Regina (C'Wealth) v Baladjam [No 13]

[2008] NSWSC 1437

Reported Decision: 77 NSWLR 630

New South Wales

Supreme Court

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 13] [2008] NSWSC 1437
HEARING DATE(S):	22/04/08
JUDGMENT DATE :	1 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	I order that the fitness hearing may proceed before a Judge without Jury.
CATCHWORDS:	CRIMINAL LAW - Mental Health - Criminal Procedure (Amendment Act) 2005 - Unfitness to be tried by a Judge alone - Constitutional Law - s 11(1) of the Mental Health (Criminal Procedure) Amendment Act 2005 does not offend the mandatory direction in s 80 of the Constitution - Fitness issue not an essential feature of trial by jury
LEGISLATION CITED:	ACT Crimes Act Commonwealth Criminal Code Act Criminal Appeal Act 1907 (UK) Criminal Procedure Act 1986 Judiciary Act 1903 Mental Health (Criminal Procedure) Act 1990 Mental Health (Criminal Procedure) Amendment Act 2005 NSW Mental Health (Criminal Procedure) legislation
CASES CITED:	Ahern v The Queen (1988) 165 CLR 87 at 94-95 Brownlee v The Queen [2001] 207 CLR 278 at 298 Cheatle v R (1993) 177 CLR 541 Eastman v The Queen 203 CLR 1 at 13 Eastman v Director of Public Prosecutions [2003] 214 CLR 318 Ex Parte LaFlore 445 SO 2d 932 (Ala) (1983) Kesavarajah v The Queen (1994) 171 CLR 230 at 243) Ng v The Queen [2003] 217 CLR 521 at 526 per Callinan J Presser v R (1985) VR 45 per Smith J at 483 Thompson v R (1989) 169 CLR 1 United States v Curtis (1826) 4 Mason 232; 25 F Cas 726 R v Bourne 36 CRAPPR 125 R v Bradley (No 1) (1986) 40 NTR per Asche J at 7-8 R v Cheung [2001] 209 CLR 1 at 24 R v JS [2007] NSWCCA 272 per Spigelman CJ at 288 R v Kim (1993) 65 A Crim R 278 and 283-284 per Zeeman J R V Mailes [2001] 53 NSWLR 251 per Wood CJ at CL R v Pritchard (1836) 7 C & P 303 at 304 (173 ER at 135) R v Ronen [2004] NSWCCA 176
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 13] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	Ms W. Abraham QC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown M G Sexton SC; I Mescher - (By Leave Intervening on behalf of NSW Attorney General) M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic Ms S Pritchard; Ms S Callan - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	Commonwealth DPP NSW State Crown Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: THURSDAY 1 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 13]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Constitutional issue - whether section 80 of the Commonwealth Constitution requires the question of Khaled Sharrouf's fitness to be tried to be determined by a Judge and jury

1 HIS HONOUR: Khaled Sharrouf, ("the accused"), has been charged, along with eight other men, with an offence of conspiring to do acts in preparation for a terrorist acts or act. The charge arises from ss 11.5 and 101.6 of the Commonwealth Criminal Code Act. Plainly enough, the charge is a serious one, carrying, as it does, a maximum penalty of life imprisonment.

2 The accused was arrested and charged on 8 November 2005. He has been in custody since that time. After a lengthy hearing, he, together with the others, was committed for trial on 30 April 2007.

3 An indictment was presented against the accused in the Supreme Court in relation to the subject charge on 31 May 2007. He was, as a consequence, arraigned on that day and pleaded not guilty to the charge.

4 The trial of all nine men was set down for hearing on 25 February 2008. The pre-trial aspects of the trial have been continually in progress since that time. At this stage, it is uncertain precisely when a jury will be empanelled. It is unlikely that a jury will be required for some months.

5 On 7 March 2008 I gave a decision in relation to a preliminary issue, which had arisen in relation to the trial of the accused. The preliminary decision related to the proper construction of the transitional provisions of the Mental Health (Criminal Procedure) Amendment Act 2005.

6 The circumstances giving rise to the preliminary issue were these: a motion on behalf of the accused was filed and notified to the Court in November 2007. This motion raised for the first time the question of the accused's fitness to plead and to be tried (there is no need for the purposes of this decision to make any distinction between these two aspects. I will, for the purposes of this decision, simply refer to it as "the fitness issue").

7 Once the fitness issue had been raised, it became necessary to determine the procedure to be involved in a hearing to resolve the issue. At that time, both the Crown and the legal representatives for the accused were in agreement about two matters. First, it was agreed that the appropriate procedure fell to be determined by the provisions of the New South Wales Mental Health (Criminal Procedure) legislation.

8 In relation to that first matter of agreement, however, a serious contention arose. This was because of the provisions of the Mental Health (Criminal Procedure) Amendment Act 2005. Prior to 1 January 2006 (when that amendment came into force) the New South Wales legislation required that a fitness hearing proceed before a Judge and jury, unless the accused were to make an election to have the issue determined by a Judge alone.

9 The new legislation altered this situation. It inserted into the legislation, by virtue of schedule 1(4), a new section 11(1). This was in the following terms:

“11(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone."

10 The matter of contention, which arose in early March 2008, was whether the fitness hearing in the present matter should proceed before a Judge and jury, or before a Judge alone. The dispute between the parties on this preliminary issue concerned the proper construction of the transitional provisions relating to the new amendment.

