Regina v Jeans

[2005] NSWCCA 73

CITATION:	Regina v Jeans [2005] NSWCCA 73
HEARING DATE(S):	7/3/05
JUDGMENT DATE:	6 July 2005
JUDGMENT OF:	Spigelman CJ at 1; Grove J at 2; Bell J at 3
DECISION:	Application for leave to appeal allowed; Appeal dismissed

LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	Davern v Messel (1984) 155 CLR 21 Parisienne Basket Shoes Pty Ltd v Whyte (1937-1938) 59 CLR 369 R v Nicolaidis (1994) 72 A Crim R 394 Rogers v The Queen (1994) 181 CLR 251 Subramaniam v the Queen [2004] HCA 51; (2004) 211 ALR 1
PARTIES:	Regina (Respondent) Anthony John Jeans (Applicant)
FILE NUMBER(S):	CCA 2004/2674
COUNSEL:	T. Warwick (Applicant) D Frearson SC (Crown)
SOLICITORS:	F Wilson (Applicant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	99/41/0227
LOWER COURT JUDICIAL OFFICER:	Mahoney ADCJ

IN THE COURT OF
CRIMINAL APPEAL


2004/2674

SPIGELMAN CJ
GROVE J
BELL J

Wednesday 6 July 2005

Regina v Anthony John Jeans

Judgment

1 SPIGELMAN CJ: I agree with Bell J.

2 GROVE J: I agree with Bell J.

3 BELL J: This is an application for leave to appeal brought by Anthony John Jeans against an interlocutory order made by Mahoney ADCJ (the Judge) on 7 October 2004, that the question of his unfitness to be tried be set down for hearing by a judge and jury.

4 The order was made by the Judge following the dismissal of a motion brought by the applicant claiming an order permanently staying proceedings on an indictment that charged him with sexual offences against a complainant, CK. The offences are alleged to have been committed between 1 and 4 May 1998.

5 A chronology prepared on the applicant’s behalf was tendered on the hearing of his motion. The Judge incorporated it in his reasons, noting that its contents had not been disputed. The chronology recorded that the applicant had been arrested on 25 May 1999, committed for trial on 25 October 1999 and arraigned at a call-over on 24 July 2000. A document described as a District Court Results Sheet (the results sheet) containing brief particulars of the proceedings before the District Court on that occasion was in evidence. It recorded:

“Defence indicate PNG
SONS
btc.”
It is not in issue that this may be interpreted as reading, “Defence indicate plea not guilty. Stood over next sittings. Bail to continue.”

6 The proceedings before the Judge were approached both by the applicant and the Crown upon the common assumption that on 24 July 2000 the applicant had been arraigned upon an indictment that charged him with sexual offences against CK.

7 The chronology recorded that the proceedings had been fixed for trial before the Court at Queanbeyan on 23 October 2000 and that the trial had not proceeded. A notation on the court file recorded:

“Crown to investigate the fitness to plead issue”.

8 The Judge was informed that the proceedings had been listed for trial before Hosking DCJ on 30 January 2002 and that on that day his Honour referred the matter to the Attorney General for consideration of an inquiry into the applicant’s fitness for trial. Psychiatric reports had been obtained by the parties. Dr Westmore, retained on behalf of the applicant, and Dr Wong, retained on behalf of the Crown, were in agreement that the applicant is a person of compromised intellectual functioning. Dr Wong considered that the applicant was unfit to be tried and Dr Westmore considered that it would be unwise to find the applicant fit to be tried.

9 On 3 February 2003 the proceedings were listed before Woods DCJ. His Honour was informed that the proceedings were listed for a fitness hearing. No document evidencing the determination of the Attorney General under s 8 of the Mental Health (Criminal Procedure) Act 1990 (the Act) was before the Court. A jury was empanelled to try the question of the applicant’s fitness. The applicant was not arraigned in the presence of the jury, or at all.

10 The indictment on which the parties believed the applicant to have been arraigned contained three counts charging him with offences against CK contrary to s 66C(3) of the Crimes Act 1900. Subsequently an ex officio indictment was found by a Deputy Director of Public Prosecutions charging the applicant with three offences contrary to s 61J of the Crimes Act (sexual intercourse without consent knowing the complainant was not consenting) and, in the alternative, with three counts under s 66C(3). It was this indictment that was tendered at the inquiry before Woods DCJ.

11 After the jury was empanelled Woods DCJ sent them away until 2:00 pm, explaining that he needed to attend to a number of legal matters. In the absence of the jury he raised with counsel: (03/20/03 T 8.9-12)

“Secondly, there’s supposed to be, is there not, since the question arises before arraignment, a document signed by the Attorney General. Have you got that? Section 8 of the [Mental Health (Criminal Procedure)] Act. I’ll leave that with you over lunch.”

