The Queen v Hoffmann (No 3)
[2022] NTSC 24
•31 March 2022
CITATION:The Queen v Hoffmann (No 3) [2022] NTSC 24
PARTIES:THE QUEEN
v
HOFFMANN, Benjamin
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory Jurisdiction
FILE NO:21922564
DELIVERED: 31 March 2022
HEARING DATE: 4 March 2022
JUDGMENT OF: Burns J
CATCHWORDS:
STATUTORY INTERPRETATION – Meaning of the word “trial” within Division 3 of Part IIA of Criminal Code Act 1983 (NT) – Whether “trial” includes proceedings on plea of guilty – Whether contrary intention demonstrated – “Trial” not intended to include proceedings on plea of guilty
CRIMINAL PROCEDURE – Scope of power to order investigation into fitness under Part IIA of Criminal Code Act 1983 (NT) – Where accused becomes mentally ill in period between plea of guilty and passing of sentence – No jurisdiction to order investigation under CriminalCode –Common law jurisdiction to order investigation into accused’s capacity to give instructions in sentencing phase of proceedings not determined by previous authority – No obligation to order investigation
Criminal Appeal Act 1907, 7 Edw 7, c 23
Criminal Code Act 1983 (NT) ss 4, 43J, 43K, 43N, 43P, 43Q, 43R, 43XA, 43V, 43W, 43X, 43ZA, 157
Sentencing Act 1995 (NT) s 53A
Supreme Court Act 1979 (NT) s 54Eastman v The Queen (2000) 203 CLR 1; Ngatayi v The Queen (1980) 147 CLR 1; R v Dyson (1831) 7 C & P 305; R v GB [2003] OJ No 784; R v Jaser, 2015 ONSC 4729; R v Presser [1958] VR 45; R v Pritchard (1836) 173 ER 135; R v RTI (2003) 58 NSWLR 438, referred to.
REPRESENTATION:
Counsel:
Crown: L Babb SC with T Grealy and H Riley
Accused:J Tippett QC with P Maley and C Voumard (until 10 November 2021);
P Petersen (25 January 2022 to 22 February 2022);
B Levet with P Petersen (22 February 2022 to 4 March 2022);
Self-represented (all other times)Amicus curiae: B Levet with P Petersen (5 March 2022 to present)
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused: Northern Territory Legal Aid Commission (until 10 November 2021)
Judgment category classification: B
Judgment ID Number: Bur2205
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Hoffmann (No 3) [2022] NTSC 24
No 21922564
BETWEEN:
THE QUEEN
AND:
BENJAMIN HOFFMANN
CORAM: BURNS J
REASONS FOR DECISION
(Delivered 31 March 2022)
Introduction
On 21 September 2021, the prisoner, Benjamin Hoffmann, was arraigned on an indictment containing four counts of murder, four counts of aggravated unlawful entry, three counts of engaging in conduct giving rise to a danger of death, one count of engaging in conduct giving rise to a danger of serious harm, one count of making a threat to kill and one count of damaging property. He entered pleas of not guilty to all charges and his trial proceeded before a jury. The prisoner was represented by Mr J Tippett QC, Mr P Maley and Ms C Voumard, all experienced criminal law practitioners. As I understand it, these lawyers were acting under a grant of legal aid.
On 2 November 2021, after 20 days of evidence including hearing the evidence of over 120 witnesses, the prisoner was re-arraigned and entered pleas of guilty to three counts of murder, one count of manslaughter, one count of making a threat to kill and three counts of engaging in conduct giving rise to a danger of death. The Crown accepted those pleas in full satisfaction of the indictment. The jury was discharged and evidence on sentence on behalf of the Crown and the prisoner was received by the Court. On 3 November 2021 the sentence proceedings were adjourned to a date to be fixed for further submissions.