11 On 7 March 2008 I determined that the new s 11 of the Mental Health (Criminal Procedure) Act 1990 should apply to the question of the accused's unfitness to be tried. This conclusion meant that the question of fitness was to be determined by Judge alone. I directed that the fitness hearing proceed before me on Tuesday, 25 March 2008. The parties had indicated that they would be in a position to proceed with the tender of psychiatric evidence, and other material, on that day.

12 The second matter, which had been agreed between the parties in relation to the fitness issue, was that no constitutional issue was said to arise. For that reason, it was not necessary for me to turn my attention to any issue of constitutional law. The agreement between the parties obviated the necessity to consider such an issue.

13 Regrettably, the fitness hearing did not proceed on 25 March 2008. I say "regrettably" because the time which had been set aside to deal with Mr Sharrouf's situation as a matter of urgency was, in a sense, wasted and unable to be filled with other pre-trial work. This also had an adverse consequence for the timing of the hearing of pre-trial applications related to the other accused men.

14 The reason why the fitness hearing did not proceed was that counsel indicated to me they now had instructions to raise a constitutional issue concerning the validity of s 11 of the Mental Health (Criminal Procedure) Act 1990. In the ultimate, it was to be argued that the mandatory direction in s 80 of the Constitution required that: in order for the trial to continue, the issue of fitness should be put before a jury, specially empanelled, to decide the issue.

A preliminary observation

15 Before coming to state the competing positions argued by the parties, I should make some brief preliminary observations about the situation, which developed in connection with the fitness issue.

16 On 27 March 2008, notices were given by the accused pursuant to s 78B of the Judiciary Act 1903 raising the constitutional issue for determination. Plainly enough, this had the practical effect of postponing for a considerable time the resolution of the issue of the accused's fitness.

17 As a matter of propriety, I had indicated that the fitness issue could not proceed in any form until the constitutional issue has been determined. This plainly has had a number of adverse consequences for the accused himself. First, it is uncertain when the fitness issue will be determined. Secondly, he has been in custody since November 2005. Thirdly, while I do not know at this stage anything of the detail relating to the onset of his psychiatric illness, I have been told, in an informal manner, that the psychiatrists for the Crown and the accused are in complete agreement that he is unfit to be tried at the present time.

18 Obviously enough the constitutional point that has been taken is an important one and it must be determined. One wonders, however, whether the taking of this point has truly been in the interests of the accused. Prima facie, the anticipated agreement between the experts as to his present mental condition is itself enough perhaps to warrant a separate trial order being made at this stage and a postponement of the question of the issue as to whether he should face trial for a substantial period.

19 In that context, there is also the question as to whether he is receiving appropriate medical treatment in his present custodial situation. The resolution of this question may also involve giving consideration to his future custodial situation and to his future need for psychiatric and medical treatment.

20 The final preliminary matter I raise is simply to ponder where the instructions have come from to pursue this constitutional point. I take it that the accused himself is not in a fit condition to make such decisions. I can only assume that a decision has been made on his behalf by others. All these matters, as I say, lead me to wonder whether the introduction of this fine legal point is truly in the interests of the accused. That said, I can do no more than return to the issues which it is necessary to decide.

21 The constitutional point having been taken, it is necessary to decide the matter. Whether the determination of the fitness issue is to be made by Judge and jury, or by Judge alone, it is imperative that the accused face a fitness hearing without any further delay. For that reason, I have attempted to provide a decision as a matter of comparative urgency.

The point at issue - does section 11 infringe the constitutional guarantee of trial by jury contained in s 80 of the Constitution?

22 Section 80 of the Constitution provides:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

23 Although Mr Brewer and Mr Pickin of counsel appear for the accused in the trial, the constitutional argument on his behalf has been presented by Ms Sarah Pritchard and Ms Callan of counsel. Mr Bellew SC appeared on the constitutional argument in the interests of the Crown. The Solicitor-General, Mr Michael Sexton SC, appeared with Mr Mescher, intervening on behalf of the Attorney General of New South Wales.

24 Ms Pritchard acknowledged at the outset that the issue, which had arisen, was a novel one, and one, which had not been the subject of any authority. Ms Pritchard contended that the issue of fitness to plead was an essential feature of trial by jury with all that was connoted by that phrase in constitutional law and in the common law of England; that the common law had long recognised the determination by the jury as to the accused's fitness as a fundamental step in the trial process. Accordingly, s 11 of the Mental Health (Criminal Procedure) Act 1990, as amended, was incompatible with and offended the mandatory direction contained in s 80 of the Constitution.

25 The first limb of counsel's argument placed particular reliance on observations of the High Court in Cheatle v R (1993) 177 CLR 541. The first passage on which counsel relied is in the judgment of Gaudron, Gummow and Hayne JJ at 549.

“By the time of federation, the common law institution of trial by jury had been adopted in all the Australian colonies as the method of trial of serious criminal offences. The reference to 'trial by jury' in section 80 was to that common law institution. As Griffith CJ commented in R v Snow (1915) 20 CLR 315 at 323, section 80's requirement that the trial on indictment of any offence against any law of the Commonwealth shall be by jury represents a 'fundamental law of the Commonwealth' which 'ought prima facie be construed as an adoption of the institution of "trial by jury" with all that was connoted by that phrase in constitutional law and in the common law of England'."
Earlier, in Huddart Parker & Co Pty Limited v Moorehead (1909) 8 CLR 330 at 375, another of the original members of the Court, O'Connor J had sought to identify "the essential features" of the institution of trial by jury adopted by s 80:
It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process."