12 After the luncheon adjournment the transcript records the following (03/02/03 T 13.3-16):

“HIS HONOUR: Mr Crown, have you looked at that section?
CROWN PROSECUTOR: Yes, your Honour. The answer is that the accused was arraigned on 24 July 2000 and it was after the entering, after the arraignment that the question of fitness was raised and I was going to ask if the Court file could be handed down so that we can physically locate the indictment. The written record made available to me during the luncheon adjournment was that Mr Jeans was arraigned on these matters on 24 July 2000. I should say that the indictment then contained three counts rather than six and there was a direction made by the Director subsequently ex officio adding three counts in the alternative.

13 The Court resumed the hearing in the presence of the jury. His Honour explained the purpose of a fitness hearing and the consequences of a finding that the applicant was unfit to be tried. Evidence was called from Dr Wong and Dr Westmore. On 4 February 2003 the Crown Prosecutor tendered the indictment containing six counts as the indictment that would be presented at trial. It was dated 3 February 2003.

14 On 4 February 2003 the jury returned a verdict that the applicant was unfit to be tried. Woods DCJ referred the applicant to the Mental Health Review Tribunal (the Tribunal) pursuant to s 14 of the Act. Section 16 of the Act sets out the functions of the Tribunal on the referral of a person found unfit to be tried for an offence. Relevantly, the Tribunal must, as soon as practicable after the person has been referred, determine whether, on the balance of probabilities, the person will during the period of twelve months after the finding of unfitness become fit to be tried.

15 In late 2003 the Tribunal determined that the applicant would not become fit to be tried during the twelve months after the finding of unfitness.

16 In cases where such a determination is made, the Attorney General may, pursuant to s 18 of the Act, direct that a Special Hearing be conducted in relation to the offence with which the person is charged or advise the court that the person will not be further proceeded against by the Attorney General or the Director of Public Prosecutions in respect of the offence.

17 No direction or advice pursuant to s 18 of the Act has been given. We were informed by the Crown Prosecutor that no step had been taken under s 18 because the Attorney General considered that the proceedings before Woods DCJ were a nullity. This was because the applicant had not been arraigned in the presence of the jury before Woods DCJ, nor had the Attorney General made a determination pursuant to s 8 of the Act that an inquiry be conducted. It followed that that the proceedings before Woods DCJ were without jurisdiction and that the order made by his Honour entering the verdict and referring the applicant to the Tribunal were void: Parisienne Basket Shoes Pty Ltd v Whyte (1937-1938) 59 CLR 369 per Dixon J at 389.

18 In February 2004 the applicant gave evidence on behalf of the Crown in criminal proceedings brought against his sister arising out of the same incidents as are the subject of the charges against him. In March 2004 Dr Wong prepared an updated report, which took into account the evidence that the applicant had given at his sister’s trial. Dr Wong adhered to his opinion that the applicant was unfit to be tried.

19 On 1 April 2004 the Solicitor General, acting pursuant to a delegation, determined under s 8 of the Act that an inquiry as to the applicant’s unfitness to be tried in respect of a number of offences against CK be conducted. It was the making of the order that the inquiry be listed for hearing that is the subject of the present application.

20 On the hearing of his motion for a permanent stay, it was the applicant’s contention that Woods DCJ had jurisdiction to make the orders that he did because the applicant had been arraigned on 24 July 2000. It was submitted that there was no necessity for him to have been re-arraigned in the presence of the jury at the fitness inquiry. It was the applicant’s case that the proceedings before Woods DCJ had been regularly conducted and that it would be an abuse of the process of the court to re-litigate the issue of his unfitness for trial. In the alternative he submitted that, having regard to the stance that the Crown had taken before Woods DCJ, it was estopped from contending that he had not been arraigned for the purposes of s 9 of the Act.

21 It was the Crown’s position before the Judge that the applicant had been arraigned on 24 July 2000, but in it’s submission (contrary to the stance it had taken before Woods DCJ) the Court had been without jurisdiction. This was because the provisions of ss 9 and 10, which govern the circumstances in which the Court may initiate an inquiry into fitness, were submitted not to have been engaged.

22 Section 7 of the Act provides that the question of a person’s unfitness to be tried is to be raised, so far as is practicable, before the person is arraigned on an indictment in respect of the offence. Sections 8, 9 and 10 of the Act provide as follows:

8 Procedure where question of unfitness raised before arraignment

(1) If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.

(2) The Attorney General may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted.

