Applicant v Respondent

2 By presentment filed on 21 December 2007 he was charged with murder.

3 On 27 October 2008 a jury of 12 found CJC not fit to stand trial pursuant to s 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the Act').

4 In turn I determined that on the evidence adduced before me CJC was not likely to become fit to stand trial within the next 12 months.

5 On 28 October 2008 the matter came on for special hearing in accordance with s 12(5) of the Act.

If the jury finds that the defendant is not fit to stand trial and the judge determines that the defendant is not likely to become fit within the next 12 months, the Court must proceed to hold a special hearing under Part 3 within three months.

15 Purpose of special hearings

The purpose of a special hearing is to determine whether, on the evidence available, the defendant -

(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.

7 At the suggestion of the prosecution and with the consent of both the prosecution and the defence[1] I dealt with the matter pursuant to s 21(4) which provides as follows:

(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 charge for the offence be tried by a jury.

8 Having heard the evidence I was satisfied the defence of mental impairment was established and directed that a verdict of not guilty because of mental impairment be recorded.

9 In turn, I declared that CJC was liable to supervision under Part 5 of the Act,[2] and made a custodial supervision order pursuant to s 26 of the Act.

10 The Director now makes an application to set aside the orders I made on 28 October 2008, on the grounds that they are a nullity by reason of fundamental procedural irregularity. More particularly, he contends that it was not open to proceed in accordance with s 21(4) upon a special hearing, and that the Act requires a special hearing to be conducted before a jury.

11 Reference was made to R v Brattoli [1971] VicRp 55; (1971) VR 446, in which the Full Court upheld the actions of a County Court judge, in treating a sentence initially passed by him as a nullity in circumstances in which it was fundamentally irregular, and re-sentencing the offender.

12 It is unnecessary for me to address the authorities bearing on the nature of the relief sought by the Director however, because I have formed the view that the procedure that was adopted was not fundamentally irregular. In summary this is because:

(a) the fundamental intent of s 16(1) of the Act has been achieved;

(c) the plain meaning of s 21(2)(b) is that s 21(4) is applicable;

(d) the terms of s 21(4) are apt to embrace the circumstances of a special hearing;

(e) the power given to the trial judge is strictly de-limited;

(f) the consequential provisions of Part 3 do not compel a different conclusion;

(g) the consequential provisions of Part 4 do not compel a different conclusion; and

(h) the extrinsic materials do not directly address the issue and do not compel a different conclusion.

13 I shall deal with each of these matters in turn.

(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.

15 I accept the Director's submission that a special hearing, is as the name implies, a special proceeding intended to provide a procedure by which the case against a person not fit to stand trial can be tested.

16 Nevertheless it is plain that the intention of the act is not that there be fundamentally different procedural frameworks for special hearings and criminal trials which raise the defence of mental impairment. Section 12(5) requires the Court to hold a special hearing under Part 3 but that hearing is to be conducted as nearly as possible as if it were a criminal trial.

18 Moreover it is plain that Part 3 is intended to operate in conjunction with Part 4 of the Act.

19 Part 3 of the Act deals with special hearings and Part 4 with the defence of mental impairment. Nevertheless as senior counsel for the Director conceded in the course of argument, it is plain that Part 3 depends on Part 4 for its meaning and implementation.

20 First, the second purpose of a special hearing as set out in s 15 is to determine whether on the evidence available the defendant is not guilty of the offence because of mental impairment. This purpose can only be given content by reference to s 20 of the Act which is contained in Part 4 and provides for the defence of mental impairment.

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.

21 Secondly, s 21 provides for the evidentiary framework within which the defence of mental impairment is to be assessed:

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.

...

22 Section 23 provides for the effect of a finding of not guilty because of mental impairment.[3]

23 Part 4 thus provides for one of the fundamental concepts with which a special hearing is concerned. It further provides for the evidentiary framework within which the question of mental impairment is to be evaluated. It also provides for the consequences of a finding of not guilty because of mental impairment whether made at trial or at a special hearing.

24 The provisions as to standard of proof are of fundamental importance to the question with which I am concerned. If a jury determines that a person is not guilty of the offence because of mental impairment upon a special hearing held pursuant to Part 3, it does so on the balance of probabilities in accordance with s 21(2) contained in Part 4 of the Act. Conversely, if it finds that the defendant committed the offence charged it must be satisfied beyond reasonable doubt in accordance with s 17(2) which is contained in Part 3. The provisions in both Parts operate together. There is no provision in Part 3 with respect to the applicable standard of proof in relation to a finding of not guilty of the offence because of mental impairment.

25 A similar duality of provisions can be seen in s 18(4) and s 23. Section 18(4) contained in Part 3 governs the obligation to make a declaration or order which flows from a finding pursuant to s 17(1)(c) on a special hearing that a defendant committed the offence charged or an alternative. Section 23 makes the directly parallel provision in Part 4 governing the obligation to make a declaration or order which arises inter alia, if a jury makes a finding pursuant to s 17(1)(b) of not guilty of the offence because of mental impairment.

