999.
Dr Jurek had not seen Mr Tier since 21 June 1999. Her report, however, included a description of the events leading to his admission to the Royal Prince Alfred Hospital. He had been found by a friend, crying and depressed. He had neglected his personal hygiene. He was taken to a doctor at Balmain. That doctor arranged for Mr Tier’s admission to the Royal Prince Alfred Hospital on Sunday 8 August 1999. Dr Jurek offered the following opinion: (p7)
“Because of his severely depressed state, Mr Tier requires specialised psychiatric treatment. Treatment with antidepressant medication is usually recommended for about 6 months for the first episode of depression and may need to be given for a year or more for subsequent episodes.
Currently he is unfit to undergo the rigours of a trial. He will remain unfit whilst depressed due to his low mood, cognitive impairment and suicidal risk.
The prognosis with appropriate treatment is reasonably good.”
It was not clear to the trial Judge whether Dr Jurek’s conclusion was based upon her consultation with Mr Tier in June 1999, or more recent discussions with the psychiatric staff of the Royal Prince Alfred Hospital. Counsel sought to clear the matter up by calling his instructing solicitor, Ms Spooner. Ms Spooner, before entering the law, had been a nurse. Her qualifications include psychiatric nursing. She had spoken to Dr Jurek. She was in a position to confirm that Dr Jurek had conferred with Dr Simpson and Associate Professor Buhrich of the Royal Prince Alfred Hospital. Ms Spooner had also made her own observations of Mr Tier. She said that she was simply unable to communicate with him. She formed the view that he was not able to instruct her. She had known him since 1995, and he was not the same person.
Counsel for Mr Tier, upon this basis, applied for a discharge of the jury. The application was refused. Counsel then sought an adjournment until the following day, Thursday 12 August 1999. He wished to explore calling the defence’s expert, perhaps in the absence of Mr Tier. He needed to obtain instructions.
A discussion then took place as to whether the trial could proceed in Mr Tier’s absence. Ultimately his Honour issued a bench warrant to secure Mr Tier’s presence. His Honour directed, however, that the warrant should lie in the Sheriff’s office until further order, since the solicitor for Mr Tier expressed confidence that she could secure his presence without the need of a warrant. She was concerned that a warrant may exacerbate his depression.
The following day, Thursday 12 August 1999, Mr Tier did not appear. His counsel withdrew his application to interpose the defence expert. Instead, an application was made under the Mental Health (Criminal Procedure) Act, 1990, for a hearing as to whether Mr Tier was unfit to stand trial.
After argument, his Honour rejected that application. He did not believe it had been made in good faith (s10(2)). It is convenient to postpone an examination of his Honour’s reasons, and to deal with them in the context of an examination of the Act.
Having rejected the application, his Honour then adjourned the hearing until the following day (Friday 13 August 1999). He directed the execution of the bench warrant to secure Mr Tier’s presence.
Mr Tier was brought to court on Friday 13 August 1999. An application was made for bail, and was refused. Notwithstanding the trial Judge’s finding of an absence of good faith, he made the following recommendation, directed to the gaol authorities: (T1580a)
“I strongly recommend that Mr Tier, who was, I presume, brought from Royal Prince Alfred Hospital to the Court today, be held in the hospital complex of the Community Corrections Centre in Sydney.
I make recommendations that Royal Prince Alfred Hospital make available to appropriate persons acting on behalf of Mr Tier his prescribed medication and copies of any documents appropriate to either accompany him or follow him to his place of custody and in the alternative, that he be given appropriate medication by the authorities of the Community Correction Service.”
The following Monday, 14 August 1999, arrangements were made for Dr Jurek to see Mr Tier. Counsel foreshadowed a further application for a hearing in respect of Mr Tier’s fitness to stand trial. Mr Tier was available for a psychiatric examination by any expert retained by the Crown, if it wished. The Crown, however, did not take up that offer.
The trial then continued, the Crown calling the remainder of its evidence, and closing its case.