26 At 557 Gaudron, Gummow and Hayne JJ said:

“As has been seen it was recognised in this Court from an early stage that section 80's mandatory direction that 'a trial on indictment of any offence against any law of the Commonwealth shall be by jury' should be construed as prima facie encompassing 'the essential feature' of 'the institution of trial by jury with all that was connoted by that phrase in constitutional law and in the common law of England."

27 Counsel argued that the Court in Cheatle had reiterated the view of Griffith CJ in Snow that s 80 is "a fundamental law" that guarantees a trial by jury in the common law sense. Secondly, the Court had introduced a distinction between the “essential” and the “inessential” features of a trial by jury, with section 80 constitutionally entrenching the former from legislative impairment.

28 Ms Pritchard pointed to a passage in R v JS (2007) NSWCCA 272, where Spigelman CJ at 288 had recently described Cheatle as "the origin of contemporary jurisprudence on the interpretation of s 80 of the Constitution".

29 Ms Pritchard made brief reference to cases subsequent to Cheatle in which the constitutional ambit of s 80 had been examined. These included Brownlee v The Queen (2001) 207 CLR 278 where, at 298, Gaudron, Gummow and Hayne JJ had referred to the distinction between the essential and the inessential that had been drawn by Cheatle into the constitutional doctrine respecting s 80 of the constitution. In particular, Ms Pritchard, anticipating no doubt the arguments to be advanced by the Crown and the Attorney General, submitted that the distinction between essential and inessential, taken up in Brownlee and later cases, was not relevant to the present issue where trial by jury had been removed altogether from the context of a fitness hearing.

30 The major part of Ms Pritchard's submissions contained a thorough and carefully assembled analysis of the historical situation of "fitness to plead" at common law. This analysis involved compiling a selection of statements from decided cases, learned commentaries and, indeed, modern publications.

31 There is no need for me to refer to this analysis in detail. This is because there is no real dispute between the parties that Ms Pritchard is correct in the aspect of her submissions that suggests that, under the common law of England, the question of fitness was always one for a specially empanelled jury to determine.

32 It will be sufficient if I make brief reference to this analysis by mentioning first a passage from Sir Matthew Hale, The History of the Pleas of the Crown (1736). This passage was referred to by Gleeson CJ in Eastman v The Queen 203 CLR 1 at 13. The reference in Hale’s History was to the case of a man who had committed a capital offence but later, before arraignment, "become absolutely mad". In such a case, the learned author said that the man should be remitted to prison "until that incapacity be removed". The reason is "because he cannot advisedly plead to the indictment".

33 In R v Pritchard (1836) 7 C & P 303 at 304 (173 ER at 135), Alderson B instructed the jury that the question was "whether the prisoner has sufficient understanding to comprehend the nature of this trial so as to make a proper defence to the charge".

34 A thorough description of the development of the common law notion of fitness to plead is to be found in Australian authority. In particular see R v Mailes (2001) 53 NSWLR 251 per Wood CJ at CL; and in R v Bradley (No 1) (1986) 40 NTR per Asche J at 7-8. The content of the issues to be determined during a fitness hearing are to be found, in more recent authority, in Presser v R [1958] VR 45 per Smith J at 483 and in Mailes.

35 For the practice in England see the 1826 edition of Blackstone's "Commentaries on the Laws of England", edited by Chitty, "especially volume 4, chapter 25 at 325" and Stephen's "A History of the Criminal Law of England" (1883) at 298.

36 Finally, in relation to this historical analysis, it is sufficient to note as Ms Pritchard points out in submissions, that various statutes in the United Kingdom and Australia have, from time to time, directed that the issue of fitness to plead be determined by a jury especially empanelled for that purpose, although in more recent times legislative changes in the Northern Territory and New South Wales have allocated the determination of the fitness issue to Judge alone. It seems clear that historically fitness to plead and to be tried has been a question for Judge and jury (Kesavarajah v The Queen (1994) 171 CLR 230 at 243), although the trend appears to be changing in modern times.

37 Finally, Ms Pritchard placed reliance upon a decision of the Alabama Supreme Court in Ex Parte LaFlore 445 SO 2d 932 (Ala) (1983). In that case the Alabama Supreme Court, in examining its own State Constitution, held that the common law had recognised the right to trial by jury to determine a person's sanity at the time of trial. The Court held:

“Thus both by the common law in Blackstone's time and through the later Act of Parliament, the question of whether an accused was competent to stand trial was for the jury. This right is preserved to the citizens of Alabama by section 11 of the Constitution of 1901."

38 Drawing together these various strands of argument, Ms Pritchard submitted that, when the Constitution was adopted in this country, an essential feature of a trial by jury was the determination by the jury of the accused's fitness to plead. Counsel submitted that the common law had long recognised determination by the jury of the accused's fitness as a fundamental step in the trial process. Accordingly, Ms Pritchard submitted that the mandatory direction in section 80 required that the issue of fitness be put before a jury, specially empanelled, to decide the issue. The requirement of a trial by Judge alone of the issue in s 11 contravened the constitutional guarantee.

39 Mr Sexton SC, on behalf of the Attorney General, argued, first, that s 11(1) of the State law concerns only the question of a person's unfitness to be tried for an offence and does not concern the determination of a person's guilt or innocence in respect of the offences with which he or she has been charged. Secondly, the Solicitor-General argued that the fitness issue is not "the trial on indictment" of any offence against any law of the Commonwealth, with the consequence that section 80 does not require the fitness issue to be determined by a jury.

40 In relation to this second point, the Solicitor-General submitted that, so long as the ultimate judgment of guilt or innocence in any case where there has been a trial on indictment is the product of the verdict of a jury, it cannot be said that s 80 has not been observed (R v Kim (1993) 65 A Crim R 278 and 283-284 per Zeeman J; R v JS supra at 86-92 per Spigelman CJ and at 167 per Mason P).