On 10 November 2021 the prisoner wrote to the Northern Territory Legal Aid Commission (‘the Commission’) stating that he was dispensing with the services of his legal team and requesting that the Commission change his grant of aid to enable new lawyers to be engaged. In the light of the prisoner’s actions, his then lawyers sought, and were granted, leave to withdraw from the proceedings on 18 November 2021. The prisoner’s grant of legal aid was cancelled and, as I understand it, he sought a further grant of aid from the Commission either for new lawyers to be engaged to conduct a full review of the case (the prisoner’s first preference) or to represent him in the sentence proceedings.
On 4 March 2022 the prisoner was represented by Mr B Levet and Dr P Petersen of counsel pursuant, as I understand it, to a grant of legal aid by the Commission to represent the prisoner in his sentence proceedings. The matter was listed on that day to make arrangements for the further hearing of the sentence proceedings. The matter was listed for the afternoon of 4 March 2022 to give the prisoner’s new legal team time to take further instructions from the prisoner on the morning of that day. When the matter came before the Court that afternoon, Mr Levet informed the Court that he and Dr Petersen had concerns about the prisoner’s mental state, and that his mental state appeared to them to be such that the prisoner could not give instructions.
Mr Levet submitted that I should order an investigation into the fitness of the accused to stand trial pursuant to s 43N of the Criminal Code Act 1983 (NT) (‘the Code’), or alternatively order an investigation pursuant to suggested common law powers. The Crown opposed that course on the basis that I had no jurisdiction to make the order sought by Mr Levet.
After hearing Mr Levet on 4 March 2022, I gave Mr Levet leave to provide further written submissions in support of the application. In those written submissions, Mr Levet and Dr Petersen state that subsequent to the hearing on 4 March 2022 the prisoner has withdrawn his instructions to Mr Levet, and the continued participation of both Mr Levet and Dr Petersen is in their capacity as amici curiae at the express request of the Commission.
The present judgment is confined to a determination of whether I have power to make the order sought by Mr Levet. I do not embark, at this time, on any consideration of the factual merits of the suggestion that the prisoner presently has a mental illness or other impairment that prevents him from providing instructions to his lawyers.
The application under the Criminal Code
Dealing with the submission concerning s 43N, that provision is found in Division 3 of Part IIA of the Code. That Division is titled “Unfitness to stand trial”. The word “trial” is defined in s 4 of the Code. The effect of that definition is that, unless a contrary intention appears, the word “trial” as used in the Code “includes proceedings on a plea of guilty”.
The concept of unfitness to stand trial for the purposes of Division 3 of the Code is set out in s 43J. A person is unfit to stand trial if the person is:
(a) unable to understand the nature of the charge against him or her;
(b) unable to plead to the charge and to exercise the right of challenge;
(c) unable to understand the nature of the trial (that is that a trial is an inquiry as to whether the person committed the offence);
(d) unable to follow the course of the proceedings;
(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 counsel.
A person is presumed to be fit to stand trial, and that presumption of fitness is rebutted only if it is established by an investigation under Division 3 of the Code that the person is unfit to stand trial: s 43K.
The question of a person’s fitness to stand trial may be raised at any time after the presentation of the indictment: s 43N(1). The court must order an investigation into the accused person’s fitness to stand trial if the judge is satisfied that there are reasonable grounds on which to question the accused person’s fitness to stand trial: s 43N(2)(b).
It is implicit in the terms of the Code that the issue of an accused person’s fitness to stand trial is to be determined by a jury: see s 43P(1). If the accused person is found fit to stand trial, their trial proceeds in the normal way: s 43Q. If the jury finds the accused person unfit to stand trial, the judge must determine whether there is a reasonable prospect that the accused person might, within 12 months, regain the necessary capacity to stand trial: s 43R(1).
Where the judge determines that there is a reasonable prospect that the accused person might become fit for trial within 12 months, the judge must adjourn the matter of the fitness of the accused person for a period not exceeding 12 months: s 43R(4). If the matter is so adjourned, the judge may make interim orders, including orders granting the accused person bail or remanding them in custody.
