These observations about what might be determined in an inquiry (to demonstrate whether the criminal trial had performed its essential function) accept that the inquiry will address the question of whether the accused had been unfit to plead. Indeed, his Honour uses the appellant's trial to illustrate, hypothetically, what might have happened if the appellant had been unfit to plead. Necessarily, an inquiry about whether a person was unfit to plead can lead, as it did in this case, to a conclusion that the accused (in this case the appellant) was fit to plead. That conclusion established, in the present case, that the trial had performed its essential function, as described by Heydon J.
If it is accepted, as it must be in view of the judgment of the High Court in Eastman v Director of Public Prosecutions (ACT) that an inquiry under s 475 can consider, and a report can determine, whether, as a matter of fact, the accused was unfit or fit to plead, then the formulation of the question in the ruling of 7 August 2001 should not be viewed at as limiting the scope of the inquiry but rather as initiating an inquiry of the type discussed by Heydon J.
We discern no error in the conclusion of the primary judge that it had been open to Miles CJ to conduct the inquiry and report as he did and, in particular, report on the appellant's actual fitness to plead.
We now turn to consider the question of whether the appellant was denied procedural fairness at the inquiry. The issue as articulated by the appellant was that Miles CJ's direction to the Chief Magistrate was ambiguous, that his Honour failed to clarify that direction despite a request to do so, and that the appellant was therefore placed at a disadvantage and denied fairness. In substance, as the Australian Capital Territory put it, the argument was that the appellant had no notice that Miles CJ might find that the appellant was fit throughout his trial or that an unresolved question of fitness did not result in a miscarriage of justice.
Although the scope of the inquiry remained an unresolved issue until the report was made, the primary judge was correct in concluding that the appellant was not denied procedural fairness in the circumstances. It probably would have been preferable for Miles CJ to have made a ruling about the scope of the inquiry at the latest before final submissions concluded and possibly also to have responded to the appellant's request for clarification of the direction to the magistrate, at least by informing the appellant expressly of the potential scope of the inquiry. However, the issue is whether the procedures adopted were unfair to the appellant, taking into account the statutory framework and all the circumstances of the case.
The submissions made in the inquiry by or on behalf of the appellant were largely confined to the issue of whether there was an unresolved question of the appellant's fitness to plead at his trial. However, both written and oral submissions of the appellant's counsel addressed the matter of what should be the proper scope of the inquiry. These submissions were made after the other parties had provided their submissions, in which both contended for an inquiry wider in scope to that for which the appellant contended. In substance, the submissions made by or on behalf of the appellant were confined to the question of whether any issue had arisen about his fitness to plead at the trial. No submissions were made about whether, in fact, he had been fit to plead. It cannot be inferred that the appellant or his counsel were labouring under a misapprehension that the inquiry was not, at least potentially, wider in scope and that it might address issues beyond whether there was an unresolved question of fitness to plead. As the primary judge noted, both the appellant and his counsel were given the opportunity to make submissions about the proper scope of the inquiry and in fact both did so. They also had the opportunity to make submissions, written and oral, on the issues that would potentially be addressed in the report. In all the circumstances, the appellant and his legal representatives could have been under no misapprehension about what the report might, at least potentially, address.
It is true that Miles CJ declined to give a clarifying direction despite the appellant's request that his Honour do so. The appellant submitted in this appeal that the refusal to give a clarifying direction led him to assume that his understanding of how the inquiry should be confined, as articulated in his request for the clarification, was correct. It is difficult to see how such an assumption could have been made. In Miles CJ's ruling given at the time of making his direction on 7 August 2001, his Honour had posed and not answered the questions as to whether issues of actual unfitness should be the subject of the inquiry. It may be noted that the appellant has not pointed to anything in support of his claim to have held any such assumption, other than the supplementary written submissions provided to Miles CJ after the conclusion of oral submissions. There was nothing in his counsel's written submissions or oral submissions to indicate they had been taken by surprise that the scope of the inquiry was a live issue and had been operating under any such assumption. Nor has anything been pointed to concerning the appellant's or his counsel's involvement at the depositional stage that suggests that a view was taken by them that the inquiry was confined to the issue of whether there was an unresolved question and would not look at actual unfitness.
Even if we accept the appellant's claim that he assumed from Miles CJ's refusal to clarify the direction to the magistrate that the inquiry was confined to the narrow question, this would not necessarily point to a denial of procedural fairness. The only possible period during which the assumption could have operated was prior to the receipt of written submissions from the other parties. The stage of the inquiry affected would be the taking of depositions before the magistrate. The magistrate did not take a deposition from the appellant, who, as noted above at [28], gave evidence at a later stage before Miles CJ on the second day of oral submissions. Even if Miles CJ had clarified the scope or potential scope of the inquiry before the taking of depositions, one may question how this could have affected the appellant or his counsel at the depositional stage in a way that could not have been remedied by the opportunity later afforded to them to make written and oral submissions on the issues, at a time when there could have been no doubt as to what the potential issues were. Furthermore, the evidence given by the appellant was given after written and oral submissions were made, at which time there could have been no doubt about the potential issues that could arise in the inquiry.
In reality, nothing was said or done by Miles CJ at any stage that could sensibly have led the appellant to believe that the report would only address the question of whether there was an unresolved issue about fitness to plead and nothing more. The letter of 7 August 2001 to the Chief Magistrate must be read in the context of the direction made the same day (see [25] above). All indications, especially in the period following the filing of written submissions, were that it was a live issue on which very different positions were taken by the appellant on the one hand, and the other parties, on the other. The appellant and his counsel were given the opportunity to make written and oral submissions on the scope of the inquiry, which both did. Equally, the appellant was given the opportunity to make submissions on the wider issues, which the report might potentially address and, on the views of the other parties, should be addressed. It may be thought that not enough was made by or on behalf of the appellant of the opportunity to make submissions in the inquiry on the wider issues. However, procedural fairness is concerned not with ensuring the appellant in fact presents his best case but in affording him a reasonable opportunity to do so: see, for example, Sullivan v Department of Transport (1978) 20 ALR 323. A reasonable opportunity was afforded in this case. The preferable inference to be drawn is that the appellant deliberately elected not to address the question of whether, in fact, he had been fit to plead.
The appeal should be dismissed with costs.