41 Further, senior counsel argued that the "trial", in the context of section 80, is the substantive determination of the guilt or innocence of the accused resulting in that conviction or acquittal - the trying of the cause: United States v Curtis (1826) 4 Mason 232; 25 F Cas 726.

42 In further support of his argument, Mr Sexton referred to various aspects of pre-trial procedure, or post conviction procedures, which are generally not to be determined by a jury, even though, loosely speaking, they might be thought to be part of the trial process.

43 In relation to the fitness issue, special reliance was placed on the remarks of Gaudron and Hayne JJ in Eastman v The Queen at pages 21 to 23; and 98 respectively.

44 Overall, the Solicitor-General accepted that historically fitness issues were determined by juries as at federation. He accepted also that such hearings arose either before or during trial without distinction, but argued that, although arising as a matter of necessity throughout the trial process, such issues were not, in essence, part of a trial on indictment. Consequently, it was submitted that s 80 placed no bar on the relevant provisions of the Judiciary Act picking up the subject State law and making it applicable to a Commonwealth prosecution in New South Wales.

45 Mr Bellew SC adopted and reinforced the submissions which had been made by the Solicitor-General. Senior counsel for the Crown accepted the historical position as advanced by Ms Pritchard but argued that this fact, namely that historically the issue of fitness had been determined by a jury, did not of itself lead to the conclusion that this was a constitutional requirement under s 80. There was a commonality of reliance as between the Crown and the Attorney General on the authorities that were said to be relevant to this question.

46 Essentially, Mr Bellew SC argued that the question as to whether the issue of fitness should be regarded as an essential feature of the process of trial by jury involved an examination and appreciation of the objectives of the process itself. Approaching the matter in that way, it was argued that s 11 gives rise to no impairment of the trial process and that, irrespective of the historical situation, the determination of fitness should not be regarded as an essential role or feature of that process. The primary function of a jury is thus the determination of guilt or innocence of the accused. A determination of fitness does not fall within the jury's constitutionally mandated function (Brownlee at 288 (21) per Gleeson CJ and McHugh J; 298 (54) and 302 (65) per Gaudron, Gummow and Hayne JJ).

47 The Crown argued that the fundamental focus of the process of trial by jury is the need to maintain the obligation of the prosecution to prove its case to the satisfaction of the jury beyond reasonable doubt by way of a procedure that is random, independent and properly representative (Brownlee at 288 (21) and 289 (22) per Gleeson CJ and McHugh J).

48 The Crown also made reference to a statement in R v Cheung (2001) 209 CLR 1 at 24 where, in the judgment of Gleeson CJ, Gummow and Hayne JJ, it was said:

“When an accused person is tried upon an indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment and by the plea."

49 By way of contrast the Crown argued that the fitness issue is not one defined by the terms of the indictment, nor is it capable of being defined by the terms of the plea. Moreover, categorising the determination of the fitness issue as a non-essential role or feature of the process by trial by jury produces, in fact, no impairment of the process at all. It has no bearing upon the primary function of the jury, nor any wider bearing on the process as a whole. If found to be unfit, the accused does not face a trial at all (Eastman v R supra per Hayne J at (98). The issue of unfitness falls outside the adversarial process of a criminal trial (R v Mailes per Spigelman CJ at 256 (14)).

50 Ms Pritchard made a number of submissions in reply and I shall mention those that require assessment in resolving the issues between the parties.

Resolution of the issues

51 The starting point is an acknowledgment that, under the common law of England and federation, the fitness issue was one for a specially empanelled jury to determine. That is commonly accepted by all parties to the present argument. The more difficult question is the one posed by the accused's arguments: Is the fitness issue an essential feature of the institution of trial by jury in the sense that that phrase is used by the High Court in Cheatle?

52 In the written submissions Ms Pritchard argued that the question must be answered in the affirmative. In substance, counsel brought to bear upon the historical analysis as to the common law situation of the fitness issue the legal analysis proffered by the High Court in Cheatle.

53 There are, I think, a number of “problems” that emerge, in the present matter, from the statement of the question in the manner suggested by Ms Pritchard.

54 First, there is an element of circularity of reasoning involved in the propositions underlying the question posed by Ms Pritchard on her client's behalf. I do not say that the reasoning is itself circular but rather it leads to a circularity of approach that does not illuminate the answer to the question posed.

55 Let me examine the propositions in the following way:

56 The first proposition is this: The institution of trial by jury is one, which recognises, as a particular function of trial by jury, the determination of the fitness issue. This is another way of saying that trial by jury has a function of dealing with fitness issues.

57 The first proposition is then examined by reference to historical considerations and the position of the common law as at federation. It is then found, as a second proposition that, historically, fitness issues were determined by a jury when such issues arose at the commencement of or during a criminal trial. (It appears to be accepted that the jury empanelled to deal with the fitness issue was a jury empanelled ex officio for the specific purpose.)

58 From these two basic propositions it is then argued that, since juries historically were empanelled to deal with the fitness issue, determination by a jury of that issue is a Cheatle type essential feature of trial by jury generally. This is the conclusion said to be mandated by acceptance of the two basic propositions.

59 The ultimate conclusion in the argument is that, accordingly, that essential feature cannot be modified or impaired because it will infringe the constitutional guarantee of s 80.