9 Procedure where question of unfitness raised after arraignment

If the question of a person’s unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence.

10 Procedure on raising question of unfitness

(1) If, in respect of an offence:
(a) the Attorney General determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or
(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 Attorney General’s determination is made or the question is raised, as the case may be, 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) Before conducting an inquiry, the Court may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the accused person bail in accordance with the Bail Act 1978,
(c) remand the accused person in custody for a period not exceeding 28 days,
(d) request the accused person to undergo a psychiatric examination or other examination,
(e) request that a psychiatric report or other report relating to the accused person be obtained,
(f) discharge any jury constituted for the purpose of those proceedings,
(g) make any other order that the Court considers appropriate.
(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.

23 It was the Crown’s submission that the words “after the person is arraigned on a charge in respect of the offence” in s 9 are to be read as referring to arraignment in the presence of the jury before whom the person is to be tried. The scheme of the Act was said to be such that where an issue of fitness arises before the “trial proper” it falls to the Attorney General to determine whether or not a fitness hearing should be conducted. On this approach, s 9 was to be construed as applicable only when an issue of fitness arises after arraignment at trial.

24 Section 130 of the Criminal Procedure Act 1986 provides that this Court or the District Court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned on it. Orders may be made for the purposes of the trial before a jury is empanelled for the trial: subs (2). The accused may be arraigned on more than one occasion: R v Nicolaidis (1994) 72 A Crim R 394. It is not apparent that the words, “after the person is arraigned on a charge in respect of the offence” in s 9 should be confined in the way contended for by the Crown. In the event it is not necessary to decide the point.

25 The application was heard on 7 March 2005. The Crown maintained its primary contention that an arraignment at call-over was not an arraignment for the purposes of s 9. However, on this occasion the Crown raised as an issue whether the applicant had been arraigned on any earlier occasion. The Crown submitted that the notation on the results sheet was ambiguous. The Crown had ordered the transcript of proceedings on 24 July 2000 but it had not been received at the time of the hearing.

26 The Crown was given leave to file a copy of the transcript of the District Court proceedings of 24 July 2000, together with the transcript of subsequent occasions when the proceedings had been before the District Court prior to the date of the fitness hearing before Woods DCJ. Both parties were given leave to file supplementary written submissions addressing any matters raised by the provision of the further transcript.

27 On 15 March 2005 the Crown filed supplementary written submissions to which was attached the transcript of proceedings on 24 July 2000 transcript. Subsequently, under cover of letters dated 23 March, 11 and 12 April, the transcripts of proceedings on 23 October 2000, 29 January 2001 and 8 April 2002 were supplied by the Crown.

28 Supplementary written submissions were filed on behalf of the applicant on 1 June 2005. We were informed that the applicant had requested, and the Crown had agreed, to the provision of the transcripts of a number of further occasions on which the proceedings had been before the District Court. Transcripts for the following dates were in due course forwarded by the Crown to the Registry: 12 and 16 March 2001, 14 May 2001, 15 October 2001, 15 April 2002, 29 July 2002 and 13 September 2002. By letter dated 17 June 2005 the Crown informed the Registrar that all outstanding transcript had been supplied.

29 The transcript of proceedings on 24 July 2000 makes clear that the applicant was not arraigned before the Court on that date. The presiding judge was informed that the matter would be proceeding as a trial and that it would be necessary for it to be put over to the next sittings. His Honour observed (24/07/00 T 25-28):

“There’s no point in having him arraigned, I don’t believe in arraigning anybody, I don’t see the point in it, unless the person is going to plead guilty, there’s not much point in arraigning.”

The proceedings were stood over to a call-up on 6 September 2000.

30 The motion for a permanent stay of proceedings was determined upon the erroneous assumption that the applicant had been arraigned. The Judge accepted the Crown Prosecutor’s submission that pre-trial arraignment had not conferred jurisdiction on Woods DCJ pursuant to s 9 of the Act. The present application for leave to appeal was brought on and argued on the basis that there had been an arraignment in the District Court before the matter came before Woods DCJ on 3 February 2003, and that the Judge erred in concluding that in these circumstances the inquiry into the applicant’s unfitness to be tried had been without jurisdiction.

31 In the notice of application for leave to appeal the applicant identified as the orders that he sought:

“1. That criminal proceedings against Anthony John Jeans be listed for Special Hearing by Judge and Jury.
2. In the alternative, that the criminal proceedings against Anthony John Jeans be permanently stayed.”

