Shane Mundie v Khye Sullivan
[2013] ACTMC 28
•17 December 2013
SHANE MUNDIE v KHYE SULLIVAN [2013] ACTMC 28
(17 December 2013)
CRIMES ACT 1900 (ACT) Pt 13 - FITNESS TO PLEAD – indictable offences which can be heard and determined summarily – jurisdictional preconditions in ss 333 and 335(1) – when to be considered by Court – effect of Court failing to do so – no power to make finding as to fitness to plead – purported finding void.
Crimes Act 1900 (ACT) pt 13
Magistrates Court Act 1930 (ACT)
Court Procedures Rules 2006 (ACT)
DJL v Central Authority (2000) 170 ALR 659
No. CC 742 of 2013
Magistrate: Morrison
Magistrates Court of the ACT
Date: 17 December 2013
IN THE MAGISTRATES COURT OF THE )
)
AUSTRALIAN CAPITAL TERRITORY ) No. CC 742 of 2013
BETWEEN:SHANE MUNDIE
Informant
AND:KHYE SULLIVAN
Defendant
DECISION
Magistrate: Morrison
Date: 17 December 2013
Place: Canberra
The defendant Khye Sullivan was charged with 2 offences. One was the charge giving rise to the current proceedings. A question as to his fitness to plead was raised in relation to both charges. The question was reserved for investigation in accordance with section 314 of the Crimes Act 1900 (ACT). An expert medical report was obtained. The report has been marked by me as “Exhibit A - 6 June 2013”. On the basis of the unchallenged evidence by way of that report, I found the defendant unfit to plead and unlikely to become fit to plead in the next 12 months.
I do not have a transcript of what took place in court on 6 June. I have however had access to the recording of the proceedings before the Court on that day. Mr Davies appeared for the defendant. The recording indicates that on that day the question of jurisdiction was raised but not until after the defendant had been found unfit to plead and unlikely to become fit to plead within the next 12 months. At that point Mr Davies informed the Court that a guardianship order was in place. He took instructions from a person he described as a “representative of the Public Advocates Office” who was apparently in Court at the time. After taking those instructions, he told the Court that his instructions were “not to take the matter to the Supreme Court” and for both matters (referring to the other charge as well as the present charge) to proceed by way of special hearing “in this court”.
In relation to the other charge, a hearing has been held but I was not satisfied beyond reasonable doubt that the defendant had engaged in the conduct required for the offence charged. The information was dismissed.
Insofar as this charge is concerned a hearing date of 26 July 2013 was set. The July hearing date was subsequently vacated and the matter was set for hearing on 13 September 2013. It was indicated at that time that an application may be made for evidence to be taken in advance under section 318 of the Magistrates Court Act 1930 (ACT). The matter came before the court again on 13 August 2013. That may have been because of a breach of bail. It is apparent that some consideration was then given to the requirements of section 333 of the Crimes Act 1990 (ACT). The bench sheet records that the defendant’s “remand to 13 September 2013 remains” with “bail to continue” and goes on to include the following “Note that section 333 evidence to be provided at hearing”. I have not taken steps to obtain any transcript or recording of what took place in court on 13 August 3013 other than what is indicated on the bench sheet. For reasons which will become apparent I do not believe that it is necessary to do so.
No hearing took place on 13 September. When the matter came before the court that day, Mr Michael Toole the solicitor for the defendant handed up an affidavit affirmed that day. In it he refers to a communication from a Dr Bonner who had seen the defendant in August 2013. The text of the communication is set out in paragraph 3 of the affidavit. In summary, the doctor expresses the view, based on observations made by him in August that the defendant may be fit to plead.
On the basis of the material in that affidavit no hearing took place on 13 September. The proceedings were adjourned and I invited written submissions on the options available to the court.
At the time of inviting submissions I anticipated that they would be directed towards the question of whether or not this court has the power to revisit the determination that the defendant was unfit to plead, whether by way of fresh investigation under section 315 or otherwise.
The prosecution’s written submissions however raise a number of fundamental preliminary questions about the Court’s jurisdiction.
Those submissions have required me to form a view as to the proper interpretation of the fitness to plead provisions of part 13 of the Act. It is necessary to start with a general overview.
Part 13 of the Crimes Act 1900 (ACT) is headed “Unfitness to Plead and Mental Impairment”. It deals with two discrete but sometimes overlapping questions. The first is whether a defendant’s mental state is such that he is unfit to plead – being something presently determined at the time when the defendant is brought before the court. The second is whether the defendant is not guilty of a charge because of mental impairment – being something determined having regard to the defendant’s mental state at the time that the alleged offending occurred.