60 It will be seen that this process of reasoning, although not precisely circular in itself, is only persuasive by dint of its appeal to a circularity of reasoning. The first proposition carries within it the implicit conclusion said to be demonstrated by the argument. The second proposition carries with it the unproved assumption that historical presence equates to the feature of “essentiality” stated in the conclusion.

61 The second problem, which emerges, is, in my opinion, of a more serious kind. Cheatle establishes that the requirement in section 80 of a "trial by jury" is referable to the essential features of that institution (as understood at common law at the time of federation), those features being ones which have a constitutionally entrenched status (see Ng v The Queen (2003) 217 CLR 521 at 526 per Callinan J).

62 It was for this reason that, in Cheatle, unanimity in verdict was found to possess the status of essentiality. On the other hand, statutory provisions discussed in later cases, such as diminution of jury numbers below twelve; provisions enabling separation at the time of jury deliberation; and provisions allowing for reserve jurors were not regarded as essential features in the constitutional sense (Brownlee v The Queen; Ng v The Queen; see also R v Ronen [2004] NSWCCA 176 (legislation suppressing the identity of jurors from scrutiny).

63 In all of the cases where "non-essentiality" has been found, provisions of those kinds did not exist in pre-federation legislation or criminal practice. On the other hand, features of a jury trial that did exist at federation have been remarked upon as “non-essential” (e.g. gender and property qualifications).

64 Ms Pritchard's argument is that because juries, at the relevant time, determined the fitness issue when it arose in a criminal trial, this feature must therefore be an essential feature of the institution of trial by jury at federation and now. The second problem in counsel’s formulation I have sought to identify is that the Cheatle analysis where it has been employed, has occurred in relation to a trial, which is undoubtedly a trial on indictment, and undoubtedly where a jury trial of some kind has taken place. True it is that, in cases of that nature, the jury task, its function or some aspect of its constitution or behaviour will have been modified or altered in some way, but nevertheless, a jury trial has been held.

65 By way of contrast, in the present matter there are two obvious points of distinction. First, there is a real issue as to whether the fitness question is itself a trial on indictment or, alternatively, whether it is a part of a trial on indictment. In Cheatle, Mr and Mrs Cheatle were charged with a conspiracy to defraud the Commonwealth. There was no doubt that was a trial on indictment of an offence against a law of the Commonwealth. In Brownlee, the accused was charged with conspiracy to defraud the Commonwealth and was tried on indictment in the District Court of New South Wales. Once again, the trial was plainly a trial on indictment that corresponded in all respects with the statutory description in s 80 of the Constitution.

66 That was the situation also in R v JS and R v Kim, although each of those cases involved a different aspect of s 80, namely, the problem that arises when an appeal against acquittal is conferred in favour of the prosecution.

67 R v Ronen was another case involving, plainly, a trial on indictment, namely, a charge of conspiracy to defraud the Commonwealth of income tax. There are other examples in the decided cases as well.

68 The second point of distinction takes Ms Pritchard's analysis even further from demonstrating the appropriateness, in the present matter, of stating the ultimate question in the terms of the question posed in Cheatle. Here, we are not concerned to analyse a modification by legislation of some aspect of the jury task, process, constitution or function. Here, we are not concerned to examine whether that modification or alteration removes an essential, i.e., a constitutionally entrenched feature of trial by jury. Section 11 of the New South Wales Mental Health (Criminal Procedure) Act eliminates the jury's role altogether.

69 The third problem with Ms Pritchard's approach is that the use of the term "essential" is apt to mislead and confuse. This is so for the same reason, which underlies the analysis identified in describing the first problem. Simply because juries historically dealt with issues of fitness, prior to and at the time of federation, does not mean that the conferral of power to decide such an issue on a judge alone is the elimination of an essential feature in the constitutional sense. Indeed, it is difficult to understand why such a feature should be regarded as essential, if nothing more is shown than that it was the customary or usual practice at a particular time in history.

70 These three problems lead me to the conclusion that the present issue can best be solved by posing the question in a manner differently from that posed in the written and oral submissions of counsel for the accused. The proper issue here, in my opinion, is whether the fitness issue itself is a trial on indictment or, in a relevant sense, a part of a trial on indictment. If it is, then the resolution of that issue is for determination by a jury in the present matter. If it is not, the determination may be made by a judge, as s 11 requires.

71 The resolution of the question I have posed will depend upon an analysis of the nature of the fitness issue or, more precisely, the significance of the process of the hearing of a fitness issue. It will also require an analysis, in a relevant way, of the expression in s 80 - "the trial on indictment of any offence against any law of the Commonwealth". There is, of course, an area of overlap in these considerations. When that analysis is carried out, I think that it is clearly demonstrated that the fitness issue is not a trial on indictment, or part of the trial on indictment for an offence. I accept that, plainly enough, the fitness will arise either before or during the trial. Equally plainly, necessity and convenience will require that it be dealt with whenever it arises, that is, either before or during the trial. That situation however, does not, as I shall explain, make it a trial on indictment, or part of a trial on indictment for an offence.

Fitness to plead – its significance in a trial

72 I shall first examine the significance of the question of a person's fitness to plead, that is the significance of the fitness issue. This was examined with some care by both Gaudron J and Hayne J in Eastman v The Queen. At paras 62 to 64 Gaudron J addressed the significance of the fitness issue. Her Honour said:

“The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. Certainly, that is the position where the issue of fitness to plead is raised before or during a trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires 'no proper trial has taken place (and the) trial is a nullity' (R v Begum (1995) 93 Cr App R 96 at 100). To put the matter another way, there is a fundamental failure in the trial process.”

