SM v The Queen

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 which prompted the judge in the present case to reserve the following question of law under s 302 of the Criminal Procedure Act 2009 (Vic):

Whether pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, following a jury determination that the accused is unfit to stand trial and where the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may, if satisfied that the evidence establishes the defence of mental impairment, direct that a verdict of not guilty because of mental impairment be recorded or whether it is necessary to empanel a jury to determine the verdict at a special hearing.

If I may say so respectfully, this is a very good example of the case stated procedure being used as Parliament intended it should be.

For reasons which follow, I have concluded that the question should be answered in the affirmative. That is, on its proper construction, the CMI Act discloses an intention that the procedure under s 21(4) be available in a special hearing, in the circumstances specified in the subsection.

Procedural background[3]

[3]What follows in [6]–[9] is based on the case stated.

SM[4] is charged on indictment with committing an indecent act with, or in the presence of, a child under 16, contrary to s 47 of the Crimes Act 1958 (Vic). SM was 15 years’ old at the time of the alleged offending. She is now 17. The complainant was five years’ old at the relevant time, and is now seven.
[4]The abbreviation is used to protect the identity of the accused.

Under s 7(3) of the CMI Act, the question of a person’s fitness to stand trial is a question of fact to be determined (on the balance of probabilities) ‘by a jury empanelled for that purpose’. On 3 September 2013, a jury was empanelled for the purpose of determining whether SM was fit to stand trial. Evidence was adduced that Dr Teresa Flower, consultant psychiatrist, and Dr Adam Deacon, consultant psychiatrist at Forensicare, were both of the opinion that SM was unfit to stand trial when considered against the criteria specified by s 6 of the CMI Act.[5] The undisputed evidence was that SM has an IQ of 43 and therefore has a moderate to severe intellectual disability.
[5]See [13]–[14] below.

The jury found that SM was not fit to stand trial. Pursuant to s 11(4)(a) of the CMI Act, the judge then found, by reference to the uncontested evidence and on the balance of probabilities, that SM would not become fit to stand trial within the next 12 months. That finding having been made, s 12(5) of the CMI Act required the Court to proceed to hold a special hearing under pt 3 of the Act within three months.

On the basis of further reports from Dr Flower and Dr Deacon, the prosecution and the defence are in agreement that the evidence which the experts would respectively give establishes that SM was mentally impaired at the time of the alleged offending. In other words, the parties agree that ‘the proposed evidence establishes the defence of mental impairment’, as contemplated by s 21(4) of the CMI Act. As already noted, the question for determination is whether the procedure provided for by that subsection is available in the special hearing which the Court must now conduct.

The statutory framework

As will already be apparent, this question arises because of the intersection in a case such as this of two separate aspects of the CMI Act, concerned respectively with unfitness to stand trial (pts 2 and 3) and the defence of mental impairment (pt 4). The key distinction between the two sets of provisions concerns the time to which the relevant investigation is directed. The question of fitness to stand trial is, of course, to be determined as at the date of the proposed trial. The defence of mental impairment, by contrast, concerns the time of the alleged offence.

Hence, s 20 of the CMI Act provides as follows:

20 Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that —
(a)he or she did not know the nature and quality of the conduct; or
(b)he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.[6]

[6]Emphasis added.

As counsel acknowledged in argument, the timing difference means that three possible situations may be imagined, as follows:

(a) the accused is unfit to stand trial but was not mentally impaired at the time of the conduct constituting the alleged offence;

(b) the accused is fit to stand trial but was suffering from a mental impairment at the time of the conduct in question; or

(c) the accused is not fit to be tried and was suffering from a mental impairment at the time of the relevant conduct.

In a case such as the present, where the accused has a significant intellectual disability, the same mental impairment typically requires consideration for both purposes and will typically mean that — as here — the case falls into the third of these categories.

The question of fitness to stand trial is to be determined in accordance with s 6 of the CMI Act, which provides as follows:

6 When is a person unfit to stand trial?
(1)A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be —
(a) unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)unable to give instructions to his or her legal practitioner.

(2)A person is not unfit to stand trial only because he or she is suffering from memory loss.

In the present case, this Court was told, both experts concluded that SM was unfit in each of the respects identified in paragraphs (a)–(f) of s 6(1). That is, her unfitness to stand trial was constituted in part by, but was not limited to, her inability to give instructions to her legal practitioner. As will appear, this is an aspect of unfitness to stand trial which was viewed by Bell J as being of particular significance to the question presently under consideration.[7]
[7]See [29] below.

Special hearing

A special hearing, unlike a trial, is wholly a creature of statute. The nature and purpose of such a hearing, and the procedure to be followed, are spelt out in pt 3 of the CMI Act. It is necessary to set out the relevant provisions at some length.

15       Purpose of special hearings
The purpose of a special hearing is to determine whether, on the evidence available, the accused —
(a)       is not guilty of the offence; or
(b)       is not guilty of the offence because of mental impairment; or
(c)committed the offence charged or an offence available as an alternative.

16 Procedure at special hearings
(1)A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

(2) Without limiting subsection (2), at a special hearing —
(a)the accused must be taken to have pleaded not guilty to the offence; and
(b)the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;
(c)the accused may raise any defence that could be raised if the special hearing were a criminal trial, including the defence of mental impairment;

(d) the rules of evidence apply;
(e)section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused) applies as if the special hearing were a criminal trial;
(f)any alternative verdict that would be available if the special hearing were a criminal trial is available to the jury.

(3)At the commencement of a special hearing, the judge must explain to the jury —
(a)that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and

(b)       the meaning of being unfit to stand trial; and
(c)       the purpose of the special hearing; and
(d)      the findings that are available; and
(e)       the standard of proof required for those findings.

17       Findings at special hearings
(1)       The following findings are available to the jury at a special hearing —
(a)       not guilty of the offence charged;
(b)       not guilty of the offence because of mental impairment;
(c)the accused committed the offence charged or an offence available as an alternative.

(2)To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative.

18 Effect of findings
(1)If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial.
(2)A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.

Note
Section 24AA provides for appeals against a verdict of not guilty because of mental impairment.
(3) A finding under section 17(1)(c) —
(a)constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and
(b)constitutes a bar to further prosecution in respect of the same circumstances; and
(c)is subject to appeal in the same manner as if the person had been convicted of the offence in a criminal trial.

(4) If a jury makes a finding under section 17(1)(c), the judge must —
(a) declare that the person is liable to supervision under Part 5; or
(b) order the person to be released unconditionally.

It is likewise necessary to set out in full ss 21 and 22 of the Act, which deal with the defence of mental impairment.

21 Presumptions, standard of proof, etc.
(1)A person is presumed not to have been suffering from a mental impairment having the effect referred to in section 20(1) until the contrary is proved.
(2)The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1) —
(a) is a question of fact; and
(b)subject to subsection (4), is to be determined by a jury on the balance of probabilities.

(3)If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.
(4)If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and —
(a)if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or
(b)if the trial judge is not so satisfied, must direct that the person be tried by a jury.

22 When may the question of mental impairment be raised?
(1)The question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution.
(2)If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled —
(a)the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and
(b)if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.

(3)An accused must not be discharged in a committal proceeding only because the defence of mental impairment has been raised.

As is made clear by ss 16(2)(c) and 17(1)(b), an accused who is unfit to stand trial may raise the defence of mental impairment at the special hearing. One of the findings available to the jury at a special hearing is a finding that the accused is not guilty of the offence because of mental impairment. It was, accordingly, common ground in this proceeding that some at least of the provisions of pt 4, dealing with the defence, must be incorporated by reference into pt 3, in order to provide the necessary machinery to enable that question to be decided at the special hearing. The debate between the parties concerned whether s 21(4) was, or was not, one of the provisions thus incorporated.

According to the submission for the Director, the relevant provisions demonstrated that the judge-alone procedure was not intended to be available at a special hearing. There were two parts of the submission, the first being that adjudication at a special hearing was a task committed by s 17(1) exclusively to a jury; the second was that, in any event, the language of s 21(4) made unambiguously clear that the procedure was to be available only at a trial properly so-called, not at a special hearing.

As to the first argument, it was pointed out that s 17 deals exhaustively with the findings available at a special hearing. Three are specified, one of which is a finding of not guilty because of mental impairment. In each case, the finding can only be made by a jury. There is no suggestion of the judge being authorised to make any such finding.

In support of the second argument, counsel for the Director drew attention to the repeated references in s 21(4) to the ‘trial judge’ and, in particular, to the language of s 21(4)(b), which provides that if the trial judge is not satisfied that the defence of mental impairment is made out, the judge ‘must direct that the person be tried by a jury’. This language demonstrates, so it is said, that the procedure could not apply to a special hearing since ex-hypothesi the accused is not fit to be ‘tried by a jury’, that being the very reason a special hearing is being held.

Were the statutory construction question confined to a consideration of the language of ss 17(1) and 21(4), I consider that there would be no answer to these arguments. Standing alone, the language of the subsections is intractable. I would reject the argument of counsel for SM that it is open to the Court, on ordinary principles of interpretation, to read into s 21(4) the additional words which would be needed in order to make the provision applicable to a special hearing.

It is quite clear — and counsel for SM did not dispute this — that a special hearing is not a trial. So much is apparent from the language of s 16(1), which requires that a special hearing be conducted ‘as nearly as possible as if it were a criminal trial’. (There are similar references in s 16(2)(c), (e) and (f).) When s 21(4)(b) refers to the person being ‘tried by a jury’, it means what is says. And, plainly enough, Parliament cannot have intended that a judge conducting a special hearing, itself necessitated by the accused’s inability to stand trial, could be obliged (if not satisfied about the defence of mental impairment) to direct that the accused ‘be tried by a jury’.