Second Application
In the meantime Dr Jurek furnished a further report (16 August 1999). On the basis of that report, counsel made a second application, as foreshadowed. The transcript contains the following abbreviated account of the nature of the application: (T1833)
“(Mr Rasmussen advised he had some witnesses outside for his application pursuant to the Mental Health Criminal Procedure Act that his Honour embark upon an inquiry as to Mr Tier’s unfitness to be tried. His Honour enquired as to how the unfitness arises. Mr Rasmussen replied that it arises by reason of the fact he is suffering from a major depressive illness, symptoms of which in a general way affect his cognitive ability and therefore his ability to satisfy the matters alluded to by their Honours in The Queen v Presser. Mr Rasmussen handed up copies of the authority. Mr Rasmussen advised the application this morning is not an application that he be adjudicated unfit to be tried, but simply an application in order to satisfy his Honour that the issue is being raised in good faith as to his unfitness to be tried. Discussion ensued regarding the authority.)”
Counsel re-tendered the reports submitted on the first application, together with the further report of Dr Jurek of 16 August 1999. A Voir Dire examination was then undertaken in the absence of the jury. A number of witnesses were called. Associate Professor Neil Buhrich gave evidence. He was, at that time, Associate Professor of Psychiatry at the Royal Prince Alfred Hospital. He had examined Mr Tier. He described his symptoms, which included psycho motor retardation. Prof Buhrich said this: (T1837)
“Psycho motor retardation describes lack of movements which you see classically in a serious depression. You also get it in other conditions.”

Prof Buhrich added: (T1839)
“… he was slow to answer questions. I felt that he found it quite difficult to come to grips with some of the more complicated questions and that his concentration was poor.”
Prof Buhrich diagnosed major depression. He added the following: (T1841)
“He would be able to respond with yes and no but I don’t think he’d concentrate very much on the question and I am imagining that he might give a no answer just to get rid of the question or a yes answer just to get rid of the question…”
He did not think Mr Tier was well enough to attend court: (T.1846)
“I agreed with Dr Simpson’s letter in the sense that I thought he was not well enough to attend Court proceedings. I mean he could certainly attend in the sense that he could come here physically and sit down, and he could certainly attend in the sense that intellectually he knew what day, month and year it was, but the reason I felt he could not attend was I didn’t think, because of his poor concentration, that he would be able to participate in the Court proceedings. … “
Prof Buhrich considered the possibility that Mr Tier may be feigning his symptoms. In respect of that possibility, he provided the following opinion: (T1854)
“The other possibility was … there’s nothing wrong with him at all, he wasn’t depressed in any way whatsoever but he is just pretending to be depressed and come into hospital to avoid going to court. … that’s a possibility too but I don’t think so because people like that usually can’t sustain that pretence when they’re observed in the ward for a day or so. There are periods when they’re not thinking they’re observed, they’re with other patients, they talk animatedly, it’s just not - they can’t sustain it for more than a couple of days.”
Dr Simpson gave evidence along the same lines. He rejected, perhaps more emphatically, the suggestion that Mr Tier may be faking his symptoms.
Dr Jurek, Mr Tier’s treating psychiatrist, was then called. She confirmed the diagnosis of major depression. She specifically addressed the issue of fitness to be tried. She said this: (report 16.8.99 p3)
“I have now examined Mr Tier on 5 different occasions and in each of the consultations I was able to confirm my diagnosis of Major Depression. This diagnosis was also confirmed by Dr Buhrich, Dr Simpson and Dr Wilcox. Although he has been treated for this depression and at times has shown some clinical improvement, the overall situation is that he has now worsened and is suffering from a psychiatric condition which is potentially life threatening.
When seen today, it was quite evident to me that Mr Tier continues to be seriously depressed. Not only is he depressed in his mood but he is also not functioning well psychologically. Depression is not only a low mood state but also a medical condition characterised by cognitive impairment and vegetative symptoms affecting most systems of the body.”
Dr Jurek’s conclusion was expressed in these terms: (p6)
“Although for medical and psychiatric reasons, it is in Mr Tier’s best interests to have his matter resolved and finalised as soon as possible, in my opinion he would be prejudiced in receiving a fair trial were his trial to continue whilst in his current state of mind.”
Dr Jurek adhered to this view when giving evidence.
Having heard argument, his Honour again rejected the application. He did so upon the same basis. It did not appear to him that the issue of unfitness had been raised in good faith. Again, it is convenient to postpone, for the moment, an examination of his Honour’s reasons.
