Zachary Cash v Keith Touro - [2022] ACTMC 13

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Zachary Cash v Keith Touro
Citation:	[2022] ACTMC 13
Hearing Date:	8 April 2022
DecisionDate:	29 June 2022
Before:	Magistrate Morrison
Decision:	See [1] – [4].
Catchwords:	CRIMINAL LAW – JURISDICTION – FITNESS TO PLEAD - Statutory construction of s 335 Crimes Act 1900 (ACT) – Whether s 335 applies to summary only offences
Legislation Cited:	Crimes Act 1900 (ACT), ss 332, 335
Cases Cited:	Mundie v Sullivan [2013] ACTMC 28
Texts Cited:	Explanatory Statement, Crimes (Amendment) Bill 1999 (ACT) Explanatory Statement, Crimes (Amendment) Bill 2004 (ACT)
Parties:	Zachary Ian Cash (Informant) Keith James Tuoro (Defendant)
Representation:	Solicitors W Kukulies-Smith of Director of Public Prosecution (ACT) (Crown) R Mula of Legal Aid ACT (Defendant)
File Number(s):	CC 8497/2021 CC 8498/2021

MAGISTRATE MORRISON

In the course of dealing with an application in these proceedings I made a ruling that the application of s 335 of the Crimes Act 1900 (ACT) (‘Crimes Act’) was not limited to indictable offences that can be heard and determined summarily. I was asked to publish reasons for that ruling. These are those reasons.
Section 335(1) is expressed in these terms:
Fitness to plead—Magistrates Court

(1)This section applies to an indictable offence that can be heard and determined summarily if the Magistrates Court is of the opinion that the case can properly be disposed of summarily having regard to—
(a) any relevant representations made by the accused; and
(b) any relevant representations made by the prosecutor in the presence of the accused; and
(c) the circumstances and, in particular, the degree of seriousness of the case; and
(d) any other circumstances that appear to the Magistrates Court to make it more appropriate for the case to be dealt with on indictment rather than summarily.