Of necessity, however, the interpretive task which the Court must undertake is not confined to an examination of the language of the subsections in isolation. On the contrary, the Court is obliged to interpret each provision in the context of the legislation as a whole. In the present case, there is a particular — and quite unusual — provision which I consider shows that the strictures which the literal language of s 21(4) imposes were not intended to prevent the procedure being used in a special hearing.

I refer to s 16(1), the relevant part of which provides:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial …[8]

Self-evidently, this is a legislative command expressed in very strong terms. The judge conducting a special hearing must strive to ensure that the conduct of the hearing bears the closest possible resemblance to the conduct of a criminal trial.

[8]Emphasis added.

The imperative force of the words ‘as nearly as possible’ is illustrated by what the High Court said in relation to the same phrase as it appears in s 64 of the Judiciary Act 1903 (Cth), which provides:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

In Commonwealth v Evans Deakin Industries Ltd,[9] the High Court said (referring to the Court’s previous decision in Maguire v Simpson[10]):
That case establishes that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory and otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. That result seems entirely just; the Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject.[11]

[9](1986) 161 CLR 254 (‘Evans’).

[10](1977) 139 CLR 362.

[11]Evans (1986) 161 CLR 254, 262–3 (emphasis added).

Adapting that language to this different statutory context, it follows, in my view, that all procedures which are applicable to a criminal trial must be treated as applicable to a special hearing ‘except where it is not possible’ for a procedure to be so applied. In this context, I consider, such ‘impossibility’ would only arise if the trial procedure in question were irreconcilable with an express provision of pt 3 or would otherwise be repugnant to the distinctive character and purpose of a special hearing as defined by pt 3.

The language of s 16(1) reveals, in my view, a clear legislative intention that the provisions of legislation enacted to govern trials — such as the Crimes (Criminal Trials) Act 1999 (Vic) and the Criminal Procedure Act 2009 (Vic) — are to be applied ‘as nearly as possible’ to a special hearing. Plainly, procedural provisions in legislation of that kind will be expressed — as s 21(4) is expressed — in language applicable to a criminal trial, and not to a special hearing. But the effect of the ‘as nearly as possible’ command in s 16(1) is that those procedures are to be treated as applicable to a special hearing, with whatever necessary adaptation or modification is required for that purpose.[12]
[12]The Latin phrase ‘mutatis mutandis’ captures this notion of a provision, enacted to address one set of circumstances, being applied to a different set of circumstances ‘with all necessary changes having been made’.

On this analysis, there is no difficulty in regarding the judge-alone procedure as available in a special hearing. The language of the subsection is readily adapted to that end. The only change which would be necessary is in the reading of s 21(4)(b). It would mean, in the context of a special hearing, that if the judge were not satisfied that the evidence established the defence of mental impairment, the judge would be obliged to proceed with the special hearing, and empanel a jury for the purpose of deciding the remaining questions under s 17(1), namely, whether the guilt of the accused was established or not. Plainly, there would be no procedural difficulty with that course.

It is said, however, that this result would be incompatible with the nature of a special hearing, at least in cases where the unfitness of the accused to stand trial was constituted, in whole or part, by the accused’s inability to give instructions to his/her counsel. It was this which prompted Bell J in Watson to say:

[I]t is a very serious thing to conclude that counsel can exercise decision‑making capacity on behalf of an accused without instructions, especially where the consequence would be that the accused would thereby lose the opportunity to test the prosecution case and obtain an acquittal. As I saw it, such an interpretation had to be made unmistakably clear by express words or necessary implication. The terms of s 24(1) did not seem to me to be unmistakably clear. The terms of s 24(1) are general and to be contrasted (for example) with the terms of s 16(2)(b), which expressly authorises the legal representative of the accused to exercise the rights of challenge of an accused in the selection of a jury in a hearing under pt 3.[13]

[13]Watson [2013] VSC 245, [9].

Counsel for SM addressed this issue in two ways. First, it was pointed out that inability to give instructions was only one of the enumerated indicia of the unfitness to plead. Whether an accused found to be unfit was, or was not, able to give instructions would vary from case to case. It followed that an inability to give instructions was not to be seen as a defining characteristic of a special hearing, and the question of the applicability of s 21(4) should not therefore be determined on the assumption that the accused would always lack that ability.

Secondly, it was submitted, the responsibility of counsel acting for a person who has been found — on whatever basis — to be unfit to stand trial is a particularly weighty one. The Court should proceed on the assumption that counsel who find themselves in that position take that responsibility very seriously. In particular, counsel would not give consent on behalf of their client to the judge-alone procedure unless it was perfectly clear that there was no defence to the charge on the merits and, likewise, that the medical evidence was unequivocal about the availability of the defence.

In my opinion, these submissions should be upheld. There is, in my opinion, no reason to doubt that a decision by counsel for an accused in such circumstances, to opt for the judge-alone procedure, will be made conscientiously and carefully and will, to the greatest extent possible, be based on consultation with the accused (and the accused’s family and/or advisors). It should also be emphasised that a decision to opt for this procedure does not involve the accused ‘losing the opportunity to test the prosecution case and obtain an acquittal’. As I have said, no counsel acting properly could agree to the judge-alone procedure without first being satisfied that there was no reasonable possibility of acquittal.

My conclusion regarding the construction of the provisions is reinforced by the legislative history, to which I now turn.

Legislative history

When the CMI Act was first enacted, it did not contain s 21(4) (or the qualification in s 21(2)). In its original form, s 21(2) provided simply that the question whether a person was suffering from a mental impairment at the time of the alleged conduct was ‘to be determined by a jury’. There was no exception allowing for a judge-alone determination. In this respect, s 21(2) mirrored s 7(3)(b) (in relation to fitness to stand trial).

The enactment of s 21(4) was effected by the Crimes (Homicide) Act 2005 (Vic). The Parliament adopted a recommendation of the Victorian Law Reform Commission, in its final Report on ‘Defences to Homicide’.[14] The relevant part of the Commission’s Report, which was helpfully provided to the Court by counsel for the Director, concluded that it was unnecessary to empanel a jury in order to decide the question of mental impairment in a case where there was no dispute between the parties or the experts. The Commission’s view was that:

Such a process only highlights the perfunctory nature of the process and adds to the perception that the role of the jury in such hearings is ceremonial only.[15]

[14]Victorian Law Reform Commission, Defences to Homicide, Final Report (October 2004).

[15]Ibid 230 [5.86].

At the same time, in the Commission’s view, there was a need for the evidence to be heard, and the decision made, in open court, but this could be met by having a hearing before a judge alone. The Commission said:

If the evidence supported a verdict of not guilty by reason of mental impairment, allowing the expert evidence to be heard before a jury is empanelled would allow it to be heard in an open court, and would allow the judge to determine that a jury trial was unnecessary because the court would accept the plea of not guilty by making a finding that the accused is not guilty of the offence because of mental impairment. If at any time the judge determined the matter would be more appropriately dealt with by a jury, he or she would be able to direct that the issue be dealt with by a jury.
Procedurally, this could happen by way of a hearing on the expert evidence

once a plea of not guilty by reason of mental impairment has been entered by the accused and the decision to go to trial has been made. Where the prosecution and the defence agree that the accused should be found not guilty by reason of mental impairment, a judge could hear the expert evidence in support of this finding. If the judge was satisfied, on the basis of this evidence, that it would not be possible for a jury to find the accused guilty of murder, then the judge would make a finding that the person is not guilty on the grounds of mental impairment and the disposition of the accused could then be determined without the need to empanel a jury. As would be the case for a jury trial, the hearing could be held in open court. In cases where the issue of mental impairment arises after the jury is empanelled and the trial has begun, the jury would determine the issue of whether the accused was mentally impaired.[16]

[16]Ibid 230–1 [5.89]–[5.90] (citation omitted).

Plainly enough, the Commission’s Report — and the Bill which followed — were concerned with, and only with, criminal trials and the availability of the defence of mental impairment in a criminal trial setting. There was no occasion for the Commission to consider whether the procedure which it was recommending would be suitable for a special hearing concerning a person who was unfit to stand trial.

The new sub-s 21(4) was inserted into pt 4 of the CMI Act, which likewise deals only with criminal trials. Hence the reference in s 22(1) to the raising of the question of mental impairment ‘at any time during a trial by the defence, or, with the leave of the trial judge, by the prosecution’.[17] Thus understood, s 21(4) is a procedural provision intended to govern criminal trials. It has the same character as other procedures enacted for, and only for, criminal trials. As explained earlier, however, it is provisions of that character which the judge conducting a special hearing is required — in accordance with s 16(1) — to apply ‘as nearly as possible’ to the special hearing.
[17]Emphasis added.

WEINBERG JA:

I have had the considerable advantage, in this case, of reading in draft the reasons for judgment prepared by the President and by Tate JA. Regrettably, their

Honours are unable to agree upon the outcome of this proceeding. The President has concluded that a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the ‘CMI Act’) is capable of being conducted before a judge alone. Tate JA has arrived at the opposite conclusion.

It therefore falls to me, at least practically speaking, to resolve this issue.

General principles of statutory interpretation

Questions of statutory interpretation abound in modern litigation, and often give rise to difficulty. Yet there is usually a clear path to resolution once the High Court’s strictures as to how to perform the interpretative task are followed.

