SM v The Queen

Case [2011] VSCA 332


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0125

SM

Appellant

v

THE QUEEN

Respondent

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JUDGES REDLICH and MANDIE JJA and WHELAN AJA
WHERE HELD MELBOURNE
DATE OF HEARING 22 September 2011
DATE OF ORDERS 22 September 2011
DATE OF PUPLICATION OF REASONS 2 November 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 332
JUDGMENT APPEALED FROM R v SM (Unreported, County Court of Victoria, Judge Tinney, 25 May 2011)

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CRIMINAL LAW – Question of fitness to plead and stand trial – Application at outset of trial to adjourn trial to investigate question refused – Fresh evidence on appeal relevant to question – Whether discretion to refuse adjournment miscarried – Whether refusal to adjourn produced miscarriage of justice – Conviction quashed and retrial ordered.

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Appearances: Counsel Solicitors
For the Appellant Mr L C Carter and
Mr P J Wheelahan
Ann Valos
For the Crown Mrs C M Quin Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

  1. Following a County Court trial the appellant was convicted of raping a woman after she visited his residence for the purposes of receiving a massage.  He was sentenced to six and a half years’ imprisonment with a minimum term of four and a half years. 

  1. On 19 August 2011 I granted the appellant leave to appeal against conviction and sentence.  At the hearing of the appeal on 22 September 2011, this Court ordered that, among other things, the appeal against conviction be allowed, the conviction be quashed and the sentence set aside and a re-trial ordered.  What follows are my reasons for the Orders made.

History of proceedings

  1. The appellant’s matter was first listed for a filing hearing on 6 March 2009.  After various directions’ hearings and a contested committal in August 2009, the matter was listed for trial in June 2010.  However, due to the unavailability of a judge, the trial was adjourned to 7 March 2011.

  1. The appellant’s solicitor remained the same throughout these pre-trial proceedings and the trial, but counsel briefed to appear for the appellant changed a number of times.  As a consequence, counsel who represented the appellant at trial was only briefed days before the trial and first met the appellant the day before the trial commenced.  

  1. Counsel, of significant experience at the bar, became immediately concerned about the appellant’s fitness to plead, and in particular, communicate instructions.  He raised the issue of the appellant’s fitness to plead with the trial judge on the morning of the first day of trial and sought an adjournment to have the appellant assessed.  The trial judge refused the application and ordered that the trial proceed. 

  1. However, during the trial, it became even more apparent to the appellant’s legal team that the appellant may have been suffering from a mental illness.  He was observed to be muttering and making odd gestures to the jury and himself.  For this reason, the trial judge revoked his bail.

  1. During the plea, a Forensicare pre-sentence psychiatric report was tendered indicating the appellant suffered…

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SM v The Queen [2011] VSCA 332
Case
[2011] VSCA 332
Decision Date

CaseChat Overview and Summary

In the case of SM v The Queen, the appellant, SM, was on trial for charges of murder. The Crown argued that SM was fit to stand trial, while the defence maintained that SM was not fit to plead and, consequently, not fit to stand trial. The trial judge rejected the defence's application to adjourn the trial to investigate the issue of fitness. The appeal to the Court of Appeal focused on whether the trial judge's refusal to adjourn the trial constituted a miscarriage of justice.

The central legal issues before the Court of Appeal were whether the trial judge had misapplied the discretion to refuse the adjournment, and whether this refusal resulted in a miscarriage of justice. The defence argued that the trial judge had failed to properly consider the evidence and had not adequately assessed the potential impact of SM's alleged unfitness on the fairness of the trial. The Crown, on the other hand, contended that the trial judge's decision was correct and that there was no miscarriage of justice.

The Court of Appeal determined that the trial judge had miscarried in the exercise of the discretion to refuse the adjournment. The Court found that the trial judge had not fully considered the evidence and had not adequately assessed the implications of SM's alleged unfitness on the fairness of the trial. The Court held that the refusal to adjourn the trial led to a miscarriage of justice, as it prevented a proper determination of SM's fitness to stand trial. Consequently, the Court quashed SM's conviction and ordered a retrial. The Court emphasised the importance of ensuring that defendants are fit to stand trial to maintain the integrity and fairness of the criminal justice system.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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