26 If it is accepted that s 21(2)(b) applies to special hearings (and as I have explained this must be so because it states the relevant standard of proof with respect to the question of whether a person was suffering from a mental impairment at the time of conduct alleged to constitute an offence), then its plain terms refer to sub-s (4).

(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.[4]

27 Prior to the amendments which inserted s 21(4), s 21(2)(b) did not include the phrase 'subject to subsection (4)'. The Director in effect seeks to read it as being in its former form in so far as it relates to special hearings.

28 If the words of s 21(2)(b) are given their plain meaning however, the prescribed mode of determining the question whether a person was suffering from a mental impairment at the time of an alleged offence pursuant to a provision which applies both to special hearings and trials, is expressly subject to sub-s (4).

D The terms of s 21(4) embrace the circumstances of a special hearing

29 It is convenient to repeat the terms of s 21(4).

(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 charge for the offence be tried by a jury.

30 The circumstances of a special hearing fall within the circumstances set out as pre-conditions to a hearing in accordance with s 21(4).

• the procedure was adopted before the empanelment of a jury; and

• the prosecution and the defence agreed that the proposed evidence established the defence of mental impairment.

31 The requirement that 'the defence' agree is apposite to the special hearing situation.

32 It is to be noted that s 21(4) does not speak of a requirement that before the adoption of the procedure the defendant plead not guilty because of mental impairment. The application of the sub-section is not made subject to a plea or other pre-condition which would necessarily exclude a special hearing.

33 The Director has submitted that persons who have been found unfit to stand trial subsequent to the process set out in Part 2 of the Act cannot properly instruct their legal representatives to dispense with a jury. He further submits that the special hearing provisions act to protect the rights of such persons to have their cases determined by a jury.

34 As against these submissions in can be said first that s 21(4) requires the agreement of 'the defence' when both Parts 3 and 4 of the Act refer elsewhere to 'the defendant'. Further no order can be made directing a verdict of not guilty because of mental impairment unless the trial judge is satisfied that the evidence establishes the defence of mental impairment. Conversely of course a jury could in theory make a finding that the defendant committed the offence charged or an alternative in circumstances at a special hearing, where the judge was satisfied that the evidence established the defence of mental impairment. I am not persuaded that s 21(4) materially disadvantages a defendant in any relevant sense.

35 Further, the present case demonstrated the real capacity of this sort of enquiry to cause stress and disturbance to a mentally impaired defendant. During each of the applications before me it was plain that CJC (who appeared by video link) was visibly distressed as was his mother who was present with him. For my own part there are strong reasons of both humanity and public policy, supporting the view that if a person is not fit to take part in a trial, they should not be forced to take part in a special hearing before a jury. These proceedings should be no more of a public spectacle of suffering than is necessary.

36 The Director also submits that the use of the term 'trial judge' in s 21(4) is not appropriate to a special hearing. In my view this submission cannot be sustained in face of the terms of s 16(1) which require a special hearing to be conducted as nearly as possible as if it were a criminal trial. Likewise the requirement that if the trial judge is not satisfied that the evidence establishes the defence of mental impairment, he or she must direct that the charge for the offence be tried by a jury is not in my view inconsistent with Part 3 and in particular the terms of s 16(1) and (2).

E The powers given to a trial judge are strictly de-limited

37 Section 21(4) does not enable a judge to direct a verdict other than that which the parties have agreed the evidence establishes. More particularly it enables the judge to give effect to one only of the three potential outcomes envisaged by s 15, namely not guilty of the offence because of mental impairment. The manifest purpose of the provision is to avoid the need to empanel a jury in cases where it is agreed there is no controversy as to the underlying truth of the matter (as in the present case).

38 It is because the trial judge's power is limited to only one dispositive outcome that the Director is not correct to submit:

If it was intended that a special hearing could be heard by a judge alone then one would have expected the word 'jury' in s 16(2)(f), 17(2) and 18(1) to have been replaced by the word 'court'.

39 Each of these sub-sections is concerned with verdicts not open to a judge pursuant to s 21(4). It is not open to a judge acting in accordance with s 21(4) to bring in a verdict of not guilty of the offence charged, or a verdict that the defendant committed the offence charged or an offence available as an alternative.

40 Section 16 makes provision for the modification of trial provisions before a jury. As I have said it commences by providing pursuant to sub-s (1):

(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.[5]

41 The provisions of sub-ss (2) and (3) are introduced by sub-s (1) and are to be understood as taking effect for the purpose stated in sub-s (1). They modify the usual provisions governing a jury trial to enable a special hearing to be conducted as nearly as possible as if it were a criminal trial.

(2) Without limiting subsection (2), at a special hearing -

(a) the defendant must be taken to have pleaded not guilty to the offence; and

(b) the defendant's legal representative (if any) may exercise the defendant's rights to challenge jurors (either for cause or peremptorily) or the jury;

(c) the defendant 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 360A of the Crimes Act 1958 (adjournment or stay of trial) 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 defendant 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.