Writing extra-judicially, the former Chief Justice of New South Wales, the Honourable James Spigelman, described statutory interpretation as a ‘constant wrestle with text and context’,[18] adding that the application of the principles of statutory interpretation is always a ‘matter of emphasis and nuance’.[19]
[18]The Hon J J Spigelman AC, ‘The intolerable wrestle: Developments in statutory interpretation’ (2010) 84 ALJ 822.
[19]Ibid.

Chief Justice Spigelman analysed recent High Court authority on statutory interpretation as the theme for his paper. He concluded that throughout the period from about 1987 until the end of the 1990s,[20] the High Court had increasingly adopted a ‘contextual’ or ‘purposive’ approach to statutory interpretation. This contrasted with the narrowly based ‘strict literalism’ that had once prevailed. He referred, in particular, to two decisions of the Court, CIC Insurance Ltd v Bankstown Football Club Ltd[21] and Project Blue Sky Inc v Australian Broadcasting Authority[22] which he saw as exemplifying that purposive approach.
[20]This period largely corresponded with what some have described as the ‘Mason Court’, Sir Anthony Mason having been Chief Justice of Australia between 1987 and 1995.
[21](1997) 187 CLR 384.
[22](1998) 194 CLR 35.

Plainly, Chief Justice Spigelman was attracted to this broader, more flexible method of statutory interpretation. He cited, with apparent approval, the following well known observation by Judge Learned Hand:

Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, sources of interpreting the meaning of any writing; be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.[23]

[23]Cabell v Markham 148 F 2d 737, 739 (2d Cir 1945).

The former Chief Justice even permitted himself what he described as ‘the indulgence of self-quotation’, repeating his earlier observation that ‘the courts no longer approach a statute with scissors in one hand and a dictionary in the other’.[24] No doubt, he would be receptive to a recent comment by Judge Richard Posner who, in one of the latest of his many books, said:

Interpretation is a natural mental activity. It is also ubiquitous. It is not improved by rules of interpretation. Literature professors and literary critics address daunting problems of interpretation in classics of literary modernism without the benefit of canons of construction. Does anyone think they are worse at interpreting difficult texts than judges are?[25]

[24]R v Campbell (2008) 73 NSWLR 272, [49].

[25]Richard A Posner, Reflections on Judging (Harvard University Press, 2013) 231–2.

The point of Chief Justice Spigelman’s paper was to consider whether there had been a shift, in recent years, within the High Court, towards a narrower and more strict literalism, in dealing with statutory interpretation.

The view that the Court had moved in that direction seems to have been espoused by Kirby J who, in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council[26] observed, in relation to the views of the majority in that case:

I see … hints of a return to the literal interpretation of legislation which this court has (in my view rightly) earlier discarded … I would resist any return to that earlier narrowing of the judicial focus.[27]

[26](2008) 237 CLR 285.

[27]Ibid 289 [7].

Yet, as Chief Justice Spigelman noted, Kirby J’s lament may perhaps have been an overstatement. Even his Honour, with his characteristically assertive views on all manner of subjects, fully recognised that the task of statutory interpretation sometimes compelled a result that was unattractive, and possibly difficult to reconcile with the clear legislative purpose underlying the Act under consideration.

Nonetheless, it is true that the High Court, in a number of recent judgments, appears to have given greater primacy to the actual language used in the text than to contextual matters.[28]
[28]See for example Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 77 [9]; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, 206 [30]; Carr v Western Australia (2007) 232 CLR 138, 143 [6] and Northern Territory v Collins (2008) 235 CLR 619, 642 [99].

Perhaps the clearest example of this ‘reversion to text’ is to be found in a short passage in the joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory).[29]There it was said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[30]

[29](2009) 239 CLR 27 (‘Alcan’).

[30]Ibid 46–7 [47] (citations omitted). A passage to the same effect is to be found in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265–6 [33]–[34].

In Baini v The Queen[31] the High Court made essentially the same point. It reiterated what had earlier been said in Fleming v The Queen[32] to the effect that:

‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘[t]here is no substitute for giving attention to the precise terms’ in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute.[33]

[31](2012) 246 CLR 469.

[32](1998) 197 CLR 250.

[33](2012) 246 CLR 469, 476 [14].

More recently still, in Certain Lloyd’s Underwriters v Cross[34] French CJ and Hayne J said of what is generally described as the ‘purposive approach’:
[34](2012) 293 ALR 412.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. [Emphasis added.] And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

To similar effect, the majority in Lacey said:
Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.[35]

[35]Ibid 419–20 (citations omitted).

Their Honours went on to say:

A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. [Emphasis added.]

And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.[36]

[36]Ibid 420 (citations omitted).

In Lee v New South Wales Crimes Commission,[37] French CJ said of the process of statutory interpretation:

What Mason CJ said in Hamilton concerning ‘a clear legislative intention’ should be understood today in light of the court’s consideration of the concept of legislative intention in Project Blue Sky Inc v Australian Broadcasting Authority and, more recently, in Lacey v Attorney-General (Qld). In Project Blue Sky the majority framed the object of statutory interpretation as ‘giv[ing] the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. One of the canons of construction identified by the majority was the principle of legality. In Lacey the court held that the ascertainment of legislative intention does not involve discovery of an objective, collective mental state but is asserted as a statement of compliance with the applicable principles of construction, both common law and statutory, which are known to parliamentary drafters and the courts. Identification of statutory purpose, a concept which is not logically congruent with that of legislative intention, although the two may coincide, is involved in the process of construction. As the majority observed in Lacey, statutory purpose:
…may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.[38]

[37](2013) 302 ALR 363.

[38]Ibid 387 (citations omitted).

The fact that the High Court now regularly reminds courts that the process of statutory interpretation requires them to focus first upon the structure and text of the Act, and to move to broader contextual matters only at a later stage, most definitely does not mean that these ‘purposive’ considerations can be ignored. However, the emphasis in statutory interpretation does seem, in recent times, to have shifted somewhat. It might be said that the current approach to the interpretative task requires courts to both begin and end with the text. That is, of course, always bearing in mind that any provision must be read in context, and against the background of the Act as a whole.

Legislative history can, in some cases, shed light upon the meaning of particular provisions that might otherwise be problematic. So too, can reference to extrinsic materials, in accordance with the requirements of s 35 of the Interpretation of Legislation Act 1984. So far as I can ascertain, neither legislative history, nor extrinsic materials, provide any useful assistance in determining the issue before the Court in this case.

It is with these principles in mind that I now turn to consider the particular question of construction that arises in the case stated.

The relevant legislative regime

Several things can immediately be noted. As is now customary, the CMI Act contains what might be described as an ‘objects clause’. Section 1 provides as follows:

The purposes of the Act are―
(a) to define the criteria for determining if a person is unfit to stand trial;
(b) to replace the common law defence of insanity with a statutory defence of mental impairment;
(c) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

Part 3 of the CMI Act is headed ‘Special Hearings’. It links back to pt 2 (which is headed ‘Unfitness to Stand Trial’), and particularly ss 6 and 7 within pt 2.

Section 6 defines when a person is unfit to stand trial. Section 7 creates a statutory presumption in favour of being fit to stand trial and also establishes that the question of fitness is one of fact, which is to be determined on the balance of probabilities. The onus rests on the party seeking to rebut the presumption.

Part 3 sets out the new procedures established under the CMI Act for dealing with persons unfit to stand trial. Putting to one side ss 6 and 7, to which I have just referred, pt 3 contains the only provisions within the CMI Act that are directed specifically to the issue of fitness to stand trial and, in particular, the manner in which special hearings are to be conducted.

Part 4, which is headed ‘Defence of Mental Impairment’, is plainly intended to deal with the second of the three purposes stated in s 1, namely the replacement of the common law defence of insanity with a new statutory defence of mental impairment.

The first thing to note about the CMI Act is that there is obviously a degree of overlap between pts 3 and 4. Section 20(1), which falls within pt 4, defines the defence of mental impairment. Without that definition, the many references to mental impairment in pt 3 would be entirely devoid of content.

The question that must be determined is, what is the extent of that overlap? In my view, the answer to that question is that the extent of the overlap is quite limited.

To illustrate the point, s 21, which appears under the heading ‘Presumptions, standard of proof, etc.’, should be closely examined. Subsection (1) provides that a person is presumed not to have been suffering from mental impairment until the contrary is proved. Subsection (2) makes it clear that the question whether a person was suffering from a mental impairment at the time of the alleged offending is (a) a question of fact; and (b) subject to sub-s (4), is to be determined by a jury on the balance of probabilities. Subsection (3) casts the onus of proof in relation to rebutting that presumption upon the party raising the defence of mental impairment. Finally, and most importantly for present purposes, sub-s (4) makes provision for trial by judge alone in the circumstances therein set out. Thus, if a person is charged with an indictable offence, and before the empanelment of a jury, the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and, if satisfied that it establishes that defence, direct a verdict of not guilty because of mental impairment. If not so satisfied, the trial judge must direct that the person be tried by a jury.

Self-evidently, each of the matters dealt with in s 21, is, in explicit terms, applicable only where there is a ‘trial’, and the defence of mental impairment is raised. The question to be determined in this proceeding is whether, notwithstanding the language used in that section, it can properly be construed to enable the judge alone procedure to be used in relation to a special hearing. Self-evidently, any construction that leads to that result will require a certain amount of judicial licence through some form of implication.

In that regard, it is important to note that s 7 of the CMI Act deals with procedural matters in relation to questions of fitness to stand trial, and is obviously linked, in that sense, to special hearings. Such a hearing will be conducted only if a jury, empanelled for that purpose, has found such unfitness. The language of s 7 is closely analogous to that utilised in s 21. Indeed, the heading immediately above s 7 is identical to that which appears above s 21.