If the judge determines that it is not likely that the accused will become fit to stand trial within 12 months, the court must hold a special hearing within 3 months after the date of the judge’s determination: s 43R(3). This is subject to an exception where the parties to the prosecution agree that the evidence establishes the defence of mental impairment. In such a case, the court is not required to conduct a special hearing and may accept a plea and record a finding of not guilty to the offence because of mental impairment: s 43XA.
The conduct of special hearings is governed by the provisions of Division 4 of the Code. The purpose of holding a special hearing, as set out in s 43V of the Code, is to determine, on the evidence available, whether an accused person who is found not fit to stand trial:
(a)is not guilty of the offence they are charged with;
(b)is not guilty of the offence they are charged with by reason of mental impairment; or
(c)committed the offence they are charged with or an alternative offence.
The procedure to be adopted at a special hearing is found in s 43W of the Code. At such a hearing:
(a)the accused person is taken to plead not guilty;
(b)the accused person’s legal representative (if any) may exercise the accused person’s right of challenge;
(c)the accused person may raise any defence (including the defence of mental impairment) that he or she could raise at a criminal trial;
(d)the rules of evidence apply;
(e)the accused person may give evidence; and
(f)any alternative finding of guilt that would be available for a jury at a criminal trial is available to the jury at the special hearing.
If the jury at a special hearing finds the accused person not guilty of the offence, the finding is taken to be a finding of not guilty at a criminal trial and the court must discharge the accused person: s 43X(1). If the jury finds the accused person is not guilty because of mental impairment, the finding is taken to be a finding of not guilty because of mental impairment at a criminal trial and the court must either declare that the accused person is liable to supervision under Division 5 of the Code, or order that the accused person be released unconditionally: s 43X(2). If the jury finds that the accused person committed the offence charged or an alternative offence, the finding is taken to be a qualified finding of guilt and does not constitute a basis in law for a finding of guilt of the offence to which the finding relates. Such a finding does, however, constitute a bar to further prosecution in respect of the same conduct and circumstances. The finding is also subject to appeal in the same manner as if it were a finding of guilt at a criminal trial. Upon such a finding the court must declare that the accused person is liable to supervision under Division 5 of the Code or discharge the accused person unconditionally: s 43X(3).
A supervision order under Division 5 of the Code may include an order committing the accused person to custody: s 43ZA(1).
It is apparent from the above that the scheme of the provisions of the Code dealing with unfitness to stand trial requires the following process:
(a)first, a determination is made whether the accused person is unfit to stand trial as assessed against the criteria set out in s 43J of the Code;
(b)secondly, where an accused person is assessed as unfit to stand trial and is unlikely to become fit to stand trial within 12 months, the court must hold a special hearing. If the accused is likely to become fit within 12 months, the matter of fitness to stand trial is adjourned;
(c)thirdly, at a special hearing the accused person is taken to have pleaded not guilty and the hearing proceeds so as to determine whether the accused is guilty, not guilty, or not guilty by reason of mental impairment.
The submission made by Mr Levet turns upon the legislatively intended meaning of the word “trial” in Division 3 of Part IIA of the Code. Does it include the extended definition of “proceedings on a plea of guilty” found in s 4 of the Code or is a contrary intention demonstrated? The process under the Code by which a person’s fitness to stand trial is assessed, and its constituent parts, appears to be directed towards addressing the issue of the accused’s fitness to engage in the trial process before a finding of guilt has been made or before a solemn admission of guilt by entry of a plea of guilty has been made. Some of the criteria against which an accused person’s fitness to stand trial is to be assessed may, on a plain reading, apply to both proceedings to determine guilt and proceedings after a determination or admission of guilt: the inability of the accused to understand the nature of the charges, to follow the course of the proceedings or to give instructions to counsel all fall within this grouping. Others are clearly directed towards a trial in the sense of a process for determining guilt. Perhaps the most significant provision casting light on the meaning of the word “trial” in Division 3 is s 43J(1)(c) which prescribes that one of the criteria for determining whether an accused person is fit to stand trial is whether the accused is “unable to understand the nature of the trial (that is that a trial is an enquiry as to whether the person committed the offence)” (emphasis added).