Division 13.2 is headed “Unfitness to plead”. It is expressed to apply to criminal proceedings in both the Supreme Court and the Magistrates Court (section 310); it sets out what constitutes unfitness to plead (section 311); and it deals with the procedure to be followed if the question of a defendant’s fitness to plead in relation to a charge is raised.
Section 314 differentiates between the question being raised in the Magistrates Court at a committal hearing and other than at a committal hearing. If the question is raised “other than at a committal hearing” and the court is satisfied that there is a real and substantial question about the defendant’s fitness to plead the court must reserve the question for investigation in accordance with the division. There is nothing in section 314 (apart from the reference to committal proceedings) which purports to place any conditions on the type of charge or circumstances in respect of which a fitness to plead enquiry can be properly conducted by the Magistrates Court.
Divisions 13.3 and 13.4 deal with cases in the Supreme Court and Magistrates Court respectively where a person is found not guilty because of mental impairment. They are not relevant for present purposes.
Division 13.5 deals with cases where a person has been convicted of an offence but the court is satisfied that the convicted person has a mental impairment. Again it is not relevant for present purposes.
Division 13.6 is headed “Summary proceedings against mentally impaired people”. The division is expressed to apply (via section 332) to criminal proceedings (but not committal proceedings) with respect to summary offences and indictable offences that may be heard and determined summarily.
The structure of the legislation surrounding the actual conduct of the special hearing in the Magistrates Court is somewhat curious. For Supreme Court proceedings, there is express provision for the conduct of a special hearing in sections 316 and 317. There is no equivalent section for proceedings in the Magistrates court. The power to conduct a special hearing in the Magistrates Court is to be implied from the somewhat tangential reference to such a hearing in section 335(2). That section (335(2)) falls within division 13.6 the heading to which as I have said refers to “mentally impaired people”.
Section 333, within division 13.6, provides that proceedings to which the division applies are to be heard and determined summarily if:
a.the Magistrates Court is satisfied that the accused is unable, because of mental impairment, to elect to have the case heard summarily; and
b.the prosecution agrees to the offence being heard and determined summarily.
[emphasis added]
That section uses the term “mental impairment”. For the purposes of the Act, that term is defined by cross reference to section 27 of the Criminal Code 2002 (ACT), non-exhaustively, as including senility, intellectual disability, mental illness, brain damage and severe personality disorder. “Mental illness” is defined relevantly as being an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary.
The term “mental impairment” is used in section 334 but not in section 335. Section 333 however does not limit itself to the application of section 334 – it refers to the application of the division – meaning division 13.6 as a whole – which includes section 335.
Whilst the concepts of mental impairment and unfitness to plead are clearly different I think it is fair to observe that a condition which constitutes or gives rise to mental impairment may, and perhaps even is likely, to also give rise to unfitness to plead.
It is possible but, on balance I think unlikely, that section 333 is intended to be limited to matters dealt with under section 334. Division 13.6 is short, containing few sections, the heading itself includes reference to mentally impaired persons and of course such an interpretation is contrary to the plain language of section 333.
In the end result I conclude that section 333 applies, as it says, to proceedings under the division – which includes special hearings in the Magistrates Court impliedly authorised under section 335.
It follows that when dealing with a fitness to plead proceeding in relation to an indictable offence the Court is required to consider whether the defendant also suffers a mental impairment, and if so, to address the jurisdictional preconditions in section 333.
Division 13.6 also contains sections 334 and 335. Section 334 is a power to dismiss charges either unconditionally or with a diversion for mental health assessment and treatment. It is not relevant for present purposes.
Section 335 also within division 13.6 is headed “Unfitness to plead – Magistrates Court”. By virtue of subsection (1), it is expressed to apply to an indictable offence that can be heard and determined summarily if the Magistrates Court is of the opinion that the case can properly be disposed of summarily having regard to certain criteria set out in the section. (There is no separate section dealing with charges of summary only offences. The effect of s335(1) is that the section extends to summary/indictable matters subject to the conditions specified.)
As I have already said, the power of the Magistrates Court to conduct a special hearing in the Magistrates Court is to be implied from the reference to such a hearing in section 335(2).
The opening subsection - 335(1) - requires that the magistrate turn his or her mind to the question posed in it, to hear and take into account relevant representations by both prosecution and defence and to form an opinion as to whether the case can properly be disposed of summarily.