Had the legislature intended to allow a special hearing to be conducted before a judge alone (without the need to empanel a jury) it could easily have made that position clear. It would only have been necessary to deal with the matters currently dealt with under ss 7 and 21, as well as procedural issues arising in special hearings, within the one section. That would have ensured that the issue of fitness to stand trial, the outcome of a special hearing and the defence of mental impairment could all be dealt with using essentially the same procedures.

Yet the legislature chose to use s 7 for the purpose of specifying the procedures to be followed when dealing with fitness to stand trial, and s 21 for the purpose of doing so when dealing with the defence of mental impairment. In addition, s 17(2), which is concerned with the standard of proof in relation to a finding under s 17(1)(c) that the accused committed the offence charged or an offence available as an alternative, makes it clear that, unlike the standard of proof that applies on fitness to plead, the jury must be satisfied beyond reasonable doubt if it is to make such a finding. That, of itself, provides some support for the view that the legislature intended to keep quite separate the procedure applicable under pts 3 and 4.

It is important to note that the procedural requirements set out in s 21(4) (which is the pivotal provision so far as this particular proceeding is concerned) are preceded by a series of related requirements, all of which are, self-evidently, applicable to trials at which the defence of mental impairment is raised. None of these provisions have any apparent application to the entirely distinct procedures associated with special hearings.

Secondly, pt 3 itself is replete with references to the jury as the body chosen by the legislature to determine whether an accused is to be found not guilty of the offence charged (s 15(a)), found not guilty because of mental impairment (s 15(b)) or found to have committed the offence charged or an offence available as an alternative (s 15(c)). More particularly, the jury is expressly designated as the trier of fact in relation to a special hearing in ss 16(1), 16(2)(b), 16(2)(f), 16(3), 17(1), 17(2), 18(1) and 18(4).

Thirdly, it must be remembered that the question before this Court is not whether there is any overlap at all between pts 3 and 4. Plainly, as I have earlier indicated, some such overlap does exist. Rather, the interpretative issue to be resolved is whether s 21(4), on its proper construction, allows for a special hearing to be conducted before a judge alone, despite the fact that a special hearing is not a trial. If that construction is to prevail, it must do so in the face of the actual terms employed in the section.

Fourthly, a question arises as to whether s 16(1), which provides that a special hearing is to be conducted ‘as nearly as possible as if it were a criminal trial’, has the effect of converting s 21(4) into a provision that allows for a judge alone special hearing. In that regard, I repeat that a special hearing, whatever else it may be, is most definitely not a trial. Section 16(1) makes that abundantly plain. In those circumstances, the question is, can s 21(4) be so liberally construed as to enable it to give effect to what might be regarded as sound policy?

In posing that particular question, it should be remembered that the High Court in Alcan cautioned that fixing upon a particular general legislative purpose carries with it the danger that the text will not receive the attention it deserves.[39] I would add that there is by no means likely to be consensus as to whether it is desirable, from a policy perspective, to have special hearings conducted without juries.
[39](2009) 239 CLR 27, 47 [51]. The Court referred with approval to the observations of Gleeson CJ in Carr v Western Australia (2007) 232 CLR 138, 143 [6] to the same effect.

Fifthly, and closely related to that fourth point, assuming that a special hearing cannot readily be described as a ‘trial’, is it even conceivable that any judge who presides over such a hearing can properly be described as a ‘trial judge’?

Sixthly, does the fact that it is impossible to make sense of some of the provisions within pt 3 without having recourse to s 20 (which is itself within pt 4) mean that pts 3 and 4 are to be read as though they are, in effect, largely interchangeable?

It is evident from this brief summary of some of the key features associated with the structure and text of the CMI Act, and also from a number of the questions posed, that I agree with Tate JA as to how this case should be resolved.

Section 16(1) analysis

In his reasons for judgment, the President observes that it is common ground between the parties that at least some of what is contained within pt 4 must, almost by definition, be ‘incorporated by reference’ into pt 3. That is indeed so. However, for the reasons that I have earlier outlined, and with respect, putting the matter that way does not, of itself, greatly assist in resolving the construction issue before this Court.

The President goes on to say that such ‘incorporation by reference’ must be accepted in order to provide the ‘necessary machinery’ to enable the special hearing to achieve its stated statutory purpose.[40] Indeed, his Honour pithily identifies the central issue in this case as being ‘whether s 21(4) was, or was not, one of the provisions thus incorporated’.[41] I agree, of course, that that is indeed the central issue in this case.
[40]President’s reasons [17].
[41]Ibid.

I note, as does the President, that the submission put forward on behalf of the Director contains two parts. The first is that adjudication at a special hearing is a task committed by s 17(1) exclusively to a jury. The second is that the language of s 21(4) makes it unambiguously clear that the procedure for a judge alone trial is to be available only at a trial, properly so called. Self-evidently, the Director submits, this does not include a special hearing.

Having analysed in some detail a number of the textual arguments upon which the Director relies, the President comments:

Were the statutory construction question confined to a consideration of the language of s 17(1) and s 21(4), I consider that there would be no answer to these arguments. Standing alone, the language of the subsections is intractable. I would reject the argument of counsel for SM that it is open to the Court, on ordinary principles of interpretation, to read into s 21(4) the additional words which would be needed in order to make the provision applicable to a special hearing. [42]

[42]Ibid [21].

The President’s summary of the position provides a clear, and eloquent statement of precisely why, in my view, the judge alone procedure in s 21(4) cannot be invoked in relation to a special hearing. The structure and text of the CMI Act are, in truth, intractably against any such interpretation. It is only by recourse to s 16(1), that the President is able to overcome what he accepts would otherwise be the ‘intractable’ language that appears to support the Director’s position.

The President’s analysis is of course forceful and well-reasoned. Nonetheless, having given this matter careful consideration, and having weighed for myself the competing views regarding the proper interpretation of s 21(4), I find myself unable to accept his conclusion.

It must be remembered that s 16(1), which forms the basis of the President’s analysis, is in the following terms:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

Section 16(1) cannot, of course, be read in isolation. The subsection forms but one component of a series of provisions, all of them within the section itself, which are procedural in nature and clearly predicated upon a special hearing being conducted before a jury. If, as the President concludes, s 21(4), when read in conjunction with s 16(1), does allow for a judge alone special hearing, the result would be that almost the whole of s 16 would have to be put to one side in such a case, or at the very least, significantly ‘re-written’.

It is of course entirely legitimate in appropriate cases to fill in gaps in the textual detail of particular provisions, in accordance with basic canons of construction. For example, sometimes the draftsman’s desire to compress language leads to the omission of necessary words which, in order to make sense of the provision, must be ‘read in’ as part of the process of statutory interpretation.

However, it is one thing to avoid a strained, or possibly even absurd construction by reading into a section words which are not there. It is quite another to treat words that have been specifically included within the text as though they were mere surplusage, to be discarded if inconvenient, or thought to be contrary to the general policy underlying the Act being construed.

On the assumption that the legislature does not normally use language that is superfluous, the Court will generally endeavour to give significance to every word contained within the section being construed. It is presumed that if a word or phrase appears, it was put there for a purpose, and is not to be disregarded.[43]
[43]Albert v Lavin [1982] AC 546, 561; A-G’s Reference (No 1 of 1975) [1975] QB 773, 778; R v Millward [1985] QB 519. See also F Bennion, Bennion on Statutory Interpretation (LexisNexis, 5^thed, 2008) 1157–8. There are, of course, exceptions. For example, the word ‘corruptly’ which appears in s 314 of the Crimes Act 1958, the offence of statutory perjury, seems to have no work to do, and to be nothing more than a relic of historical learning.

The word ‘trial’ in s 21(4) cannot, in my view, be discounted simply on the basis that s 16(1) provides that a special hearing is to be conducted as ‘nearly as possible’ as if it were a criminal trial. That would be to give s 16(1) more work to do than the legislature could ever have intended. It would be to attribute to the Parliament an intent to bring about an almost revolutionary change to the procedure stipulated for special hearings in pt 3 by something akin to a mere ‘side wind’.

I note, for the sake of completeness, that s 16 itself is headed ‘Procedure at special hearings’. Section 36 of the Interpretation of Legislation Act1984 provides that headings form part of the Act in which they appear, and regard may be had to them when engaged in the process of statutory interpretation. The heading above s 16 suggests that what follows represents, exhaustively, a statement of the procedure to be applied in the course of a special hearing. It does not naturally suggest that what follows thereafter is merely one aspect of various procedures that may, at the option of the parties, be available.

Moreover, and to the same effect, I would add that the heading immediately above s 21, ‘Presumptions, standard of proof, etc.’, does not, of itself, suggest any wider application of s 21(4) than that which the language thereafter employed naturally conveys.

Conclusion

In arriving at my conclusion that a special hearing under the CMI Act requires the empanelment of a jury, I would not wish to be misunderstood. It seems to me to be perfectly arguable, as a matter of policy, that where otherwise appropriate, the option of a judge alone hearing should be available in such cases.

I appreciate the force of Bell J’s concern, in his Honour’s recent decision in DPP v Watson,[44] that a person who has been found unfit to plead may not be in a position to give instructions to his or her counsel as to whether to consent to a judge alone hearing (still less whether to concede the facts that give rise to a finding under s 15(b) of not guilty because of mental impairment). That is undoubtedly an important policy consideration in favour of retaining juries for special hearings. It must be balanced against the desirability of introducing greater flexibility into the procedures available for determining such matters. However, the balancing exercise seems to me to be one that should be undertaken by the legislature, and not by the courts.
[44][2013] VSC 245, [3].