32 On the hearing of the application counsel acknowledged that this Court did not have power to make the first of the orders sought. She did not press for order 2, a realistic stance in light of the judgment of the High Court in Subramaniam v the Queen [2004] HCA 51; (2004) 211 ALR 1 per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ at [35]. Counsel identified the order that she was seeking in these terms:

“I would be seeking a declaration that the matter would not go to a second fitness hearing and then it would be a matter for the Attorney” (T 4.23-25).
As I understand it, the applicant seeks a declaration that the proceedings before Woods DCJ were within jurisdiction and that the orders made by his Honour in consequence of the jury’s verdict were of effect. Should a declaration in terms such as these be made it would then be a matter for the Attorney General to give consideration to such action as he may determine under s 18 of the Act.

33 The first four grounds of appeal in the notice of appeal variously contended that the Judge erred in finding that the accused had not been arraigned for the purposes of the Act and in failing to find that the fitness hearing before Woods DCJ was regularly determined. It was also contended that the Judge erred in failing to find that a further fitness hearing would constitute an abuse of process.

34 Written submissions on the applicant’s behalf filed prior to the hearing were directed to the contention that the presumed arraignment on 24 July 2000 was an arraignment for the purposes of s 9 of the Act. These submissions fall away in light of the evidence that the applicant was not arraigned.

35 It was also put on the applicant’s behalf that the Crown is estopped from submitting that he had not been arraigned on 24 July 2000. The estoppel was said to arise because of the stance that the Crown had taken in the proceedings before Woods DCJ. Had the point been taken on that occasion (that the question of his unfitness had not been raised after he had been arraigned for the purposes of s 9) there would have been no obstacle to obtaining a prompt determination by the Attorney General under s 8. In these circumstances counsel submitted that, “the Attorney General is estopped from contending that the applicant was not arraigned on 24 July 2000” (written submissions [58]). This contention was not developed on the hearing of the application.

36 In Rogers v The Queen (1994) 181 CLR 251 the High Court rejected the proposition that principles of issue estoppel as they have developed in civil proceedings have application with respect to criminal proceedings. I do not consider that the Crown is estopped from a submission either that the applicant was not arraigned on 24 July 2000 or that his arraignment on that date did not confer jurisdiction on the District Court on 3 February 2003 to conduct an inquiry into his unfitness to be tried.

37 It was contended, in the alternative, that to subject the applicant to a further inquiry into his unfitness to be tried would constitute an abuse of the process of the Court. This submission was allied to the submission that the Act provides “procedural modifications to benefit an accused person who is unfit” and that to expose him to a further inquiry into unfitness would constitute a form of double jeopardy. The suggested abuse depends on an acceptance that the fitness inquiry conducted before Woods DCJ was regular and the orders made giving effect to the verdict of the jury were valid. I do not consider that the principle of double jeopardy is of application in the context of an inquiry into unfitness for trial. The Act contemplates that a person who is unfit to be tried may subsequently become fit. The conduct of more than one inquiry into unfitness for trial does not place the individual at peril of twice being convicted for the same offence: Davern v Messel (1984) 155 CLR 21 per Gibbs CJ at 30.

38 In the supplementary submissions filed on the applicant’s behalf it was put that the Crown had failed to establish that the Attorney General (or his delegate) had not made a determination under s 8 on or before 3 February 2003. It was submitted that the Court may infer that, in order for the matter to be listed, an officer in the Director of Public Prosecutions (as a delegate of the Attorney General) had determined that an inquiry into unfitness should be conducted.

39 No document evidencing a determination by the Attorney General (or his delegate) under s 8 was before Woods DCJ. As I have noted, the Judge raised the issue with the Crown Prosecutor, requesting that he have the

s 8 document available after the luncheon adjournment. On resumption his Honour was told, wrongly, that the applicant had been arraigned. I do not draw the inference that the Attorney General had made a determination that an inquiry into the question of the applicant’s unfitness to be tried before 3 February 2003 when the proceedings were before Woods DCJ.

40 The transcript of proceedings on 29 July and 13 September 2002 casts light upon how the fitness hearing came to be listed. On 29 July 2002 the proceedings were mentioned before Graham DCJ in the District Court at Queanbeyan. His Honour inquired as to the position of the matter. The Crown Prosecutor informed him that there was an issue of fitness and went on to inquire whether the court file revealed that the applicant had been arraigned. The Prosecutor observed:

“If he has then it’s a matter for the Court to determine the issue and if not it has to go to the Attorney.” (29/07/02 1.43-45)
Judge Graham consulted the court file, and noted that the proceedings had been stood over for plea or mention to 20 August 2001. The Crown Prosecutor responded that:

“I think we could overcome that if he were to be arraigned within these sittings and the issue could be aired then” (29/07/02 2.6-8)

There followed some further discussion. The Crown Prosecutor and the solicitor appearing for the applicant indicated that the fitness hearing might more conveniently be conducted in the District Court at Sydney. In light of these submissions Graham DCJ stood the proceedings over to the District Court at Sydney on a date to be fixed. The applicant was not arraigned before Graham DCJ.