Consideration of only the text of the provision would compel a conclusion that the section applies only to indictable offences that can be heard and determined summarily.
I have concluded that, having regard to context and purpose, the proper construction of the section is that it applies to summary only offences and that it should be read as if it opened by saying “(t)his section also applies to an indictable offence that can be heard and determined summarily only if …. “.
It is important at the outset to recognise that s 335 appears in Division 13.6 “Summary proceedings against mentally impaired people”.
Section 332 (headed “Application of div 13.6”) reads:
Application of div 13.6
This division applies to criminal proceedings (not including committal proceedings) with respect to—
(a) summary offences; and
(b) indictable offences that may be heard and determined summarily.
Given the terms of s 332, if s 335(1) did not appear in the Crimes Act there would be no room for argument that s 335 applied to both summary offences and indictable offences that can be heard and determined summarily.
It is the appearance of subsection (1) in s 335 which has given rise to the argument as to the application of the section. My conclusion is that the insertion of subsection (1) is properly construed as restricting the Magistrate Court’s power to deal with indictable offences which can be dealt with summarily under s 335 - the restriction being the section only applies to such indictable offences the court considers can be properly disposed of summarily - rather than as excluding summary only offences.
Putting aside the special arrangements provided for in s 334, it is tolerably clear that division 13.6 is intended to establish a process for:
a.Investigating a defendant’s fitness to plead, and
b.If a defendant is determined to be unfit to plead, the conduct of a special hearing of the type described in s 335(5).
No part of s 335 expressly empowers this court to conduct a special hearing, at least not in the form in which one would expect such a power to be conferred. Nevertheless, such a power can readily be implied from the combination of:
a.The references in s 335(2)(b) and s 335(4)(b) to “after hearing the charge” – (those sections go on to authorise the making of certain orders);
b.The reference in s 335(5) to “(t)he Magistrates Court shall conduct a hearing under this section as nearly as possible as if it were a normal criminal hearing”;
c.The reference in s 315C and s 315D to “…. conduct a hearing under section 335.”; and
d.The absence of any other provision touching on the subject.
My understanding of the submissions is that it is accepted that there is an implied power to conduct a special hearing under s 335. Rather, the submissions were to the effect that the application of s 335 (and the power to conduct a special hearing) was limited to indictable offences that can be heard and determined summarily.
If s 335 applies only to indictable offences which can be heard and determined summarily it follows that there is no power, express or implied, for this court to hold a special hearing in respect of summary only offences when a defendant is found to be unfit to plead. Further, and perhaps more importantly, in such a case there would exist a legislative lacuna – that is there would be no express power for the court to deal with such a defendant in any way.
The provisions dealing with fitness to plead proceedings in the Magistrates Court , were introduced into the Crimes Act in 1999 by virtue of the Crimes (Amendment) Bill 1999. The explanatory statement includes the following:
The key changes made by the bill will:
……
……
· Give the Magistrates Court powers similar to those of the Supreme Court to deal with a defendant in respect of whom the issue of fitness to plead arises;
Most of the criminal charges coming before the Magistrates Court are summary only offences. To construe s 335 as not empowering the holding of a special hearing in relation to such summary offences, when no other power to do so exists, is clearly contrary to the intent expressed in the explanatory statement.
The amending act introduced sections 428WA(1) to (7) into the Act in terms which are not materially different to how s 335 now appears.
The explanatory statement said this about what were the new provisions:
Clause 31 inserts new section 428WA [equivalent to present s 335] to give the Magistrates Court the capacity to conduct hearings where a defendant is unfit to plead and to make the same types of orders in respect of such persons as the Supreme Court can make in respect of an accused who is unfit to plead and found to have committed the act which constituted the offence with which he or she is charged.
New subsection 428WA(1) [equivalent to s335(1)] makes clear that the provisions apply to indictable offences which may be heard and determined summarily only if the Magistrates Court is of the opinion that the case can properly be disposed of summarily.
The two paragraphs above appear separately (but following one another) in the explanatory statement. That they do so, and their overall tenor supports a conclusion that the section 428 (now 335) applies both to summary offences and to indictable offences which can be dealt with summarily (if the latter satisfy the conditions referred to in the section).
Another relevant consideration is the terms of s 315C and 315D to which I have referred above. Section 315C requires the Magistrates Court to conduct a special hearing under s 355 if the court decides that the defendant is unfit to plead (and unlikely to become fit to plead within 12 months).
Section 315D has an equivalent requirement if the unfitness to plead is likely to be temporary but is found to remain upon reinvestigation.
Both s 315C and D fall within division 13.6. As already observed, the division is expressed to apply both to summary offences and indictable offences which may be heard and determined summarily.
There is nothing in s 315C or 315D which limits the type of charges in respect of which the magistrates court must “conduct a hearing under section 335.” It would be incongruous for those sections to (unconditionally) require the conduct of a special hearing under s 355 if s 355 is interpreted not to empower the holding of a special hearing in relation to summary only offences.
In making that observation I acknowledge that in my decision in Mundie v Sullivan [2013] ACTMC 28, I concluded that, in relation to indictable offences which may be dealt with summarily, there are what I described as jurisdictional pre-conditions in s 333 and s 335(1). I concluded there that they are conditions which must be addressed before any fitness to plead investigation is undertaken, again to avoid potential legislative lacunae if a defendant is found unfit to plead and the conditions are not then satisfied.
In addition to all of the above, I note in passing that the explanatory statement to the Crimes Amendment Bill 2004 makes express (albeit somewhat tangential) reference to the Magistrates Court being “able to determine the question of fitness to plead in summary proceedings and proceedings for indictable offences that can be tried summarily”.
The combined effect of considerations of context and purpose referred to above persuade me that s 335 is to be construed as set out in these reasons.

I certify that the preceding [24] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison.

Associate: Xiao Lin King

Date: 29 June 2022