For the reasons set out above, I would answer the question posed in the case stated in the negative, as proposed by Tate JA.

TATE JA:

Introduction

SM was charged with committing an indecent act with or in the presence of a child contrary to s 47 of the Crimes Act 1958. At the time of the alleged offending SM was 15 and the complainant was five years old. SM was found unfit to stand trial by a jury empanelled for that purpose. A judge of the County Court found that SM would not become fit to stand trial within the next 12 months. The undisputed evidence was that SM has an IQ of 43 and a moderate to severe intellectual disability. The prosecution and the defence agreed that the evidence established that SM was mentally impaired at the time of the alleged offending. The issue arose as to whether the judge, sitting alone, could determine that the defence of mental impairment was made out and record a verdict of ‘not guilty because of mental impairment’ or whether it was necessary to empanel a second jury to determine the verdict at a special hearing.

Against a background of conflicting authority, the judge reserved the following question of law to this Court for determination:[45]

Whether pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, following a jury determination that the accused is unfit to stand trial and where the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may, if satisfied that the evidence establishes the defence of mental impairment, direct that a verdict of not guilty because of mental impairment be recorded or whether it is necessary to empanel a jury to determine the verdict at a special hearing.

[45]Pursuant to s 302 of the Criminal Procedure Act 2009.

For the reasons that follow, I would answer the question in the negative; it will thus be necessary for the judge to empanel a jury to conduct a special hearing. In my view, the Crimes (Mental Impairment and Unfitness to be Tried) Act (‘the Act’) provides that, when an accused has been found unfit to stand trial, the defence of mental impairment, if raised, must be determined at a special hearing by a jury. I do not consider that a judge alone can determine that defence, or record a verdict of ‘not guilty because of mental impairment’, in relation to an accused who is unfit to stand trial.

I consider that it is a matter for the Legislature to determine whether the Act should be amended to confer the relevant power upon a judge alone.

The statutory scheme

The purposes of the Act are:[46]
[46]The Act, s 1.

(1) to define the criteria for determining if a person is unfit to stand trial;

(2) to replace the common law defence of insanity with a statutory defence of mental impairment;

(3) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

The third of the purposes identified indicates that the procedures for dealing with people who are unfit to stand trial because of mental impairment are all created by the Act.

Under the Act a person is presumed fit to stand trial.[47] The presumption is rebutted only if it is established, on an investigation under Pt 2 of the Act, that the person is unfit to stand trial.[48] Whether a person is unfit to stand trial is a question of fact.[49] Under Pt 2 the question of whether a person is unfit to stand trial is to be determined by a jury empanelled solely to answer that question. This is provided for in s 7(3):

The question of a person’s fitness to stand trial –
(a) is a question of fact; and
(b)is to be determined on the balance of probabilities by a jury empanelled for that purpose.

[47]Section 7(1).

[48]Section 7(2).

[49]Section 7(3).

The prosecution, defence, or the trial judge may raise the question of a person’s fitness.[50] At any time after an indictment has been filed if it appears to the court that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve that question for investigation under Pt 2.[51] Similar considerations apply during a trial.[52] The court may grant the accused bail during the investigation or order that the accused be remanded in custody.[53]
[50]Sub-sections (4) and (5) of s 7.
[51]Section 9(1).
[52]Section 9(2).
[53]Section 10.

If the question of whether a person is unfit to stand trial arises in a committal proceeding for an indictable offence, the Act provides for a two-stage procedure: first, the question is reserved for consideration by the trial judge who will determine ‘whether there is a real and substantial question as to the fitness of the accused to stand trial’ and, secondly, if the judge does so determine, he or she must direct that an investigation be held under pt 2 by a jury empanelled for that purpose.[54]
[54]Section 8.

The provisions of the Juries Act 2000 apply to an investigation of whether an accused is unfit to stand trial ‘as if the investigation were a criminal trial’.[55] At the commencement of the investigation, the judge must explain to the jury the reasons for the investigation; the findings which may be made; and the standard of proof required.[56]
[55]Section 11(2).
[56]Section 11(3).

In investigating the question of whether a person is unfit to stand trial, the jury will determine whether any one of the indicia specified in s 6 has been made out. The jury may be satisfied that more than one indicia is applicable. Section 6(1) provides:

A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be –
(a) unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

In the investigation into whether SM was unfit to stand trial, evidence was given by two consultant psychiatrists, Dr Teresa Flower and Dr Adam Deacon, that, in their opinion, SM was unfit to stand trial when considered against every criterion specified by s 6.

The role of the judge, upon a finding by the jury that the accused is unfit to stand trial, is to determine whether the accused is likely to become fit to stand trial within the next 12 months.[57] The finding is to be made on the balance of probabilities.[58] Here, the judge determined, as mentioned above, that SM would not become fit to stand trial within the next 12 months.
[57]Section 11(4)(a).
[58]Ibid.

Section 12 governs what happens after an investigation and provides, under s 12(5), that if an accused is found unfit to stand trial a ‘special hearing’ must be conducted under Pt 3 within three months:

(1)If the jury finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.

…
(5) If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing under Part 3 within 3 months.[59]

[59]Emphasis added.

It is clear from the language of s 12(5) that it is mandatory for a special hearing to be held for those persons who are not fit, and unlikely to become fit, to stand trial. Moreover, s 12(5) imposes an express time limitation within which the special hearing must be held. There is no provision for an extension of time.

The difference in the language of s 12(1) and s 12(5) indicates that there is a comparison to be drawn between a trial conducted in accordance with usual criminal procedures and a special hearing. There is a negative implication, namely, that a person who is unfit to stand trial is not to be tried in accordance with usual criminal procedures, at least not wholly so.[60]
[60]See s 16(1) discussed below.

Part 3 of the Act governs the conduct of special hearings. A special hearing is defined as ‘a hearing under Part 3’.[61] Its purpose is not the conventional one associated with a criminal trial, namely, to determine whether the accused is guilty of the offence charged. Indeed, it does not permit a verdict of guilty to be given. Rather, its purpose is to determine whether the accused (1) is not guilty of the offence; or (2) is not guilty of the offence because of mental impairment; or (3) committed the offence charged or an offence available as an alternative. This is apparent from s 15:

The purpose of a special hearing is to determine whether, on the evidence available, the accused:
(a) is not guilty of the offence; or
(b) is not guilty of the offence because of mental impairment; or
(c)committed the offence charged or an offence available as an alternative.[62]

[61]Section 3(1).

[62]Emphasis added.

Section 15 suggests that a special hearing is directed to a single purpose: namely, the determination of which of the three alternatives identified is made out. This is reinforced by s 16(3)(c), which requires a judge to explain to the jury at the commencement of the special hearing ‘the purpose’ of the special hearing.[63] It also suggests that at any special hearing the three alternatives must be potentially available, depending on the evidence. From this one might infer that the body entrusted with determining whether one of those alternatives is made out must also be entrusted with determining the fate of the other alternatives. This would imply that the only fact-finding body relevant to a special hearing is one capable of making all (or any) of the three alternative determinations. The significance of this feature of the statutory scheme is discussed below.
[63]See [115] below.

To facilitate its purpose, a special hearing enables findings to be made, consistent with the three alternatives identified in s 15, which are quite distinct from those available in an ordinary criminal trial. As mentioned, it does not permit a verdict of guilty to be given but at most permits a finding that the accused has ‘committed the offence charged’, or committed an offence available as an alternative, which may lead to an order for supervision or unconditional release[64] but not imprisonment. It also enables a finding to be given that the accused is ‘not guilty of the offence because of mental impairment’ or simply ‘not guilty’. Section 17 provides that these are findings which are available to the jury at a special hearing:

(1)       The following findings are available to the jury at a special hearing –
(a)       not guilty of the offence charged;
(b)       not guilty of the offence because of mental impairment;
(c)       the accused committed the offence charged or an offence           available as an alternative.[65]

[64]Section 18(4). The unconditional release is dependent upon the obtaining of appropriate medical or psychological reports: see s 40(2).

[65]Emphasis added.

If the jury is to return a verdict under s 17(1)(c) it must apply the ordinary criminal standard of beyond reasonable doubt. Section 17(2) provides:

To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative.

It is necessary for the judge, at the commencement of the special hearing, to explain to the jury, amongst other things, what it is for an accused to be unfit to stand trial and what findings are available to it. Section 16(3) provides:

At the commencement of a special hearing, the judge must explain to the jury –
(a)that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and

(b)       the meaning of being unfit to stand trial; and
(c)       the purpose of the special hearing; and
(d)      the findings that are available; and
(e)       the standard of proof required for those findings.[66]

[66]Emphasis added. For a discussion by the High Court of these type of directions, see Subramaniam v The Queen (2004) 211 ALR 1.

This is a further indication that a special hearing consists in an investigation before a jury.

Section 16(2) describes the general conduct of a special hearing including the right to challenge jurors and the availability of alternative verdicts to the jury:

Without limiting subsection (2),[67] at a special hearing –
[67]These are the terms in which the section is drafted. In DPP v CJC (2008) 21 VR 581, Osborn J held that the commencing words of sub-s (2) ‘Without limiting sub-section (2)’ are anomalous and it was rather intended to state, ‘Without limiting sub-section (1)’ but he said this was not necessary to his conclusion that a judge alone could determine, with respect to a person who has been found unfit to plead, that he or she was not guilty because of mental impairment. However, he said that it indicated that neither Pt 3 nor Pt 4 are to be regarded as expressed with complete clarity and precision (at 587, [43]).
(a)the accused must be taken to have pleaded not guilty to the offence; and
(b)the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;
(c)the accused may raise any defence that could be raised if the special hearing were a criminal trial, including the defence of mental impairment;

(d) the rules of evidence apply;
(e)section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused) applies as if the special hearing were a criminal trial;
(f)any alternative verdict that would be available if the special hearing were a criminal trial is available to the jury.[68]

[68]Emphasis added.