Accused’s Proposed Dock Statement
The trial therefore continued. It was open to Mr Tier to make a statement (as he had at the first trial), rather than give evidence. Apparently, a draft statement was made available to the Crown, who indicated that it gave rise to difficulties. The Crown said this: (T1991)
“It includes this statement that I am incapable of giving an account of myself. Now that raises the question of his unfitness again and you have to consider that. …”
A discussion then took place. It included the following comment by his Honour: (T1993)
“Mr Rasmussen, does your client want to challenge the rulings of the court that perhaps he didn’t find to his liking, is that what he wants to do? I mean he may like or not the rulings that the court’s given but the court’s given to me (sic) he has remedies in relation to that as he either knows or can be told but I’m not sure about him challenging in front of the jury. Is that what he wants to do?”
The accused, in this context, then chose not to make a statement. Dr Simpson, however, was called to state that, by reason of his depression, Mr Tier would find it difficult to give evidence, or make a statement.
I see no reason why Mr Tier should not have made the statement which was proposed. Had he done so, it would have reinforced the evidence of Dr Simpson. His Honour’s rulings did not, to my mind, prevent such a course.
No specific complaint is made in the Notice of Appeal concerning this aspect. It was an error capable, in my view, of giving rise to a miscarriage of justice. However, in view of my conclusions on the issues dealt with below, I need not further deal with the matter.
The jury ultimately returned verdicts of guilty against Mr Tier, and Mr Elfar. His Honour sentenced Mr Tier to penal servitude for 3 years and 4 months, with a minimum term of 1 year and 10 months. The minimum term was due to expire on 4 September 2001.
The Common Law in Respect of Unfitness
Before examining the Mental Health (Criminal Procedure) Act, 1990, it is instructive to look at the common law, and comparable legislation interstate. Justice requires that any person put on trial should be fit to stand trial. In R v Dashwood (1943) 1 KB 1, Humphries J said this, on behalf of the Court: (at 4)
“It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself.”
An accused person must be in a position to comprehend the course of proceedings, so as to make a proper defence (per Alderson B in R v Pritchard (1836) 7 Car & P 303; 173 ER 135; R v Presser (1958) VR 45 per Smith J).
Three things follow from this fundamental precept. First, the obligation to raise any issue concerning the fitness of the accused rests not simply with the parties, but with the Court. If, through observation or information (such as depositions), the Court becomes aware that the accused is unfit, it must call a halt to the trial and, through inquiry, resolve that issue. It should do so even though neither the prosecution, nor the defence, urges such an inquiry (R v Dashwood (supra) at 2; Eastman v The Queen (2000) 74 ALJR 915 at 969 (para 294) and 971 (para 300) per Hayne J.)
Indeed, the Court should recognise that very often it will be against the interests of an accused person to raise the issue of unfitness. Gleeson CJ, in Eastman, made the following remarks: (at 920, para 24)
“It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen ((1994) 181 CLR 230 at 249) that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.”
Secondly, the question being fundamental, it falls outside the adversarial system (per Hayne J in Eastman (supra) at 969, para 294). Smith J in R v Presser (supra) said this (following Hood J in R v Davies (1853) 6 Cox 326): (at 49)
“Considerations of onus, however, in the sense in which onus applies on issues joined, would seem to be foreign to an inquiry of the kind in question.”
His Honour added: (at 50)
“Upon the authorities, it seems to me that my proper course is to treat this inquiry as one which does not involve any issue joined between the parties, and one in which, notwithstanding the presumption of sanity, I should not regard the accused as bearing the onus of an issue, or require him to begin.”
Thirdly, if there is error as to whether the accused is fit to plead or stand trial, it is a fundamental flaw in the trial process (Gaudron J in Eastman (supra) at 924, para 62; Kesavarajah v The Queen (1994) 181 CLR 230 at 247). There is a mistrial.