The criteria to be considered as set out in that section include:
(d) any other circumstances that appear to the Magistrates Court to make it more appropriate for the case to be dealt with on indictment rather than summarily.
I note that the section makes no reference to the Court having jurisdiction on any other basis – that is by virtue of consent having been given or an election made. That is something I return to later in these reasons.
Subsection 2 of section 335 then goes on to deal with the orders that may be made by the Magistrates Court if the court decides that a person is unfit to plead and after hearing the charge is satisfied beyond reasonable doubt that the person engaged in the conduct required for the offence charged. The reference in that subsection to the hearing just referred to is the Magistrates Court equivalent of what is described as a special hearing in the Supreme Court under section 316. For convenience I have referred to it in these reasons also as a special hearing.
What follows from a special hearing where the conduct is proved depends upon whether the offence is a serious offence as defined. If it is, the Court must make one of the 2 orders provided for in subsection 335(2). There is no power to do otherwise. For a non-serious offence, the Court may make any order it considers appropriate, including one of the 2 orders just referred to.
I return to the Director’s submissions.
The first of the jurisdictional questions raised by the Director is based on section 314(1) of the Act which sets out what the Magistrates Court must do when the question of a defendant’s fitness to plead is raised. That section is in the following terms:
If the question is raised in the Magistrates Court (other than at a committal hearing) and the Court is satisfied that there is a real and substantial question about the defendant’s fitness to plead, the Court must reserve the question for investigation under this division. [emphasis added]
At first glance it appears that the reference in that section to a committal hearing is intended to identify a point in time in the course of proceedings when a question of fitness to plead arises. It is not in contest in the present case that the question of the defendant’s fitness to plead did not arise in the course of a committal hearing in the ordinary sense – even allowing for the very streamlined manner in which, as a matter of practice, committal proceedings often take place.
However, again for reasons which will become apparent, I conclude that the reference to committal hearing in the section has a broader significance. It is convenient to deal with the other jurisdictional points raised and return to section 314 later.
The Magistrates Court has no power to hear and determine matters outside the authority conferred on it by the Magistrates Court Act 1930 (ACT) or other legislation. In the present case, the defendant has been charged with an offence carrying a maximum sentence of imprisonment for seven years. In the ordinary course of events, the court’s jurisdiction to deal with such a charge is governed by section 375 of the Crimes Act 1900 (ACT).
Section 375 sets out a procedure under which some charges can be heard and determined summarily, subject to the satisfaction of certain jurisdictional preconditions. The Director’s submissions refer to such charges as summary/indictable matters and it is convenient to adopt that expression in these reasons.
Under subsection (9) of section 375, when the case is ready to be listed for hearing, the court must ask the defendant whether the defendant consents to the case being disposed of summarily.
Subsection (10) goes on to provide that the court may hear and determine the charge summarily, and may sentence or otherwise deal with the defendant according to law if:
(a) the defendant pleads or is to be taken to have pleaded not guilty to the charge; and
(b) the court considers that the case can properly be disposed of summarily; and
(c) the defendant consented to the case being disposed of summarily and the consent has not been withdrawn under section 375A; and
(d) if the charge is for an offence against the Criminal Code section 310 or section 312—the prosecutor also consents to the case being disposed of summarily.
Section 375 is expressed, in subsection (4) to allow the court to proceed with summary disposal if “the court considers that it has no jurisdiction, apart from this section, to hear and determine the charge summarily”.
I comment here that I have concluded that the expression “to hear and determine a charge” is a generic one intended to include the disposal of the matter by way of the conduct of a special hearing or indeed any other disposition. The use of that expression in section 375 as well as in section 333 reinforces that conclusion.
The satisfaction of the jurisdictional preconditions in section 375 is one way in which the Magistrates Court could be seized of jurisdiction to deal with a charge such as that brought against the defendant.
Insofar as summary/indictable matters are concerned, no express jurisdictional preconditions appear in either section 315A dealing with the conduct of an investigation into fitness to plead; or in section 315C dealing with what happens when a finding is made that the defendant is unfit to plead and unlikely to become fit to plead within the next 12 months. (To the extent that the latter distinguishes between the Supreme Court and the Magistrates Court, it does so only by way of referring to “a proceeding” in each of those courts.)
A significant difficulty in interpretation of Part 13 arises from what present as effectively jurisdictional preconditions which appear in sections 333 and 335(1). The sequence in which the sections appear in the Act suggests the application of such conditions in fitness to plead proceedings at the point in time of the conduct of a special hearing and after a defendant has been found unfit to plead.