43 The commencing words of sub-s (2) 'Without limiting subsection (2) ...' are anomalous. In my view it was intended to state:

This conclusion is not however necessary to my decision. The provision might however be said to illustrate that neither Part 3 nor Part 4 are to be regarded as expressed with complete clarity and precision. A fact that has encouraged the controversy before me.

44 The provisions of s 16(2) are not inconsistent with the s 21(4) provisions. Self-evidently s 16(2)(b) will not bear on the procedure but that does not give rise to a direct inconsistency and it is not necessary it apply for the purpose stated in s 16(1).

45 The provisions of s 16(3) will also not bear on the proceeding, but that will not prevent the special hearing being conducted as nearly as possible as if it were a criminal trial. If the s 21(4) procedure is adopted it will not be necessary to implement s 16(3) 'for the purpose' stated in s 16(1). The procedure provided in s 21(4) is a specific procedure directed to the making of a finding in circumstances in which the issue is limited. The provisions of s 16(3) are the generally applicable provisions where the issue is not so limited upon a special hearing.

46 Section 17 provides for findings 'available to the jury' reflecting the alternatives stated in s 15. It also provides for the standard of proof with respect to the commission of an offence.[6]

47 Section 17 does not provide that upon a special hearing it is a jury which must make all of the findings specified. It provides for a broader range of findings than those 'available' to a judge under s 21(4). As I have said only one of these findings is available to a judge pursuant to the special procedure provided in for in s 21(4).

48 Section 18 provides for the effect of findings by a jury if such are made.

18 Effect of findings

(1) If a jury makes a finding under section 17(1)(a), the defendant 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 defendant 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 defendant is liable to supervision under Part 5; or

(b) order the defendant to be released unconditionally.

49 It may be objected that a finding under s 21(4) does not in terms have the effect provided for by s 18(2). In my view this is the strongest textual consideration favouring the Director's submission.

50 If however the judge directs that a verdict of not guilty because of mental impairment be recorded pursuant to s 21(4)(a), the consequence is the same as that which flows from s 18(2). The finding results in an effective verdict and a declaration must be made pursuant to s 23. Conversely a finding under s 17(1)(c) has the effect stated in s 18(3) and leads to the consequential obligation to make orders pursuant to s 18(4).

51 I am not persuaded that the terms of s 18(2) compel a different construction of s 21(2) other than its plain meaning or compel a construction of s 21(4) inconsistent with its application to special hearings.

G The consequential provisions of Part 4

52 As I have said the terms of s 23 lead to the same consequences whether a finding of not guilty because of mental impairment results from the decision of a jury pursuant to s 17(1) or the finding of a judge pursuant to s 21(4).

53 The Director submits that in the relevant part of the second reading speech for the Crimes (Homicide) Act 2005 concerning the amendment of s 21, the Attorney-General made mention only of jury trials and did not make mention of special hearings.

54 Further, the Victorian Law Reform Commission Report to which the Attorney referred in his second reading speech (and which contained a draft of the amending section) also makes no mention of special hearings. The issue is discussed by reference to 'trials'.

55 I accept that this is so, but this background material does not appear to me to be of any particular utility, when a special hearing is required to be conducted 'as nearly as possible as if it were a criminal trial'. The absence of reference to special hearings in these extrinsic materials is entirely equivocal in the circumstances of the relationship between Parts 3 and 4 of the Act which I have sought to explain.

56 It follows for the above reasons that in my view recourse to s 21(4) of the Act accorded with the fundamental intention of s 16(1). Parts 3 and 4 of the Act are inter-dependent and should be read together. The provisions of s 21(2) apply to special hearings. In turn those provisions directly invoke s 21(4). The powers of a judge acting pursuant to s 21(4) are limited and the language of s 21(4) is apt to embrace the circumstances of a special hearing where the issues are limited in the manner to which it refers. Neither the consequential provisions of Part 3 or Part 4 of the Act compel a different conclusion.

57 Accordingly, I am not satisfied that the procedure adopted was fundamentally irregular. I dismiss the application. Nevertheless it would be appropriate to amend the Act to place the matter completely beyond controversy and address some incidental matters of drafting.

[1] The suggestion was made by Senior Counsel who appeared to prosecute on 27 October 2008 - Tp29; counsel appearing for both the prosecution and defence requested and consented to the procedure on 28 October 2008 - Tp 1 and 2.

23 Effect of finding of not guilty because of mental impairment

If a defendant is found not guilty because of mental impairment, the court must -

(a) declare that the defendant is liable to supervision under Part 5; or

(b) order the defendant to be released unconditionally.

[3] Quoted above 2.

(1) The following findings are available to the jury at a special hearing -

(b) not guilty of the offence because of mental impairment;

(c) the defendant 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 defendant committed the offence charged or an offence available as an alternative.