73 At paragraph 64 her Honour said:

“Traditionally, an accused person has not been put on trial unless fit to plead because of 'the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing.' (Proceedings in the case of John Frith for High Treason (1790) 22 Howell's State Trials 307 at 318.) That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead."

74 (I interpolate that in his decision in Eastman v The Queen, Gummow J noted, at para 172, that the reference by Lord Kenyon LCJ in Frith to "the humanity of the law of England" in not requiring the accused to make his or her defence when unfit to plead had "a certain edge". Gummow J noted that the common law developed at the time when there was no appellate structure in the criminal jurisdiction such as that later to be established by the Criminal Appeal Act 1907 (UK), and when conviction for felony attracted the death penalty; and at a time when the accused had restricted rights of legal representation.)

75 Hayne J, in Eastman also examined the significance of the fitness issue when it arose in a criminal trial. At para 293, Hayne J said:

“A criminal trial is an accusatorial and adversarial process. It 'is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence' ( Ratten v The Queen (1974) 131 CLR 510 at 517). As Barwick CJ said:
“It is a trial, not an inquisition: A trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in-chief or in cross-examination shall be asked; always of course, subject to the rules of evidence, fairness and admissibility. The Judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the Judge's directions, the jury is to decide whether the accused is guilty or not. Consequently, if the proceedings are not blemished by error on the part of the Judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial.”
Ordinarily, then, it will be for the prosecution to prove its case and for the accused to choose the ground or grounds upon which to meet the accusation.
But the unstated premise from which these descriptions of the criminal trial process proceed is that the accused is fit to plead and fit to stand trial. There can be no trial at all unless the accused is fit both to plead and stand trial. Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial Judge to consider regardless of whether the prosecution or the accused raise it. In that respect it is a question which falls outside the adversarial system. Indeed, it must fall outside the adversarial system because the very question for consideration is whether there is a competent adversary."

76 Although Gaudron J and Hayne J were in dissent on the ultimate question decided in Eastman, these passages in their judgments are of considerable importance for the present issue. To my mind, they make it clear that the fitness issue, although it may occur during a trial, is not the trial itself or any part of that trial. Indeed, the significance of the fitness issue is that, once raised, there can be no trial or continuation of the trial until the issue has been determined. If the accused is found unfit, there will be no trial at all while ever that situation continues.

77 In R v Zhang NSWCCA 344 Dunford J (with whom Foster AJA and Greg James J agreed) said that, once an issue of unfitness arose during the course of a trial, the obligation of the Judge was to discharge the existing jury and conduct the inquiry required by s 10(1) of the Mental Health (Criminal Procedure) Act 1990. While it is true that his Honour made this remark against the background of the particular terms of the New South Wales legislation, it is clear that the common law required, for the reasons identified by Ms Pritchard in her written submissions, that a jury be empanelled ex-officio whenever a fitness issue arose.

78 The decision of Dunford J is not merely an illustration of compliance with a statute but an expression of the proper procedure that, generally speaking, is to be adopted, in any event, where a fitness issue arises after the empanelment of a jury. The trial jury must be discharged. Another jury must then be ordered (as the legislation in force at that time required) to deal with the fitness issue.

79 Under the present New South Wales legislative scheme, in a similar situation, the jury would be discharged and a fitness hearing conducted by the Judge. That would be the general consequence of a fitness issue having arisen, providing, of course, that it had arisen in good faith.

80 Ms Pritchard submitted that a mental health issue going to fitness of the accused can itself often be a matter of controversy. Counsel argued that the facts involved in the fitness issue may themselves have to be determined in an adversarial way. That may be so, but, nevertheless, the facts are part of an examination of an issue which itself falls outside the adversarial system represented by the indictment and plea taken at the trial. The issue, and any facts that may have to be determined in connection with it, are a complete barrier to the holding of any trial, or to the continuation of any trial where it is already underway.

81 In Eastman v The Director of Public Prosecutions (2003) 214 CLR 318, there is a valuable discussion by Heydon J on the significance of an accused's person's fitness to plead. At para 114 his Honour said:

“An essential function of the criminal trial is to minimise the risk that innocent persons will be convicted. It does this by ensuring that the prosecution case, taken as a whole, consists of potentially reliable evidence presented in an unprejudiced manner. The legal system is prepared to tolerate some lack of concordance between those who are convicted and those who are in truth guilty, in the sense that it is prepared to accept the practical possibility that some persons who are not innocent are convicted but it does not accept that any persons who are innocent should be convicted. Because it does not accept the latter outcome, it employs numerous means to prevent accused persons who are innocent from being convicted. Those means centre on the institutions and techniques used to ensure a fair trial - an independent judiciary and, where applicable, an independent jury; an ethical code binding the prosecution which is in part reflected in rules of law; the burden and standard of proof; the applicable rules of evidence; and the rule preventing an accused person from being tried unless that person is fit to plead. That last rule is among the key rules of criminal procedure which seek to ensure that a successful prosecution case rests on reliable evidence. If the accused is not fit to plead and stand trial, there can be no trial ." (underlining added).

82 At paras 115 to 118, Heydon J examined the way in which unfitness to plead might have a poisonous or infectious consequence for many of the aspects of the trial.

83 Ms Pritchard pointed out that, in this case, Heydon J was not considering the question from the perspective of section 80. That is true, as the second Eastman case was concerned with the construction of a section of the ACT Crimes Act which enabled a Judge of the Supreme Court of the territory to direct an inquiry when any doubt or question arose as to the guilt of a convicted person.