The difficulty with interpreting the Act so as to apply the jurisdictional preconditions at that point in the proceedings is that after a defendant has been found unfit to plead, the Magistrates Court is given no power under the Act to do anything other than conduct a special hearing. There is, for example, no power to find a defendant unfit to plead and then commit the defendant to the Supreme Court.
If the jurisdictional preconditions imposed in section 333 and 335(1) are to be addressed only after the conduct of the fitness to plead investigation, the result is the risk of legislative lacunae. That is, if a defendant is found unfit to plead, but the jurisdictional preconditions are not satisfied, the court has no power to do anything.
Against that background the reference in section 314 to committal proceedings takes on a different significance.
I conclude that it is intended to draw attention, in effect, to whether the Magistrates Court is seized of jurisdiction. If the Court is seized of jurisdiction then a question of fitness to plead is to be reserved for investigation as provided for. If it is not then the proceedings are to be treated as committal proceedings and the question reserved for consideration by the Supreme Court if the Defendant is committed.
All of the above leads me to conclude that Part 13 is to be interpreted as requiring that the Magistrates Court be seized of jurisdiction, one way or another, before a fitness to plead investigation is undertaken.
Precisely how the jurisdictional preconditions in sections 333, 335 and 375 are to be read together may be important in some cases. For example if a defendant has at some stage given a valid consent for the purposes of section 375, or if a guardian has been appointed and he or she gives consent (and can validly do so) and the operation of section 375 is not impliedly excluded by section 333, then the Magistrates Court may be seized of jurisdiction even if it would otherwise be opposed by the prosecution under section 333.
I did, by way of email from my Associate dated 25 November 2013, invite submissions on the legal effect of what Mr Davies told the Court on 6 June 2013. The defence submissions in response did not expressly answer the question posed but given the timing of what took place I do not need to make a decision on the interaction between the relevant sections.
The jurisdictional preconditions under sections 333 and 335(1) were not addressed before the holding of the fitness to plead investigation. To the extent that Mr Davies’ notification to the Court on 6 June 2013 of the views of the defendant’s guardian might otherwise amount to consent to jurisdiction, that consent was not given until after the fitness to plead determination had been made. For the reasons given the proper interpretation of the Act requires the Court to be seized of jurisdiction before that determination was made.
All of the above leads me to conclude that, at the time of purporting to make the fitness to plead determination on 6 June 2013, the Court did not have power to do so.
The next question which arises is what flows from that conclusion.
To answer that question it is necessary to ask another – what manner of creature is a decision under section 315A that a defendant is fit or unfit unfit to plead? A short answer is that it is clearly a creature of statute but that is not of itself particularly helpful.
A decision that a defendant is fit or unfit to plead does not fall comfortably within what would usually be regarded as either a judgement or order of a court, despite the very broad way in which order is defined in the Court Procedure Rules 2006 (ACT). It is not the practice in the Magistrates Court for such a decision to be perfected by way of being filed or entered as an order or judgement in any formal sense.
The concept of “entry” of an order or judgement is important because the general rule is that, with limited exceptions, the court has no power to set aside or vary a judgement after it has been entered because of the public interest in the finality of litigation – see DJL v Central Authority (2000) 170 ALR 659 – and rule 1613 of the Court Procedure Rules applying to civil proceedings.
Section 312 of the Act provides that the question of a person’s fitness to plead is a question of fact to be determined on the balance of probabilities.
That finding then determines the statutory procedure which follows and what orders may or may not be made but the Act does not clothe the finding with the features of a formal declaration or order.
The finding of fact in this case – that the defendant was unfit to plead – was for the reasons given earlier, made without any power to do so.
The features of the statutory fitness to plead process – that is in particular the designation of the central question as being in effect a finding of fact, and the procedural scheme then provided for - lead me to the conclusion that the decision made in this case is not an order or judgement, that it is void as a matter of law (for want of jurisdiction) and that it is not necessary for the Court to re-open, amend or set aside any judgement or order to give effect to that conclusion.
It follows from that conclusion that either the prosecution or the defendant or indeed the Court of its own initiative may invoke afresh the fitness to plead investigation process as provided for in section 313.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 17 December 2013
Counsel for the Prosecution: Ms A Knibbs
Solicitor for the Prosecution: ACT Director of Public Prosecutions
Counsel for the Defendant: Mr M Toole
Solicitor for the Defendant: Legal Aid ACT
Date of hearing: 6 June 2013, 13 September 2013, 25 November 2013
Date of decision: 17 December 2013
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