Tasmania v Drake

[2006] TASSC 21

[2006] TASSC 21

CITATION:            Tasmania v Drake [2006] TASSC 21

PARTIES:  TASMANIA
  v
  DRAKE, Colin William

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  41/2006
DELIVERED ON:  6 April 2006
DELIVERED AT:  Burnie
HEARING DATE:  6 April 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Accused unfit to plead or incapable during trial – Other matters – Accused's fitness to stand trial need not be determined by a jury.

Criminal Justice (Mental Impairment) Act1999 (Tas), ss 12, 19.
State of Tasmania v Bosworth [2005] TASSC 29, referred to.
Aust Dig Criminal Law [733]

REPRESENTATION:

Counsel:
           Appellant:  P Jones
           Respondent:  T Jago
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission of Tasmania

Judgment Number:  [2006] TASSC 21
Number of paragraphs:  7

Serial No 21/2006
File No 41/2006

TASMANIA v COLIN WILLIAM DRAKE

REASONS FOR JUDGMENT  EVANS J

6 April 2006

1. The defendant, Colin William Drake, has been indicted on three counts of unlawfully setting fire to vegetation.  The prosecutor and the defendant, by his counsel, agree that the defendant is not fit to stand trial.  Pursuant to the Criminal Justice (Mental Impairment) Act 1999 ("the Act"), s38, in the circumstances of the defendant, his counsel may act, in the exercise of an independent discretion, in what she genuinely believes to be the defendant's best interests.

1. It is accordingly necessary to investigate the defendant's fitness to stand trial. As to such an investigation, the Act contains two apparently contradictory provisions. They are:

"12     (1)      In the case of proceedings in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury."

and

"19     A court may, if the prosecutor and defendant agree, dispense with or terminate an investigation into the defendant's fitness to stand trial and –

(a)  record a finding that the defendant is unfit to stand trial; or

(b)  proceed under section 13 as if, after the investigation, the court had made a finding that the defendant is not unfit to stand trial."

1. The conflict is between the requirement in s12(1) that in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury, and the authority that s19 provides for the determination of that question by a court where the prosecutor and the defendant agree. Section 19 does not envisage any role for a jury in a court's dispensation with, or termination of, an investigation into a defendant's fitness to stand trial and the recording of a finding that a defendant is unfit or not unfit to stand trial. How is this apparent conflict to be resolved?

1. I conclude that s12(1) should be read subject to s19. Accordingly, where counsel are in agreement, this Court may, without involving a jury, dispense with, or terminate, an investigation into a defendant's fitness to stand trial and record a finding on that issue. If it is found that the defendant is unfit to stand trial, then this Court must address the consequential issue of whether the defendant is likely to become fit to stand trial within 12 months, s14(1). I so conclude because the power granted by s19 is granted to "(a) court" and pursuant to s4(1), the Act applies to all courts. Save for s12(1), there is no indication that this Court should be excluded from the operation of s19.

1. If it was intended that s19 should not apply to the Supreme Court, it is reasonable to expect that this would have been clearly indicated. Elsewhere in the Act, where a provision is intended to apply in a particular way to the Supreme Court or to relate solely to the Supreme Court, this has been done expressly: see ss10(2), 12(1), 14(5) and 15(3). More pertinently, it is manifest that s19 is intended to apply to the Supreme Court as pursuant to s19(b), where the result of dispensing with, or terminating, an investigation is a determination that the defendant is fit to stand trial, the court is to proceed under s13, which provides:

"13     (1)      If an investigation is completed before a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.

(2)      If an investigation is completed after a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must resume the proceedings in accordance with appropriate criminal procedures."

This section prescribes how the trial of a defendant is to proceed following a finding that the defendant is not unfit to stand trial and the method of proceeding varies, dependent upon whether that finding is made before or after a jury is empanelled for the purposes of the defendant's trial. The method of proceeding being contingent upon whether that finding is made before or after a jury is empanelled, the section can only apply to the Supreme Court, it being the only Court subject to the Act that conducts jury trials. In consequence, s19 must be intended to apply to the Supreme Court.

1. I prepared these reasons before noting that in State of Tasmania v Bosworth [2005] TASSC 29 at [12], Crawford J said with reference to the Act:

   "Section 12(1) was not well drafted for on its face it purports to require for every case of proceedings in the Supreme Court that the question whether a person is fit to stand trial 'must be determined by a jury', whereas it is clear from ss19 and 14(1), that the Court may make a finding on the issue without the use of a jury."

   As can be seen from what I have written, I agree with Crawford J.

1. I conclude that the requirement in s12(1) that in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury, should be read subject to the power conferred by s19 in the circumstances there specified, a power which may be exercised by this Court in the absence of a jury.