In addition, it would be absurd to suggest that a special hearing should be conducted to determine whether the prisoner committed the offences to which he has already pleaded guilty where the integrity of those pleas has not been impugned. The Code makes no provision for setting aside a plea of guilty before, or after, the conduct of a special hearing, a fact that strongly suggests that the meaning of the word “trial” in Division 3 of the Code is restricted to an enquiry as to whether the person committed the offences charged, and is not intended to extend to proceedings on a plea of guilty. It is also relevant to note that, on the interpretation urged by Mr Levet, the Code makes no provision for setting aside any verdicts of guilty returned by a jury where the accused person’s mental state becomes an issue after verdicts are returned and before sentence is imposed. On the interpretation urged by Mr Levet, a further jury would have to be empanelled to determine fitness and then, potentially, yet another jury would be empanelled for the special hearing. All in circumstances where there is already a jury verdict of guilt which is not impugned.
Both the text of the provisions of Division 3 of the Code, and the apparent scheme of that Division and Division 4 of the Code, convince me that the word “trial” where it appears in Division 3 of the Code is not intended to include proceedings on a plea of guilty. This is consistent with the approach suggested by the New South Wales Court of Criminal Appeal regarding cognate legislation in R v RTI (2003) 58 NSWLR 438 at [26] onwards.
For these reasons I am satisfied that I have no jurisdiction to order an investigation under the Code into the prisoner’s fitness to stand trial.
The application based on the common law
The prisoner referred to the decision of Gaudron J in Eastman v The Queen (2000) 203 CLR 1, where her Honour said, at [86]:
Unless there is material to suggest otherwise, a person is presumed fit to plead. And that is so both at trial and on appeal. At trial however, that presumption is displaced if there is material which raises a question as to that person’s fitness to plead. Moreover, if there is a question as to the accused person’s fitness to plead, the trial must stop unless and until the appropriate body determines that he or she is fit to plead.
From the above, it is clear that the common law imposed a duty on a court trying criminal charges to conduct an investigation into an accused’s fitness to plead where a question of fitness arose. It is, however, important to understand the above quotation in its proper context. Eastman was convicted by a jury of a charge of murder. His appeal against conviction to the Full Federal Court was dismissed. Eastman applied for special leave to appeal to the High Court. The grounds of this application were that he had been unfit to plead at the time of his trial because of mental illness, that the Director of Public Prosecutions knew that it was likely that he suffered from mental illness which would render him unfit to plead and, because of these facts, the trial miscarried. The issue of Eastman’s fitness to plead was not raised in the course of his trial or on appeal to the Full Federal Court. The statement made by Gaudron J, and quoted above, was therefore made in the context of an assertion that Eastman had been unfit to plead at the commencement of his trial and throughout the Crown case. The appeal to the Full Federal Court was an appeal against conviction, and the application for special leave sought to challenge the dismissal of his appeal against conviction. There was no appeal against the sentence imposed by the trial judge, and the application for special leave did not address Eastman’s mental state in the period between the return of the jury’s verdict and sentencing.
As the Code covers the field with regard to fitness to stand trial from the period of the filing of an indictment until either the offender pleads guilty or is found guilty by a jury, there is no room for the application of common law principles during that period. As the Code does not address what procedures should be adopted where an offender becomes mentally ill in the period between a plea of guilty and the passing of sentence, there is scope for the application of common law principles.
