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SM v The Queen

SM v The Queen

Case [2013] VSCA 342 28 November 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0168

SM
	v
THE QUEEN

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JUDGES	MAXWELL P, WEINBERG and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 October 2013
DATE OF JUDGMENT	28 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 342

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CRIMINAL LAW – Trial – Procedure – Special hearing – Mental impairment – Accused unfit to stand trial – Defence of mental impairment raised – Whether in special hearing judge alone can decide if defence made out – Empanelment of jury required – Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) Parts 2, 3 and 4.

PRACTICE AND PROCEDURE – Question of law reserved – Case stated – Criminal law – Special hearing – Mental impairment – Accused unfit to stand trial – Defence of mental impairment raised – Whether in special hearing judge alone can decide if defence made out – Empanelment of jury required – Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) Parts 2, 3 and 4 – Criminal Procedure Act 2009 (Vic) ss 302, 305.

WORDS AND PHRASES – ‘As nearly as possible’.

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APPEARANCES:	Counsel	Solicitors
For SM	Mr T Marsh with Ms P Murphy	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

Summary

This proceeding comes before the Court by way of the case stated procedure under pt 6.3 div 5 of the Criminal Procedure Act 2009 (Vic). It raises an important question of criminal procedure, which arises where an accused has been found to be unfit to stand trial and where it is agreed between prosecution and defence that the defence of mental impairment is available in relation to the offence charged.

The consequence of a jury finding that an accused is not fit to stand trial (and a finding by the judge that the accused is not likely to become fit within the next 12 months) is that the proceeding must be conducted as a ‘special hearing’ under pt 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the ‘CMI Act’). Part 4 of the CMI Act deals with the defence of mental impairment and makes provision, under s 21(4), for a trial judge ― rather than a jury ― to decide whether the defence is established, in circumstances where both prosecution and defence agree that it is. (I will refer to this as the ‘judge-alone procedure’.)

The question for consideration is whether the judge-alone procedure is available in a special hearing, as distinct from a trial. There has been a divergence of views on that question in the Trial Division of this Court. In a 2008 decision, Osborn J held that the procedure was available in a special hearing.[1] Earlier this year, Bell J came to the opposite conclusion.[2]
[1]DPP v CJC (2008) 21 VR 581.
[2]DPP v Watson [2013] VSC 245 (‘Watson’).

It was this division of opinion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SM v The Queen

Details

AGLC: SM v The Queen [2013] VSCA 342
Case: [2013] VSCA 342
Decision Date: 28 November 2013

CaseChat Overview and Summary

In the matter of SM versus The Queen, the Supreme Court of Victoria was tasked with addressing a critical issue regarding the trial procedure for an accused person who had raised a defence of mental impairment. The accused, SM, was unfit to stand trial, and the court needed to determine whether the judge presiding over the special hearing could decide alone if the defence of mental impairment was made out, or if the empanelment of a jury was required.

The legal issues that the court had to resolve centred on the interpretation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Criminal Procedure Act 2009 (Vic). Specifically, the court was asked to consider whether the judge could determine the fitness of the accused to stand trial without the involvement of a jury, or if a jury must be empanelled to make this determination. This question of law was reserved, and the case was stated to the Court of Appeal for its resolution.

The court's reasoning hinged on the interpretation of the phrase ‘as nearly as possible’ within the context of the relevant statutes. The Supreme Court held that the phrase indicated the need for a jury to be involved in the decision-making process, as it was not possible for the judge alone to determine the fitness of the accused to stand trial. Consequently, the court ruled that the judge could not decide alone on the defence of mental impairment and that a jury must be empanelled to make this determination.

The final orders of the court were that the question of law be reserved, and the case be stated to the Court of Appeal for its determination. This decision underscored the importance of involving a jury in the assessment of the accused's fitness to stand trial, in accordance with the relevant statutory provisions.

Orders