In this context, s 16(1) provides for the conduct of a special hearing to be as nearly as possible that of a criminal trial, thereby expressly attracting the application of the Juries Act:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

This is reflected in s 3 of the Juries Act which defines ‘criminal trial’ to mean:

trial on indictment for an indictable offence or the trial of an issue by a court sitting in the exercise of a criminal jurisdiction and includes an investigation and a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Accordingly, all the provisions in relation to liability for jury service, jury districts and jury rolls, summoning of jurors, jury panels, peremptory challenges and challenges for cause, remuneration and allowance for jurors, and offences by jurors apply to special hearings.

Section 18 of the Act indicates the effect of the findings made at a special hearing. A finding by a jury that the accused is not guilty of the offence charged (under s 17(1)(a)) is to be treated as if it were a finding of not guilty at a criminal trial, for all purposes. A finding of ‘not guilty because of mental impairment’ (under s 17(1)(b)) is to be treated as if that were the verdict at a criminal trial. A finding by a jury that the accused committed the offence (under s 17(1)(c)) is a qualified finding of guilt that bars further prosecutions.

18 Effect of findings
(1)If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial.
(2)A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.

(3) A finding under section 17(1)(c) –
(a)constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and
(b)constitutes a bar to further prosecution in respect of the same circumstances; and
(c)is subject to appeal in the same manner as if the person had been convicted of the offence in a criminal trial.

(4) If a jury makes a finding under section 17(1)(c), the judge must –
(a) declare that the person is liable to supervision under Part 5; or
(b) order the person to be released unconditionally.[69]

[69]Emphasis added.

It is noteworthy that two of the potential findings, the finding of not guilty and the finding that the accused has committed the offence, make express reference to their having been made by a jury in a manner that suggests this is the only way the finding can be made.

There is provision for the DPP to appeal against a verdict of ‘not guilty because of mental impairment’, pursuant to s 24AA.[70] It is cast in terms that also suggest that this verdict, the third of the alternative findings that can be made in a special hearing pursuant to s 17(1), is a matter that is determined by a jury. Section 24AA relevantly provides:
[70]Section 24AA is included within Pt 4 of the Act.

(1)In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.

…
(4)On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfied the court that –
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as a result of an error or irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.[71]

[71]Emphasis added.

There is no equivalent provision in the Act that provides for an appeal to the Court of Appeal from a finding by a judge alone that a person is not guilty because of mental impairment.[72]
[72]This is not to suggest that no appeal would be available as an appeal could presumably be brought pursuant to the County Court Act 1958 or the Supreme Court Act 1986 in accordance with the appropriate rules of court. The point is rather that there is no provision for such an appeal under the Act and that this is another of the indicia that the Act does not contemplate that a special hearing will be conducted by a judge alone.

The defence of mental impairment is governed by Pt 4 of the Act. Section 20(1) prescribes what relevantly amounts to mental impairment:

The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that –
(a) he or she did not know the nature and quality of the conduct; or
(b)he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

Section 20(2) stipulates that ‘if the defence of mental impairment is established, the person must be found not guilty because of mental impairment’.

Moreover, SM submitted, it is not possible to know, in any given case, of which specific criteria the jury was satisfied. A finding of unfitness is not particularised (unless the issue has been confined to a specific criterion such as an inability to follow the course of the trial). Even where evidence has been presented in respect of each of the criteria, the jury do not return a verdict that particularises their finding but only make an overall finding of unfitness.

Furthermore, it was submitted, the approach of Bell J could lead to a fundamental injustice in those instances where an accused is unfit to stand trial but is nevertheless able to instruct counsel to consent to a judge alone making a determination under s 21(4). Bell J’s approach would mean that the accused is required to endure a potentially lengthy and distressing special hearing before a jury despite the clear legislative intent of s 21(4) to avoid an unnecessary jury procedure in such circumstances. It was submitted that such an outcome was irrational or perverse and a meaning ought be adopted which avoids that outcome and, it was argued, the construction adopted by Osborn J in DPP v CJC avoids the fundamental injustice identified and recognises that, in additional to all of the textual analysis upon which Osborn J relied, there are ‘strong reasons of both humanity and public policy’[91] supporting the availability of the judge-alone procedure for accused who are unfit to stand trial.
[91]DPP v CJC (2008) 21 VR 581, 585 [35].

SM also took issue with the notion that the judge-alone procedure involved the loss of an opportunity on behalf of the accused to test the prosecution case and obtain an acquittal. If, as Bell J assumes, a person who is unfit to stand trial is unable to give instructions to consent to a procedure under s 21(4), then he or she is most likely also unable to instruct on the facts in issue, in which case many substantive defences become untenable and the prospect of any acquittal becomes remote.

Finally, SM submitted that, in any event, the accused’s rights are adequately protected in a judge-alone procedure because if the judge is not convinced that the accused has engaged in the conduct giving rise to the offence then he or she cannot be satisfied that the evidence supports the defence of mental impairment. In those circumstances the judge would need to refer the matter for determination by a jury pursuant to s 21(4)(b).

Is the judge alone procedure available when an accused is unfit to stand trial?

The final submission made by SM invites attention to the alternative outcomes of a judge-alone procedure under s 21(4)(a) and (b).

Under s 21(4), the judge alone must determine whether to direct that a verdict of not guilty because of mental impairment be recorded, if satisfied that the evidence establishes the defence of mental impairment. Although it is a pre-condition to the availability of the procedure that the prosecution and the defence agree that the proposed evidence establishes that defence, it remains a live question for the adjudication of the judge whether, on the evidence, the defence is made out. If it is made out, the consequence will be that the accused is spared the experience of a hearing before a jury, having already undergone the investigation into his or her fitness to stand trial by a separate jury empanelled solely for that purpose, pursuant to s 7(3) of the Act.

To test the scope and application of s 21(4) it is necessary, however, to consider the consequence of a judge alone determining, despite the agreement of the prosecution and the defence, that, on the evidence, the defence of mental impairment is not made out.

Where there is no question about the accused’s fitness to stand trial, the conclusion that the defence of mental impairment is not made out leads simply to the consequence that an ordinary criminal trial is to take place. The words of s 21(4)(b) that ‘the trial judge may hear the evidence and … if the trial judge is not so satisfied, must direct that the person be tried by a jury’[92] are apt to describe that circumstance. Of course, SM would not wish to see a person unfit to be tried subjected to an ordinary criminal trial by jury. Thus s 21(4)(b) must be reconstrued, on SM’s approach, to embrace a special hearing before a jury under Pt 3.
[92]Emphasis added.

However, in my view, the words of s 21(4)(b) are not apt to describe the conduct of a special hearing under Pt 3 which throughout the Act is distinguished from a trial for the very reason that the person has been found unfit to be tried. This is not merely a question of semantics; rather, it reflects the foundation of Pt 2 of the Act which aims to ensure that a person who satisfies any or all of the criteria in s 6, being, for example, unable to understand the nature of the charge or unable to understand the nature of the trial or to follow the course of the trial, or to understand the substantial effect of the evidence the prosecution might rely upon, will not be tried but will rather, by contrast, participate in a special hearing with the protections that a special hearing brings, including amongst other things, not being required to plead[93] and, most importantly, no verdict of guilty being available.
[93]As mentioned above, the accused is taken to have entered a plea of not guilty pursuant to s 16(2)(a).

In my view, to read s 21(4)(b) as if the judge could direct that the matter proceed to a special hearing before a jury would require ‘reading in’ words so that s 21(4)(b) would be understood as providing that ‘the trial judge may hear the evidence and … if the trial judge is not so satisfied, must direct that the person be tried by a jury, and, in the case of a person found unfit to stand trial, the jury must be empanelled for the purpose of conducting a special hearing under Part 3’. I do not consider that the insertion of those additional words could satisfy the tests enunciated in Cooper Brooks (Wollongong) Pty Ltd v FCT[94] and Kingston v Keprose Pty Ltd.[95] In particular, I do not consider that the second and third limbs of the three-pronged test described by McHugh JA in Kingston v Keprose Pty Ltd are satisfied. His Honour formulated that test as follows:

First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[96]

[94](1981) 147 CLR 297.

[95](1987) 11 NSWLR 404. See, more generally, DPP v Leys (2012) 296 ALR 96, 108–131, [45]–[111].

[96]Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423. McHugh JA was reaffirming the three conditions that must be satisfied for words to be read into a statute as identified by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74, 105–6.

The conflicting authority between, on the one hand, Osborn J in DPP v CJC and, on the other hand, Bell J in DPP v Watson, indicates that it could not be sensibly concluded that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. The purposes of the Act[97] include relevantly the provision of new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment. The manner in which those provisions are to be interpreted lies at the heart of the conflicting approaches. There is no consensus that the purpose of the Act could not be achieved unless the judge-alone procedure under s 21(4) was available to a person who has been found unfit to be tried, let alone any indication that this has been the result of inadvertence. There would be no need to read additional words into s 21(4)(b) to ensure that a person who is unfit to be tried was not subjected to a criminal trial if one took the view that the procedure under s 21(4) is not available to that person.
[97]See [99] above.