When can it be said that a question as to the accused’s fitness to be tried has been raised? In Ngatayi v The Queen (1980) 147 CLR 1, a person described as a “full blood tribal aborigine” was indicted for murder. His counsel expressed concern that the accused could not understand the nature of the proceedings. He sought an inquiry into his fitness to be tried. The trial Judge declined to direct such an inquiry. On appeal, the High Court said this: (at 8)
“Once a real question as to incapacity is raised, the judge must follow the procedure laid down in the section. If counsel raises an issue of incapacity he should indicate the nature of the facts which in his submission will support the view that the accused is incapable of understanding the proceedings so as to be able to make a proper defence. The judge should then leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make a proper defence.”
In Kesavarajah v The Queen (supra), the accused was charged with the importation of heroin. The Crown produced two medical reports before the trial began. One diagnosed mental illness, and urged the trial be adjourned. The other thought the accused fit, although the report was qualified in a number of respects. The trial Judge, in these circumstances, determined that there was not a serious issue to be tried. When the matter came before the Court of Criminal Appeal, the Court (Phillips CJ, Crockett and Marks JJ) said this ((1993) 66 A Crim R 376: (at 396)
“If there is material that invites inquiry as to an accused’s fitness either to plead or (if the trial has commenced) to be tried, the judge is under an obligation to determine if there is ‘a real and substantial question’ as to such fitness.”
Their Honours added: (at 396/397)
“It must be borne in mind, as the Full Court pointed out in Khallouf ((1981) VR 360 at 364), that it is important to keep separate the two matters, namely a finding as to whether a real and substantial question as to fitness exists (which is for the judge to make) and a finding as to whether the accused is or is not unfit in the relevant sense (which is for the jury to make).”
When the same matter came before the High Court, Mason CJ, Toohey and Gaudron JJ said this (referring to the provisions of the Crimes Act, 1958 (Vic)) (supra): (at 295)
“…it cannot be doubted that, in the context of s393 ‘[o]nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section’ (Ngatayi (1980) 147 CLR at 9). Sometimes the test has been stated in terms of whether there is a reason to doubt the accused’s fitness to stand trial (R v Gibbons [1947] 1 DLR 45 at 49). However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried.”
Applying that test, the Court found error. There was, in that case, a real issue. The trial Judge, therefore, was obliged to follow the procedure laid down by the Act, which was to empanel a jury to determine whether the accused was unfit to stand trial.
The Mental Health (Criminal Procedure) Act, 1990
Part 2 of the Mental Health (Criminal Procedure) Act, 1990, deals with criminal proceedings relating to persons with mental disorders (ss2 to 30). A question concerning a person’s unfitness to be tried may be raised by any party to the proceedings, or by the Court (s5). It may be raised before the person is arraigned, or during the course of the hearing (s7(1)). It may be raised more than once (s7(2)). Once raised, the Court is obliged to conduct an inquiry (s10(1)) subject to two exceptions (which appear in ss10(2) and 10(4) below) (see Zhang [2000] NSWCCA 344, per Dunford J, at para 25). Section 10 is in these terms:
“s10(1)   If, in respect of an offence:
(a) …
(b) the question of a person’s unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence,
the Court must (except as provided by this section), as soon as practicable after … the question is raised, … conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.
(2)   The Court must not conduct an inquiry into the question of a person’s unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.
(3)   …
(4)   If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.”
The inquiry into unfitness is before a jury constituted for that purpose (s11(1)), unless the accused, on advice, consents to the Judge determining the issue without a jury (s11A). The safeguards of the Common Law have been reproduced and strengthened by s12 of the Act. That section is as follows:
“s12(1)   At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by counsel or a solicitor.
(2)   An inquiry is not to be conducted in an adversary manner.
(3)   The onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. …”
The issue of unfitness is to be determined upon the balance of probabilities (s6). If the accused is unfit, he or she must be referred to the Mental Health Tribunal (s14(a)).
The Question of Unfitness
This appeal is concerned with the proper construction of s10 of the Act. If there is a real and substantial issue as to the unfitness of the accused to stand trial, then justice requires that it be determined. It is impossible to imagine, in such circumstances, that a Court would then determine (having examined the motivation of the person who raised the question) that it was not raised in good faith, and decline to hold an inquiry (cf s10(2)).