There are surprisingly few authorities on the issue. In R v Presser [1958] VR 45 (‘Presser’), at 48, Smith J explained that, to be fit to plead, a person must be able:
…to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand…the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is.…[H]e must…have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
The above passage from Presser was cited with approval by Gaudron J in Eastman and by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 at [8]. It will be observed that the criteria referred to in Presser are generally reflected in those found in s 43J of the Code. It should also be observed that Presser was a case where the question of the accused’s fitness to plead arose at the commencement of the trial and before he was called upon to plead to the indictment.
In the early case of R v Dyson (1831) 7 C & P 305 (‘Dyson’), in directions to a jury empanelled to determine an accused’s fitness to plead to a charge of murder, Parke J quoted from Lord Hale’s Pleas of the Crown, saying:
If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrensy, but be remitted to prison until that incapacity be removed. The reason is, because he cannot advisedly plead to the indictment. And if such a person after his plea, and before his trial, becomes of non-sane memory, he shall not be tried; or if after his trial he become of non-sane memory, he shall not receive judgement; or if after judgement he become of non-sane memory, his execution shall be spared; for, were he of sound memory, he might allege somewhat in stay of judgement or execution.
This procedure was cited with approval by Alderson B in R v Pritchard (1836) 173 ER 135 (‘Pritchard’). In Pritchard the issue of fitness arose before the accused was asked to plead, and in Dyson the issue arose after a plea of not guilty was entered but before any verdict was returned. The statement of Parke J in Dyson, and approved in Pritchard (based upon Lord Hale’s Pleas of the Crown), was therefore dicta in so far as it referred to the duty of the court where the issue arose after verdict and before sentence.
It is worthwhile observing that the passage quoted from Dyson is specifically directed to capital offences, and that the accused in both Dyson and Pritchard were charged with capital offences. It is clear from the passage from Dyson quoted above, that the rationale for ordering an investigation into a person’s fitness after a verdict was returned and before sentencing was to permit a stay of sentencing or execution in capital cases where an offender became mentally ill after conviction because, if the offender were sane, he or she may be able to say something that would result in the death penalty not being imposed or not being carried out. It should also be remembered that, at that time, there was no right of appeal against conviction or penalty in criminal proceedings, the right to such an appeal being first granted in England by the Criminal Appeal Act 1907, 7 Edw 7, c 23.
The passage from Dyson quoted above was subsequently quoted with approval by the Ontario Superior Court of Justice in R v GB [2003] OJ No 784 (‘GB’), but, as the Crown submitted, that decision is of limited utility because it turned on whether the statutory provisions relating to fitness to stand trial, which expressly applied pre-verdict only, deprived the accused of his right to liberty contrary to the principles of fundamental justice and the provisions of the Canadian Charter of Rights and Freedoms (‘the Charter’).
In the subsequent case of R v Jaser, 2015 ONSC 4729 (‘Jaser’) it was accepted by the Ontario Superior Court of Justice that there was common law authority extending the question of fitness to sentence proceedings, but the Court specifically declined to fashion a common law approach to the issue, and instead resolved the issue by reference to the Charter, as had been done in GB.
Whether this Court has jurisdiction (in the sense of a duty as referred to by Gaudron J in Eastman) based in the common law to order an investigation or inquiry into the prisoner’s capacity to give instructions to his lawyers in the sentencing phase of these proceedings is not determined by previous authority. In my opinion, this Court does not have an obligation based in the common law to order such an investigation. The courts in both GB and Jaser referred to Dyson as the basis of what they understood to be the duty to investigate the accused’s fitness in the sentencing phase of criminal proceedings, and in my view the exposition of the law by Parke J in that case, based upon Lord Hale’s Pleas of the Crown was confined to capital cases because of the nature of the sentence to be imposed which, if carried out, would not permit any later review. The absence of any right of appeal made even more acute the need to ensure that the court, and the general public, could be satisfied that everything that could be said on behalf of a prisoner was said before sentence was imposed and carried out.