84 I do not think that this distinction, undoubtedly correctly made by counsel, robs the passage I have mentioned of its value for determining the nature and significance of the fitness issue when it arises in a criminal trial. Indeed, the passage makes it clear that there is a significant difference between the trial itself and the fitness issue. The latter is enshrined in the rule that prevents an accused person from being tried at all unless that person is fit to plead. It is, in truth, as Heydon J notes a "key rule of criminal procedure" designed to ensure that an improper conviction does not take place. It achieves this by ensuring that no trial is held at all if the accused is unfit to plead and stand trial.

85 As noted earlier, the observation that the fitness issue falls outside of the adversarial process of a criminal trial was endorsed by Spigelman CJ in R v Mailes at 256 (14).

Trial on indictment of an offence

86 This expression needs to be examined in a relevant way to understand whether the fitness issue falls within it, and, if so, in what manner. I say it needs to be examined "in a relevant way" because Ms Pritchard argued that the reference to trial "on indictment" simply distinguishes those criminal proceedings to which the constitutional guarantee applies from those which can be dealt with summarily without a jury. This is undoubtedly correct, if the sole focus be on the words "on indictment" (see the narrative of the history of s 80 described by Gleeson CJ, Gummow and Hayne JJ in Cheng v The Queen (2000) 203 CLR 248 at 53 to 54).

87 But the analysis required by the present examination is of the entire phrase appearing in s 80. This calls for a broader appreciation of the process occurring where a Federal offence is tried on indictment. The analysis is, in some respects, the mirror image of the analysis of the fitness issue already undertaken. Indeed, some of the authorities to which I have already made reference have undertaken and made, in essence, the necessary analysis. For example, as the Crown submitted, Brownlee reinforces that the primary function of a jury is the determination of guilt or innocence of the accused (per Gleeson CJ at 288 (21); per McHugh J at 298 (54)).

88 In the same way, this emerges as the primary process occurring when one makes an analysis of the phrase "a trial on indictment for an offence". Earlier in this decision (para 50) I set out a passage from the High Court's decision in Cheung v The Queen. This was the passage appearing in the joint judgment of Gleeson CJ, Gummow and Hayne JJ at 9 (4). That passage made it quite clear that the primary process occurring in a trial is a determination as to whether the accused is guilty or not guilty of the offence charged in the indictment.

89 The ambit of the process is, however, defined by the terms of the indictment and the terms of the plea. Once that is seen to be so, the fitness issue has no role to play in that process other than to act as a barrier to commencement or continuation of the trial process. The fitness issue has nothing to do with guilt or innocence. It has nothing to do, in a relevant sense, with whether a conviction or acquittal will or may result. (See also the decision of the Tasmanian Court of Criminal Appeal in R v Kim, a decision which was later approved in R v JS by a five member Court of Criminal Appeal in New South Wales.)

90 Ms Pritchard made four submissions about this analysis. First, there was a submission that the decision in Kim did not stand for the proposition enunciated by the Solicitor-General. Mr Sexton SC had submitted:

“So long as the ultimate judgment in any case where there has been a trial on indictment is the product of the verdict of a jury, it cannot be said that section 80 has not been observed."

91 Ms Pritchard pointed out that the passage in Kim actually states that:

“So long as the trial is by what may fairly be described as a jury and so long as any ultimate determination of guilt is by verdict of a jury, it cannot be said that the provisions of section 80 are offended."

92 Ms Pritchard submitted that the decision, accordingly, did not have any bearing on the issue for decision in the present matter. If it did have any bearing, Ms Pritchard argued that the passage suggested that the ultimate determination of guilt by verdict of a jury is a requirement in addition to the trial being by what may be described as a jury. I do not, however, accept that the passage should be read in this way. It seems to me to be clear that the passage is not speaking of an additional requirement but the same requirement, namely that there be a jury which determines guilt or innocence. In the present matter, were there no fitness issue, there would be a jury and its task would be to determine guilt or innocence.

93 The second submission related to the passage I have referred to in Cheung. Ms Pritchard argued that the passage needed to be understood in the light of the context in which it appeared. Counsel submitted that Cheung dealt with the duties of a sentencing Judge and the respective function of Judge and jury in that process. As to this argument, I accept that Ms Pritchard has correctly identified the context of the discussion in Cheung's case. I do not accept, however, that the value of the passage for the present analysis is limited or diminished by its context. It is a valuable statement of the process occurring where a person is tried on indictment for an offence.

94 The third argument advanced by Ms Pritchard was this: It is incorrect to characterise the constitutionally mandated task of a jury as exclusively to determine the ultimate guilt of the accused. There are a number of examples of the jury being charged with determining questions of fact other than the ultimate issue of guilt.

95 In support of this argument, Ms Pritchard mentioned the existence of a special verdict from a jury relating to jurisdiction (Thompson v R (1989) 169 CLR 1). Mention was also made of special verdicts generally, acknowledging that such verdicts should be obtained only in the most exceptional cases (R v Bourne 36 CRAPPR 125). Counsel also referred to the fact that a special verdict may involve a verdict of not guilty by insanity. To these examples might be added, although it was not mentioned by Ms Pritchard, the plea of autrefois, although this issue is now, in New South Wales, to be addressed by a Judge. (s 156 Criminal Procedure Act 1986).