Against this background, there are two ways in which the construction of s10 might have been approached. The section repeatedly uses the phrase “raise the question” concerning the unfitness of the accused. One may “raise the question” either by simply identifying the issue, without substantiation, or by the disclosure of some factual basis which, if accepted, gives rise to a real and substantial question concerning the unfitness of the accused to be tried. In Zhang the Court appeared to favour the first of these alternatives. Dunford J (with whom Foster AJA and Greg James J agreed) said this: (paras 28 & 29)
“28. It was submitted on behalf of the Crown that before s10 came into operation the trial judge had to be satisfied that there was a real and substantial question to be considered in relation to the accused’s fitness to be tried, and reference was made to R v Presser at 46, Kesavarajah v The Queen at 245 and Eastman v The Queen [2000] HCA 29, 74 ALJR 915, at paras [28], [66], [319]. However, those cases related to the procedure under the relevant Victorian and Australian Capital Territory legislation respectively, both of which were in significantly different terms to s10.
29. Counsel for the Crown expressed concern that there was a need for a further threshold test in addition to the raised in good faith test provided by subs (2), because the question could be raised in good faith but inappropriately, for example by an over anxious party. Not only do I consider such an occurrence most unlikely but, whatever the position may be at common law and in other states, s10 admits of no other threshold test.”
The exception provided by s10(2) recognises that an inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed (and is provided, by s10(2)) for the trial Judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the Court that the question has not been raised in good faith (s10(2)). It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process (cf Dunford J R v Zhang (supra) para 29). Conversely, where there is a real and substantial question, good faith will be presumed.
Section 10, therefore, suggests a sequence of questions. Usually, an accused person will be represented (s12(1)). Where an accused’s representative raises a question concerning the unfitness of the accused, the trial Judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner there is, prima facie, an obligation upon the trial Judge to halt the trial, and to conduct an inquiry before a separate jury. If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial Judge to seek an elaboration upon the matters giving rise to the concern (cf Ngatayi v The Queen (supra) at 8). Where that elaboration demonstrates a real and substantial question, good faith will be presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the Court may impute an absence of good faith, and decline to conduct an inquiry (s10(2)).
The Trial Judge’s Reasons
When the issue of Mr Tier’s unfitness was first raised (12 August 1999), his Honour identified a threshold issue. He said this: (p18)
“I have said that the question before the Court today is really a threshold question and the fate of the application stands or falls on that threshold question. It is worth repeating that the Court, in imperative terms, is enjoined that it must not conduct an inquiry into the question of a person’s fitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.”
Referring to Lord Denning in Central Estates (Belgravia) Ltd v Woolgar (1971) 3 All E R 647, his Honour took the expression “good faith” in s10(2) of the Act to mean “honestly and with no ulterior motive” (p 19). His Honour also referred to the Second Reading Speech of the Minister, given on 22 November 1983, in respect of s428F(2) of the Crimes Act, 1900, which was the previous section, in similar terms (although using the words “bona fide” rather than “good faith”). The Minister said this:
“This will prevent any accused from delaying his trial by repeatedly making a false claim that he is not fit to be tried.”
His Honour then said this: (p19)
“I am firm in my conclusion that the precondition to the Court exercising its jurisdiction under the Mental Health (Criminal Procedure) Act 1990 has not been satisfied. I am not prepared to come to a conclusion on the balance of probabilities that the question of his fitness to be tried has been raised in good faith. It may be that Mr Tier is unfit to be tried. I say that would have to be a possibility. It is only a possibility. It is to my mind far from a probability. Other matters to my mind, which I do not see it necessary to record or express, are more probable than that Mr Tier is presently unfit to be tried.
In those circumstances I refuse the application …”

The appellant complains that reasons ought to have been provided for the conclusion that the question had not been raised in good faith. The complaint is justified (Jordan CJ in Carlson v The King (1947) 64 WN(NSW) 65 at 66; McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 279; R v Maxwell (CCA, unreported, 23 December 1998) at 46). The parties were entitled to know the basis upon which his Honour viewed the application as not being made in good faith.
The Crown, in its submissions, endeavoured to identify reasons based upon the history of the trial. It is not obvious, however, which aspects of that history his Honour had in mind.
It will be remembered that Mr Tier was brought from the Royal Prince Alfred Hospital to Court under bench warrant (and thereafter held in custody, bail refused). The issue of his unfitness was reagitated approximately one week later, on 20 August 1999. His Honour again refused to hold a fitness hearing. He did so upon the same basis, namely a failure to satisfy the Court that the issue of unfitness had been raised in good faith (s10(2) of the Act).