The way ahead
The prisoner in the present matter may or may not be incapable by reason of mental illness of giving instructions to his lawyers. If he is so incapable, that incapability may be temporary or it may be permanent. If there were evidence that he is currently incapable of giving instructions to his lawyers, and that this incapacity was likely to be of short duration, the appropriate course may be to adjourn the sentence proceedings to determine whether he will regain that capacity within a reasonable time. In the absence of that evidence it is desirable, in my view, to continue with sentencing.
In reaching that conclusion I have taken into account multiple circumstances. The only practical alternative is to stay sentencing and leave the prisoner in custody indefinitely as a person awaiting sentence. This is clearly undesirable. The mandatory sentence for the offence of murder in this Territory is life imprisonment, so no injustice to the prisoner can arise in imposing those sentences: s 157 of the Code. A court imposing a sentence for an offence of murder must nevertheless fix a non-parole period as required by s 53A(1) of the Sentencing Act 1995 (NT) (the standard non-parole period), or it may impose a non-parole period greater or lesser than the standard non-parole period (s 53A(4) and (6)) or it may refuse to set a non-parole period (s 53A(5)). If the prisoner were to be remanded in custody indefinitely pending sentence, no decision could be made regarding the setting of a non-parole period. The prisoner would, of course, then have no right to appeal any determination of a non-parole period or refusal to set a non-parole period. The effect on the prisoner of not proceeding to sentence would be the same as imposing a life sentence and declining to set a non-parole period.
The charges other than murder to which the prisoner has pleaded guilty do not carry a mandatory sentence of life imprisonment. Remanding the prisoner in custody indefinitely without sentence could result in the prisoner serving a longer sentence of imprisonment with regard to those charges than is warranted, or even permitted by law. The prisoner would, of course, have no right to appeal any sentence imposed for those offences as it is not until the imposition of sentence that any such right arises.
It is also notorious that prisoners held on remand have access to fewer programs in prison than sentenced prisoners.
There is an instinctive reticence to imposing sentence in circumstances where a prisoner is incapable by reason of mental illness of fully instructing counsel so as to ensure that all relevant evidence and submissions are before the court (assuming that to be the case). This is particularly so where, as here, the offences are serious. In the present case, however, there are multiple reports already in evidence which provide information regarding the prisoner’s personal and medical history. These reports were tendered without objection when the prisoner was legally represented. The transcript of the evidence taken at the accused’s trial has also been tendered, including the cross-examination of the Crown witnesses by Mr Tippett QC. I am thus informed to some extent about the prisoner’s instructions regarding the Crown case and his subjective circumstances.
In addition, I will be assisted not only by the Crown Prosecutor but also by counsel appearing as amici curiae. I acknowledge the possibility that there may be matters about which the prisoner could provide further information to his lawyers. Assuming that he is currently incapable by reason of mental illness of providing that information to lawyers that he chooses to engage, and assuming that the information is potentially significant to the sentencing process, the prisoner may, at some later time when he is capable of providing instructions to his lawyers, either appeal as of right to the Court of Appeal, or seek leave to appeal out of time. On any such appeal the Court of Appeal may receive further evidence: s 54 Supreme Court Act 1979 (NT). In this way the risk of a miscarriage of justice is greatly reduced.
Conclusion
I am satisfied that I am not obliged by the provisions of the Code or by common law principles to order an investigation into the prisoner’s present capacity to give instructions to his lawyers. Where such an issue arises after verdict or a plea of guilty, there is no clear procedure which should be adopted. Everything will depend on the circumstances of the case, but where, as here, there is no evidence that the incapacity (assuming that to be the case) is likely to be of relatively short duration, justice to a prisoner would ordinarily dictate that the Court proceed to sentence on the information available rather than remand the prisoner for an indeterminate period.
I decline to order an investigation into the prisoner’s fitness to stand trial or to participate in the sentence proceedings.
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