41 The matter came before Hosking DCJ on 13 September 2002. The applicant’s solicitor was not present and a solicitor assisted the applicant as amicus curiae. Judge Hosking was told that the matter was listed for mention in order to fix a date for a fitness hearing. His Honour enquired:

“Has this man previously been arraigned or is (Criminal Procedure) Act (sic) where the Attorney General has determined that there be a fitness hearing, or what is it? How does this question arise?” (13/09/02 1.51-54)
The solicitor appearing as amicus submitted that the Attorney General had nothing to do with the matter at this stage and that the question was whether the issue had been raised bona fide. The Judge again inquired whether the question had arisen after the applicant had been arraigned. After some further discussion the following exchange occurred:

“HIS HONOUR: Well, if that is so, isn’t the procedure that has to be adopted that the matter has to be referred to the Solicitor General under section 8 of the Mental Health (Criminal Procedure) Act?
LYNCH: If Mr Jeans hasn’t been formally arraigned no.
CROWN PROSECUTOR: I think he has been arraigned.
LYNCH: The only question is the court has to believe that the question has been raised bona fide, and to the extent that there appear to be at least two reports lurking on the defence file assessing this very issue, I would urge your Honour to accept the prima facie that is so.
HIS HONOUR: I don’t have any difficulty with that part of it. As I remember the legislation, Mr Lynch, the trigger to this is the question of whether he’s either previously arraigned or not, and as I understand the legislation, maybe I’m wrong, if he hasn’t been arraigned it has to be referred to the Solicitor General” (13/09/02 T 2.46-3.7).

42 At this stage in the proceedings it appears that Mr Favretto, from the Office of the Director of Public Prosecutions, offered to assist the Court. He submitted that the scheme of the legislation was such that even if the applicant had been previously arraigned, it was a matter for the Attorney General to make a determination under s 8. There followed discussion in which it was suggested that the matter be fixed for a fitness hearing and that in the interim the Crown would attend to seeking a determination from the Attorney General. Judge Hosking said that he proposed tentatively listing the matter for a fitness hearing on 21 November 2002 and for mention two weeks prior to that date. His Honour observed:

“And if the paperwork hasn’t been done well you can abort that date” (13/09/02 4.3-4).

43 The transcript of the proceedings on 8 November 2002 does not form part of the material on the hearing of this application. It is apparent that the matter did not proceed as a fitness hearing on 21 November 2002.

44 Part 2 of the Act deals with criminal proceedings in the Supreme Court and the District Court relating to persons affected by mental disorders. The District Court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned: s 130(2) Criminal Procedure Act. The jurisdiction of the District Court to hold an inquiry to determine whether a person is unfit to be tried, at least in a case in which the Court is not already seized of jurisdiction following the person’s arraignment, depends upon (i) a bill of indictment having been found, (ii) the Attorney General’s determination that an inquiry should be conducted before the hearing of the proceedings in respect of the offence and (iii) that the Attorney General has not determined that there is no longer any need for an inquiry before it is commenced: s 10(1) of the Act.

45 The applicant was not arraigned on 24 July 2000. The transcript of proceedings on each of the dates thereafter that have been filed pursuant to the grant of leave suggest that the applicant was not arraigned in the District Court on any occasion prior to 3 February 2003. The District Court did not have jurisdiction with respect to proceedings on indictment charging the applicant with sexual offences against CK. No determination had been made by the Attorney General as to an inquiry into the question of his unfitness to be tried prior to 3 February 2003.

46 The Attorney General by his delegate has now made a determination pursuant to s 8 of the Act that an inquiry be conducted before the hearing of the proceedings in respect of the offence. The order the subject of the application for leave to appeal is an order that the proceedings be fixed for hearing before a judge and jury to determine that question.

47 The proceedings have had an unfortunate history. However, I do not consider that the Judge erred in finding that the question of the applicant’s unfitness to be tried had not been regularly determined by the proceeding before Woods DCJ and a jury. I do not consider that his Honour erred in rejecting the contention that to conduct an inquiry into whether the applicant is unfit to be tried pursuant to the determination of the Solicitor General made on 1 April 2004 would constitute an abuse of the process of the Court.

48 For these reasons I would grant leave to bring the application pursuant to s 5F(3)(a) of the Criminal Appeal Act, but I would dismiss the appeal.

**********