The issue was approached by his Honour as a contest between two parties, the Crown, and Mr Tier. His Honour’s judgment speaks in terms of “the case” advanced by the accused (p4). His Honour said this: (p7)
“The test applied when the Court determined the first application on 12 August was on the balance of probabilities. Support for this being the appropriate test comes not only from s6 but also from s142 of the Evidence Act 1995 which provides that, except as otherwise provided, in any proceeding the Court is to find that the facts necessary for deciding … any other question arising under this Act (has) been proved if it is satisfied that (it) has been proved on the balance of probabilities.”
His Honour ultimately made the following determination: (p8)
“In my opinion the appropriate test is on the balance of probabilities. My conclusion on this application is the same as it was in relation to the first application. As announced, the evidence does not satisfy me on the balance of probabilities that the threshold test has been met.”
The findings made by his Honour in respect of the second application were in these terms: (p9)
“In the context of considering what is said in these works as to what the expressions ‘bona fide’ and ‘good faith’ mean, I pose the question thus: does the Court consider that the raising of Mr Tier’s alleged incapacity because he suffers from major depression a matter which has the quality of being raised with sincerity and genuineness? If that is the appropriate way to state the question I say that the answer of the Court is no, it does not.”
His Honour added: (p10)
“I ask myself: is the raising of the question of whether Mr Tier is unfit something that the Court is satisfied is not faked, nor feigned, nor pretended, nor simulated, nor specious, nor spurious or disingenuous? To answer such formulations it is necessary to have resort to double negation in order to express the state of my mind which is that I am not prepared to hold that the raising of the question is not faked, feigned, pretended, simulated, specious, spurious or disingenuous.”
Conclusion
I believe that the approach of the trial Judge manifested error.
First, it was important that his Honour maintain the distinction between his role, and that of the jury. He appears, with respect, not to have done so. Although his Honour saw himself as addressing the issue of good faith raised by s10(2) of the Act, his investigation and determination went beyond anything required by that subsection. In his first judgment explicitly, and his second judgement implicitly, he addressed the question whether Mr Tier was, as a matter of probability, unfit to be tried. He found that he was not. That, however, was a question for the jury. His Honour recognised the possibility that Mr Tier may be unfit. That should have been enough to persuade him that the question had been raised, that it was a real and substantial question, and that good faith may be presumed. The exception in s10(2) had no application.
Secondly, his Honour had before him a substantial body of evidence that Mr Tier was, or may be, unfit to be tried. Three doctors had expressed that view. Dr Simpson, in charge of Mr Tier’s treatment at the Royal Prince Alfred Hospital, Associate Professor Buhrich, the head of the psychiatric unit at that hospital, and Dr Jurek, Mr Tier’s treating psychiatrist, had each diagnosed major depression. Each said that Mr Tier was unfit adequately to defend himself by reason of that condition. Ms Spooner, Mr Tier’s solicitor, provided her perspective, which suggested that Mr Tier was unfit, as did Mr Rasmussen, Mr Tier’s counsel. It is plain, upon the basis of this material, that there was a real and substantial question to be tried. In the circumstances, I do not believe it was open to his Honour to impute an absence of good faith under s10(2).
Finally, the issue of unfitness was approached by his Honour as a contest between parties. That, I believe, was inappropriate. In determining the issues under ss10(1) and 10(2), it was inappropriate to regard Mr Tier as making a “case” (cf s12(2)). The issues were not to be determined on the balance of probabilities. That standard would ultimately be applied by the jury when determining the issue of unfitness (s6), once an inquiry was undertaken. Section 142 of the Evidence Act (as the Crown acknowledged), had no application.
As mentioned, an error as to the accused’s unfitness is fundamental. There is no question of the application of the proviso (Kesavarajah v The Queen (supra) at 248).
It is for these reasons that I joined in the orders of the Court made on 8 February 2001, namely:
1.            The appeal should be allowed.
2.            The conviction of Mr Tier should be quashed.
3.            There should be a new trial.
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LAST UPDATED: 29/03/2001