96 Time will not permit an extended analysis of the historical origin of these somewhat rare features of a criminal trial. Although it is accepted that, historically, special verdicts might be sought in certain circumstances, this does not change my view in relation to the question of construction involved in the present matter. First, it needs to be recalled that, in times past, the jury was the only tribunal available to determine questions of fact, questions of law being for the decision of the Judge. Hence, the rise of the need to seek a special verdict. Secondly, there is, in my view, a significant difference between the nature of the fitness issue, when it arises, and the nature of the circumstances calling for the special verdicts mentioned above. There had been, for example, in the case of a special verdict from a jury relating to jurisdiction, a genuine debate as to whether “locality” was, in fact, an element of the offence. In Thompson, the High Court by a bare majority decided that it was not. The issue in Thompson, however, was predominately an issue as to the standard of proof to be applied to the issue. Further, the consequence of an adverse finding on jurisdiction did not lead to the end of the trial for all purposes. Rather it indicated that a trial for the same offence should proceed in another jurisdiction. As to insanity and autrefois, there is a plain connection between those “defences” and the question of guilt or innocence. The fitness issue, on the other hand, falls into a completely different category as I have explained. Finally, the historical presence of these rather unusual situations does not, in my view, affect the primary and substantial nature of a trial on indictment. This broad construction is the one that should be given to the words appearing in s 80 of the Constitution.

97 The fourth submission was one that was more broadly based than the three already discussed. Counsel argued that, while the primary function of a jury trial may well be the determination of guilt or innocence, the fitness issue should be seen nonetheless as an essential function of a jury trial. This argument, it may fairly be said, is at the heart of the accused's submission on the constitutional issue. It is not, however, a submission that, in my view, should be accepted.

98 First, the historical analysis shows that the fitness issue was, prior to and at federation, an issue determined by a jury empanelled for that purpose. But that historical fact does not, in my view, establish that the fitness issue was "an essential" part of the "trial on indictment" as that expression appears in s 80 of the Constitution. Certainly, it was, and is, an important function; and, certainly, it occurred either before or during the hearing of a trial on indictment. As a matter of necessity, it had to arise prior to or at the trial.

99 Secondly, however, the real nature of a fitness issue, when it arose, was its operation, as Heydon J observed in Eastman v DPP, as a "key rule of criminal procedure" designed to prevent unfairness or a tainted conviction. It was, in effect, a complete brake on the continuance of the trial. But it was not, in a relevant sense, part of the trial on indictment. It had nothing to do with the determination of guilt or innocence and, in that sense, it was not an essential or fundamental aspect of a trial on indictment.

100 Thirdly, the mere fact that historically a jury determined the fitness issue did not elevate the fitness issue, in a relevant sense, into an essential or fundamental feature of a process of a trial on indictment.

Other Matters

101 The Solicitor-General had submitted that the term "trial", in the context of section 80, is the substantive determination of the guilt or innocence of the accused resulting in a conviction or acquittal. The Solicitor-General, however, placed reliance on United States v Curtis (1826) 4 Mason 232; 25 F Cas 726.

102 While I agree with the ultimate submission made by the Solicitor-General, I also agree with Ms Pritchard that United States v Curtis is of little assistance in the present discussion. In that case, Winslow Curtis had been found guilty of a charge of murder. The prisoner moved for an arrest of judgment on the ground that no copy of the indictment had been furnished two days before his arraignment and pleading, as required by the State statute. This argument failed. In the course of the judgment of Circuit Justice Storey (with whom Davis J agreed), the following statement was made:

“In short, so far as authorities or reasoning or forms go, there can be no legal doubt that by the term "trial" is generally intended, in the law, the actual trial of the prisoner by the jury."

103 Mr Sexton SC had placed reliance on this passage for his principal argument. Against that background, he argued that arraignment and pleading preparatory to the trial does not infringe s 80 as these steps in the criminal justice process are not part of "the trial". By analogy, he argued that the fitness issue is not "the trying of the cause" and is generally a pre-trial matter that falls outside the adversarial system.

104 United States v Curtis is referred to by Dr Quick and Mr Garran in their commentary on s 80 of the Constitution (Annotated Constitution of the Australian Commonwealth 1901, reprinted in 1976). I agree with Ms Pritchard, however, that the distinction in Curtis between arraignment and trial has no real bearing upon whether the expression in s 80 of the Constitution requires the question of fitness to be determined by a specially empanelled jury. Essentially the case dealt with local statute, although reliance was also placed upon a particular view of the nature of an arraignment at common law. Consequently, I have not found the decision of assistance in the present matter.

105 Ms Pritchard, in turn, placed reliance upon an American decision. This was the decision of the Alabama Supreme Court in Ex Parte LaFlore, mentioned earlier in para 37 of this decision. I have not found this decision of any great assistance. It was a case dealing with a State Constitution expressed in different terms from those used in s 80. I do not consider, as Ms Pritchard argued, that it is “a decision directly in point” for the resolution of the present matter.

Conclusion

106 I am satisfied, for the reasons given in this decision, that the fitness issue is not itself a trial on indictment or, in a relevant sense, a part of a trial on indictment. In reaching this decision, I have borne in mind that the Constitution is to be construed as a statute enacted by the Parliament of the United Kingdom, to be interpreted in accordance with the general principles of statutory construction, although recognising at the same time that it is a statute of a special kind (Eastman v The Queen per McHugh J, paras 134 to 139).

107 In my opinion, allowing for the broad interpretation that should be given to the Constitution (Cheng per Gaudron J at 80-82), I do not consider that the interpretation advanced on behalf of the accused is warranted by the terms of the statute. I conclude that s 80 plays no part on the relevant provisions of the Judiciary Act picking up the subject State law (section 11 of the Mental Health (Criminal Procedure) Act 1995) and making it applicable to the present Commonwealth prosecution. In my view, the fitness issue in the present matter may proceed before a Judge without infringing the constitutional guarantee in s 80 of the Constitution.

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