Furthermore, the extent of the ‘reading in’ required to ensure that a person found unfit to be tried avoids a criminal trial suggests that the reading is unwarranted. One could not say with certainty that those words specified above are exactly those which the Parliament would have used had its attention been drawn to the issue. It is arguable that it would be necessary for the additional words also to express a time limitation for the holding of the special hearing. The time limit of three months in s 12(5) would not apply to a special hearing directed to be undertaken under s 21(4)(b) because in its terms it applies only from the date on which the accused has been found unfit to stand trial and the judge has determined that the accused is not likely to become fit within the next 12 months. It would thus be necessary to generate a new time limit, perhaps a similar time limit of three months as that specified under s 12(5). This would mean that the additional words to be ‘read into’ s 21(4)(b) might be understood as providing that ‘the trial judge may hear the evidence and … if the trial judge is not so satisfied, must direct that the person be tried by a jury and, in the case of a person found unfit to stand trial, the jury must be empanelled for the purpose of conducting a special hearing under Part 3 within 3 months from the date on which the judge gives the direction’. Not only does this increase the extent of the remedial interpretation required but it raises the question of why three months should be chosen, and not immediately, or one, or two, or six months? There would be no necessity for the time limit chosen in s 21(4)(b) to reflect that found in s 12(5) and reasonable minds might differ. There may be policy arguments supporting a shorter time limit than that in s 12(5) (so that it is dealt with expeditiously) and others that supported a longer time limit (because the accused should be given some time to re-focus). These observations compound the lack of certainty as to the words the Parliament would have chosen had it been alerted to the difficulties in s 21(4).

Absent the additional words, a consequence of SM’s position is that, if the judge is not satisfied that the defence of mental impairment is made out, under s 21(4)(b), the judge must direct that the person who has been found unfit to be tried must be tried in accordance with the usual procedures of a criminal trial. Such an absurd consequence is, in my view, sufficient to demonstrate that the legislative intent did not extend to making available the judge-alone procedure under s 21(4) to an unfit person.

There is a further observation that tells against the interpretation of the words ‘be tried by a jury’ as fit to encompass a special hearing under Pt 3, namely, that the special hearing to which an accused might be directed under s 21(4)(b) would be the second special hearing to investigate the conduct of the accused and the accused’s mental state at the time of the offending, given that, on SM’s view, the judge-alone procedure is one form of special hearing. Yet there is no mention in the Act of the likelihood of there being two special hearings in relation to the same offence or how the conduct of one may affect the conduct of the other, for example, whether at the commencement of the second special hearing the judge is to explain to the jury the fact that a judge alone procedure has already occurred or its outcome. The additional words that would need to be read into s 21(4)(b) would not, without further expansion, address this issue. The risk of a second special hearing also detracts from what might otherwise be those considerations of both humanity and public policy favouring the judge-alone procedure.[98]
[98]See [136(8)] above.

It is not surprising that the construction of s 21(4)(b) did not loom large in the reasoning of Osborn J because he had already found that the defence of mental impairment was made out in respect of CJC, and had provided his reasons as an explanation of why the orders he had made were not a nullity by reason of a fundamental procedural irregularity. There was thus no occasion to consider the exercise of power under s 21(4)(b) or to subject its construction to scrutiny. His Honour’s only observation in respect of s 21(4)(b) was that ‘the requirement that if the trial judge is not satisfied that the evidence establishes the defence of mental impairment he or she must direct the charge for the offence be tried by a jury is not in my view inconsistent with Pt 3 and in particular the terms of s 16(1) and (2)’.[99] It would seem that his Honour was prepared to construe the word ‘tried’ in s 21(4)(b) as if it were referring to a special hearing under Pt 3 and I have already indicated above why I consider that such a construction is untenable.
[99]See [136((9)] above.

Furthermore, the general approach to s 21(4) contended for by SM is at odds with the nature and scope of a special hearing. I consider it artificial to describe a hearing under s 21(4) by a judge alone as a ‘special hearing’. A special hearing is defined as a hearing under Pt 3.[100] Section 21, as noted above, is contained in Pt 4; it is a hearing under Pt 4, not a hearing under Pt 3.
[100]See [111] above.

Moreover, as noted above,[101] a special hearing has a single purpose, namely, whether it can be determined, on the evidence, that any of three potential outcomes has been made out. Under s 15 the aim of a special hearing is to determine that the accused was not guilty of the offence; or not guilty of the offence because of mental impairment; or committed the offence charged or an offence charged as an alternative. As I foreshadowed above,[102] this suggests that the three alternative outcomes must be potentially available at the commencement of a special hearing by a body entrusted with the power to make any of the determinations. Yet a judge alone, acting under s 21(4), does not have the power to make two of the alternative determinations envisaged by s 15 as available at a special hearing. To my mind, this signifies that a judge alone does not constitute a special hearing, for he or she is not empowered to make the complete range of findings to which a special hearing is directed. By contrast, the fact that it is the jury which, under s 17(1), is empowered to make the complete range of findings that correspond to the three alternative determinations that make up the purpose of a special hearing, under s 15, confirms that a special hearing is a hearing before a jury.[103] With great respect to Osborn J, the limited nature of the power that a judge can exercise under s 21(4) fundamentally reveals that to treat the judge-alone procedure as a variant of a special hearing is inconsistent with the purpose of a special hearing as defined by s 15.
[101]See [111]–[112] above.
[102]See [112] above.
[103]This is not to rely on the absence of the words ‘special hearing’ in s 21(4): see [138] above.

It is noteworthy that in New South Wales the Mental Health (Criminal Procedure) Act 1990 (NSW) expressly provided that an accused could elect to have a special hearing heard by a judge alone.[104] In that context, the judge was empowered to deliver any of the verdicts available to a jury. Section 21B(1) provided:

The verdicts available to a Judge who determines a special hearing without a jury are the verdicts available to a jury … Any such verdict has, for all purposes, the same effect as a verdict of a jury.

[104]Section 21A provided: ‘(1) At a special hearing, the question whether an accused person has committed an offence charged or any other offence available as an alternative to an offence charged is to be determined by the Judge alone if the person so elects in accordance with this section and the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor.’ This was the form of the New South Wales legislation at the time of the decision in R v Zvonaric (2001) 54 NSWLR 1, discussed below. There have been cases concerned with the need for the judge to be satisfied that the accused understands the election he or she is making: see, for example, R vMinani (2005) 63 NSWLR 490. The Mental Health (Criminal Procedure) Act has since been renamed the Mental Health (Forensic Provisions) Act and s 21A now provides conversely: ‘(1) At a special hearing, the question whether an accused person has committed an offence charged or any other offence available as an alternative to an offence charged is to be determined by the Judge alone unless an election to have a special hearing determined by a jury is made by: (a) the accused person and the Court is satisfied that the person sought and received advice in relation to the election from an Australian legal practitioner and understood the advice, or (b) an Australian legal practitioner representing the accused person, or (c) the prosecutor.’ This is set against the background that under s 11 of the Mental Health (Forensic Provisions) Act the question of whether an accused is unfit to be tried is also determined by a judge alone; s 11 provides: ‘(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone.’

Osborn J emphasised the strictly limited nature of the judge’s power under s 21(4)[105] to explain why it is that the word ‘jury’ appears in s 16(2)(f), s 17(2) and s 18(1) rather than the word ‘court’. But the alternative explanation for the use of the word ‘jury’ in s 16(2)(f), s 17(2) and s 18(1) is that a special hearing is comprised of a hearing conducted before a jury and cannot be constituted by a hearing conducted before a judge alone. The better explanation for the multiplicity of references to ‘the jury’ in ss 16, 17, and 18, and the other provisions, as set out above, is that a special hearing is a hearing before a jury and this is why, for example, the Act provides, under s 16(2)(b), that a legal representative of the accused is empowered to challenge jurors and why, under s 16(3), at the commencement of a special hearing, the judge must explain to the jury that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial, the purpose of a special hearing, and the findings that are available. To suggest that the explanations that s 16(3) requires to be given at a special hearing are unnecessary at a judge-alone procedure,[106] and to that extent s 16(3) must be ‘read down’ as inapplicable to a special hearing under s 21(4), is at odds with the numerous indicia in ss 16, 17 and 18 that a special hearing involves a fact-finding determination by a jury.
[105]See [136(10) and (11)] above.
[106]See [136(12)] above.

Moreover, it is not the case that there is no standard of proof identified in Pt 3 applicable to a finding that the accused is not guilty because of mental impairment.[107] Section 17(1) sets out the three findings available to a jury at a special hearing and s 17(2) stipulates that the criminal standard is to apply to the finding, under s 17(1)(c), that the accused committed the offence.[108] The finding that the accused is not guilty of the offence charged, under s 17(1)(a), is a negative finding that flows as a consequence of the criminal standard not being reached. It is a short inference to make that the third alternative finding, involving a positive finding that the defence of mental impairment is made out, is one to which the criminal standard is not applicable and for which the standard must be the balance of probabilities. This is supported by the requirement under the immediately preceding section, s 16(3)(e), that a judge explain to the jury at the commencement of a special hearing the standard of proof required for the findings that are available. This would appear to indicate that just as the findings are identified under s 17(1), so too the standard of proof for the findings is identified, explicitly and implicitly, in s 17(2).
[107]See [136(3)] above.
[108]See [113] above.

This is not to deny some inter-dependence between Pt 3 and Pt 4, as the DPP rightly conceded. SM is correct to submit that such interdependence does not need to be express; there is no need, for example, for s 12(5) to state that Pt 3 is ‘subject to Pt 4’.[109] It is clear that the defence of mental impairment takes its content from s 20 and its general evidentiary framework from s 21.[110] The interdependence is limited, however. For example, a finding under s 17(1)(b) only takes its effect from s 23[111] in Pt 4, because of s 18(2), in Pt 3, which provides that a finding under s 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment. Section 23 identifies what that effect is in relation to a criminal trial, namely, that the person is to be declared liable to supervision or released unconditionally.
[109]See [139] above.
[110]See [136(2)] above.
[111]See [136(4)] above.

