R v Tier

Case [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

  1. 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.

  2. 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”.

  3. 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…

Continue reading R v Tier

Sign in free to access the full text

Details
AGLC
R v Tier [2001] NSWCCA 53
Case
[2001] NSWCCA 53
Decision Date

CaseChat Overview and Summary

The case of R v Tier involves the appellant, Mr Tier, who was convicted of a criminal offence and the respondent, the Crown. The matter before the court was whether the trial judge erred in his determination that Mr Tier was fit to stand trial despite concerns about his mental health. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge correctly assessed the question of Mr Tier's fitness to stand trial in accordance with the relevant statutory provisions. Specifically, the court had to determine whether the trial judge erred in his approach to the question of good faith as outlined in section 10(2) of the relevant Act, and whether he correctly assessed the evidence regarding Mr Tier's fitness.

The court found that the trial judge had made several errors in his assessment of Mr Tier's fitness to stand trial. The court held that the trial judge should have maintained a clear distinction between his role and that of the jury, and should not have assessed the probability of Mr Tier's unfitness, as this was a matter for the jury to decide. The court also held that the trial judge should not have imputed a lack of good faith in raising the question of Mr Tier's unfitness, as there was a substantial body of evidence suggesting that Mr Tier may have been unfit to stand trial. Finally, the court held that the trial judge's approach to the issue of unfitness was inappropriate, as it was not a contest between parties but rather a question to be determined by the jury on the balance of probabilities.

The court allowed the appeal and quashed Mr Tier's conviction, ordering a new trial. The court held that the trial judge's errors were fundamental and could not be remedied by a mere reconsideration of the evidence. The court also held that the error in assessing Mr Tier's fitness to stand trial was not subject to the proviso, as it was a question of law rather than fact. The orders of the court included allowing the appeal, quashing the conviction, and ordering a new trial for Mr Tier.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GROVE J
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.**********

Ratio Decidendi

Legal Principle Established

Established by: GROVE J

Full text does not contain this section.