Part 3 only draws upon Pt 4, and in particular upon s 21, to the extent necessary for its operation and as tempered to the nature, conduct and scope of a special hearing as provided for under Pt 3. There is no need for s 21(2)(b) to apply to a special hearing[112] as the standard of proof relating to the question of whether a person was suffering from a mental impairment in that context can be identified from s 17(2). The fact that the plain words of s 21(2)(b) refer to s 21(4) is thus of no importance and carries no strong implication of the type sought to be relied upon by SM. But even if I am wrong and s 21(2)(b) does apply to a special hearing to the extent that it specifies the relevant standard of proof for the defence of mental impairment in a special hearing, this would not entail that s 21(4) applied to make available the possibility of a determination by a judge alone. Whether the words ‘subject to subsection (4)’ in s 21(2)(b) attract the judge-alone procedure depends, as it must, on whether the features of the judge-alone procedure are inconsistent with those of a special hearing and, as indicated above, I have concluded that they are inconsistent.
[112]See [136(5)] above.

Moreover, I consider that SM’s reliance upon s 16(1) is misplaced. I do not consider that s 16(1) can bear the substantial burden SM required it to bear. For convenience, I will set it out again:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

I accept that, as Osborn J said, the Act does not intend that there be fundamentally different procedures for special hearings and criminal trials where the defence of mental impairment is raised.[113] However, it is clear that one of the purposes for which a special hearing is assimilated to a criminal trial is for the purpose of ensuring that the Juries Act applies. As noted above, the balance of s 16 includes s 16(2)[114] which is premised on the special hearing being conducted before a jury, as is apparent from the inclusion of the right to challenge jurors under s 16(2)(b) and the preservation of the alternative verdicts to the jury under s 16(2)(f). Section 16(3)[115] is also premised on a special hearing being conducted before a jury, as it requires, amongst other things, that the jury are told what findings are available, those findings being specified in s 17(1).[116] A principal aim of s 16(1) is thus to ensure that the Juries Act applies to a special hearing as if it were a criminal trial, with appropriate modifications.
[113]See [136(1)] above.
[114]See [117] above.
[115]See [115] above.
[116]See [113] above.

Section 16(1) prescribes the manner in which a special hearing ‘is to be conducted’. In my view, the reference to how a special hearing ‘is to be conducted’ is apt to include such matters as the presumption of innocence; the burden of proof in relation to the offence; and the application of the rules of evidence, in particular, whether certain witnesses are compellable, whether hearsay can be admitted, and so on. In other words, s 16(1) is directed largely at considerations of process once a special hearing has commenced. Some of these matters are singled out for special mention in s 16(2). In effect, s 16(1) is concerned with the process by which the special hearing is to be conducted or matters incidental thereto. It does not extend to the incorporation of a wholly new form of special hearing, one not premised on being conducted before a jury, for which no express provision has been made.

The New South Wales Court of Criminal Appeal in R v Zvonaric[117] held that s 21(1) of the then Mental Health (Criminal Procedure) Act 1990 (NSW),[118] a comparable provision to s 16(1) of the Act, required that a special hearing must be conducted with the formality appropriate to a criminal trial. Section 21(1) of the Mental Health (Criminal Procedure) Act provided:

Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

[117](2001) 54 NSWLR 1.

[118]As mentioned above, this is now known as the Mental Health (Forensic Provisions) Act 1990 (NSW). Section 21(1) is currently in the same terms.

At the special hearing there was a tender of the whole of the evidence by unsworn witness statements that were not read out, the indictment was not read, there was no formal arraignment and no formal entry of a plea.[119] Adams J described the manner in which the special hearing had been conducted as involving ‘a high degree of informality rather as a sentence proceeding rather than as a trial’.[120] He held that:

[The] mere tender of documents, the substance of which is not published during the proceeding is, to my mind, completely unacceptable … [and] a grave contravention of both the words and the spirit of s 21(1) of the Act.[121]

[119](2001) 54 NSWLR 1, 9 [32].

[120]Ibid 9 [34].

[121]Ibid 12 [42]. However, he put to one side that there may be cases where reading the statements out would cause unnecessary distress (at 11, [41]).

Spigelman CJ (with whom Sully J agreed) also considered that s 21(1) required a level of formality, including a formal arraignment. He said:

I agree with Adams J that the obligation imposed by s 21(1) to conduct a special hearing ‘as nearly as possible as if it were a trial of criminal proceedings’ encompasses a formal arraignment. Section 56(2) of the Criminal Procedure Act 1986 requires an arraignment before the Supreme Court or the District Court has jurisdiction with respect to the conduct of proceedings on indictment. I can see no reason why this formal step should not be taken in ‘a special hearing’. It does constitute part of the public process of the administration of criminal justice. The degree of informality, which occurred in the present circumstances, when the indictment was merely handed up and not read aloud, was a greater degree of informality than s 21(1) permits.[122]

[122]Ibid 4 [3].

While he concluded that the tendering of the unsworn statements had not breached this requirement, he cautioned against the practice, observing that:

[T]he principle of open justice suggests that it should not become a general practice to conduct a special hearing as if it were a paper committal. The very exigencies that give rise to the need for a special hearing are such as indicate a greater than usual need to observe the formalities of court process.[123]

[123]Ibid 6 [19].

It was perhaps these type of considerations that were also the source of Bell J’s reticence to proceed with the informal reception of evidence in DPP v Watson.[124]
[124][2013] VSC 245, [6].

In EK v The Queen[125] the New South Wales Court of Criminal Appeal held that the requirement that a special hearing be conducted ‘as nearly as possible as if it were a trial of criminal proceedings’[126] permitted reliance in a special hearing on the evidence given by the complainant in an earlier discontinued proceeding, pursuant to s 306I of the Criminal Procedure Act 1986 (NSW),[127] because evidence of the complainant would be admitted under that provision in a trial of criminal proceedings.
[125](2010) 79 NSWLR 740.
[126]Section 21 of the Mental Health (Forensic Provisions) Act1990.
[127]306I(1) provided: ‘If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.’

To my mind, the terms of s 16(1) are plainly directed to questions about the need to assimilate a special hearing, held in accordance with s 16(2) and s 16(3), to the proceedings in a criminal trial. The statutory language is insufficiently precise or targeted to be read as implicitly providing for a different form of special hearing, one by a judge alone under s 21(4), most especially when all of the other statutory indicia described above point to a special hearing under the Act as a hearing before a jury.

Finally,[128] I consider that SM was wrong to impugn the reasoning of Bell J. While SM was correct to observe that there are multiple alternative criteria under s 6 that could support a finding that a person is unfit to stand trial,[129] the opacity of the jury verdict, upon which SM relied, means that a judge will be unable to discern, in any particular case, whether an accused is someone of whom the jury was satisfied that he or she was unable to give instructions to his or her legal practitioner. If the jury had been so satisfied, it is paradoxical to consider that the same accused could give instructions to counsel to consent to a judge alone determining whether the defence of mental impairment is made out. Although the difficulty may be overcome in particular circumstances, it is unlikely that the Legislature could have intended such a consequence without some express provision, as occurs under s 21(2) of the New South Wales legislation, to the effect that:

At a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation.[130]

[128]I note that the other factors relied upon by Osborn J as set out above, at [136(6), ((13)) and (14)] are largely neutral.

[129]See [105] above.

[130]Mental Health (Forensic Provisions) Act 1990.

As mentioned above, the New South Wales legislation expressly provides for a person found unfit to be tried to have a special hearing before a jury or a judge alone.[131] In that context, the italicised words in s 21(2) have been relied upon to support the proposition that a person found unfit to be tried can nevertheless give instructions to counsel to convey that election.[132] However, the scheme of the Act is different in significant respects to that applicable in New South Wales in the way I have described.
[131]See [163] above.
[132]In Zvonaric v R (2001) 54 NSWLR 1, 5 [12], Spigelman CJ, before quoting s 21(2) in support, said: ‘A special hearing is conducted where a person has been found unfit to be tried. Nevertheless, it is expected that a special hearing will occur with the assistance of legal representation on behalf of the person found to be unfit. Questions of instruction from an accused are necessarily problematic in such circumstances. Nevertheless the legislative scheme assumes such representation and, in its practical operation, the scheme requires the court to rely on the professionalism of that legal representation.’

I do not consider that the reference to ‘the defence’ and not ‘the defendant’ in s 21(4) alleviates this difficulty[133] for it could hardly be supposed that the Legislature intended that a legal representative of the defendant could agree to dispensing with a jury (which is the substantial effect of agreeing, in the context of s 21(4), that the evidence establishes the defence of mental impairment)[134] without the informed consent of his or her client.
[133]See [136(7)] above.
[134]Indeed, in her written submissions, SM referred to the procedure under s 21(4) as ‘the consent mental impairment procedure’.

Conclusion

The case stated should be answered in the negative.

More exactly, I would answer the case stated in the following way:

Following a jury determination that the accused is unfit to stand trial, it is not open to the trial judge, pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, to direct that a verdict of not guilty because of mental impairment be recorded. It is necessary to empanel a jury to determine a verdict at a special hearing, including, if the jury is satisfied on the evidence, that the accused is not guilty because of mental impairment.
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[2013] VSCA 342

28 November 2013