Eastman v The Queen

Eastman v The Queen - [2000] HCA 29 - HCA 2000 case summary — Zoe

[21]

At the commencement of the hearing of the application, senior counsel for the applicant sought to read 10 affidavits. Two of the affidavits were sworn by a psychiatrist, Dr White, who expressed opinions concerning the applicant's mental condition, and his fitness to plead. The remaining affidavits were sworn by a number of legal practitioners, and contained evidence as to the conduct of the applicant in relation to the preparation and conduct of his trial, said to bear upon his fitness to plead.
None of this evidence had been before the Full Court. It was objected to by the respondent. The primary ground of objection was that, upon the authority of the decision of this Court in Mickelberg v The Queen[3], the Court had no power to receive the further evidence on an appeal, and that it would be futile to grant special leave to appeal on the basis of evidence which would not be admissible on an appeal. The arguments involved in this tender of further evidence, and the respondent's objection, raised a constitutional issue, and a number of AttorneysGeneral intervened. Senior counsel for the applicant contended that Mickelberg did not stand in the way of his attempt to lead the evidence and that, even if it did, it should be reconsidered, and not followed.
There were other objections to the evidence. It was observed that the opinions of Dr White were largely based upon assumptions of fact concerning the applicant which were not shown to be true, and that his evidence included a substantial amount of inadmissible hearsay. It was also foreshadowed that, if the new evidence were admitted, counsel would wish to cross-examine some of the deponents, including Dr White, and would challenge Dr White's opinions.
It was decided that the appropriate course was to hear full argument from the parties and interveners upon what might be described as the Mickelberg point. If the evidence were to be rejected on that basis, then it would be unnecessary to deal with other grounds of objection, and no occasion to cross-examine Dr White or any other witness would arise. In that event, the grounds of appeal sought to be raised by the applicant would be considered in the light of the material that was before the Full Court.
It is the opinion of a majority of the Court, consisting of Gaudron J, McHugh J, Gummow J, Hayne J and myself, that the respondent's primary objection should be upheld, and that the further evidence upon which the applicant seeks to rely must be rejected. That being so, the evidence will not be received, and it is unnecessary to consider further questions as to the admissibility or cogency of the evidence, or to permit cross-examination.
My reasons for joining in the majority opinion on this point are as follows. They are based upon the nature of the jurisdiction which is invoked by an application for special leave to appeal to this Court, and upon a long line of authority, of which Mickelberg is a relatively recent example.
The jurisdiction invoked by an application for special leave to appeal is that conferred by s 73 of the Constitution. It is a jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State.
In Davies and Cody v The King[4], Latham CJ said:

[23]

This proposition, and the corollary, that in the exercise of its jurisdiction under s 73 the Court does not act upon new evidence, was established at an early stage in the Court's history. In 1910, in Ronald v Harper[5], an appeal from the Supreme Court of Victoria, there was an attempt to lead evidence for the purpose of showing that evidence given at first instance was perjured. The Court held that it had no power to receive the new evidence. To like effect were the decisions in Scott Fell v Lloyd[6], in 1911, and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan[7], in 1931. In Grosglik v Grant (No 2)[8], in 1947, Latham CJ, Rich, Dixon, McTiernan and Williams JJ said: "Fresh evidence cannot be admitted upon appeals to this Court".
Appeals are creatures of statute. It is not uncommon for intermediate appellate courts in Australia, including Courts of Criminal Appeal, to have conferred upon them, by statute, power to receive and act upon evidence which was not before the court of first instance. When such a power is exercised, what is involved is an exercise of original rather than strictly appellate jurisdiction. The relevant statute ordinarily defines the conditions and limits of the exercise of the power. There is no statute which confers such power upon this Court, or which regulates the circumstances in which further evidence might be received. The authorities referred to above do not deny the capacity of Parliament to enact such legislation, at least in relation to appeals from courts exercising federal jurisdiction, but it has never done so.
In Courts of Criminal Appeal which, by statute, are given such power, an opportunity exists for an appellant, who has been convicted of a crime, to seek to demonstrate, by evidence not adduced (and, usually, not available) at the trial, that there has been a miscarriage of justice. Such an opportunity, by its nature, only applies in relation to new evidence which is available at the time of the hearing of the appeal. It is not unusual for there to be claims of miscarriage of justice based upon material which first became available only after the conclusion of an unsuccessful appeal; sometimes many years later. In this country, that situation is addressed in various jurisdictions by statutory provisions empowering executive or curial inquiries into alleged miscarriages of justice. An example is to be seen in the provisions of Pt 13A of the Crimes Act 1900 (NSW). Although those provisions may give rise to a judicial inquiry, and empower the Court of Criminal Appeal, following such an inquiry, to quash a conviction, the process could be described as an "appeal" only in the loosest and most colloquial sense. Nevertheless, the availability of such procedures is part of the background against which the issue presently under consideration arises. Another part of the background is to be found in the principles governing the circumstances in which a Court of Criminal Appeal may re-open its own decisions[9]. Once again, what is involved in such a procedure is in no legal sense an appeal, and the time limits and procedures which govern the appellate process do not apply.
The line of authority going back to 1910, concerning the power of this Court, in the absence of any statutory provision, to receive further evidence when exercising its jurisdiction under s 73 of the Constitution, was opened for reconsideration by this Court in 1989 in Mickelberg[10], an application for special leave to appeal in a criminal case. By a majority of four to one[11], the Court decided that on an appeal under s 73 of the Constitution from a decision of a State court exercising State jurisdiction this Court has no power to receive new evidence. The reasoning upon which that conclusion was based is equally applicable to an appeal from another federal court, or a court exercising federal jurisdiction.
For almost a century, appeals, including criminal appeals, in this Court have been conducted and decided upon the basis of the principles reconsidered and reaffirmed in Mickelberg. The reasons underlying those principles were fully explained in Mickelberg. That a different view is open is shown by the dissenting opinion in that case; but the issue should now be regarded as settled. The point, which is fundamental to the exercise by the Court of its appellate jurisdiction, should not be treated as open for further consideration every time a change in the composition of the Court encourages counsel to attempt to re-argue what is, by now, a very old question.
In Mickelberg[12], Mason CJ noted that one of the propositions underlying this uninterrupted stream of authority is that a court exercising strictly appellate jurisdiction is called upon to decide whether there was an error on the part of the court below, considering the material which was before the court below.
In the present case, against the possibility that the new evidence tendered in this Court would be rejected, the Court invited full argument from counsel (as if on appeal) on the question whether, on the material that was before the Full Court of the Federal Court of Australia, that Court could, and should, itself have made inquiries about, and considered, the applicant's fitness to plead or stand his trial.

[46]

Significantly, Dr Milton did not say or suggest that the applicant would be unfit to be tried. By hypothesis, people who, successfully or unsuccessfully, raise an issue of diminished responsibility are regarded as fit to be tried, as are people who suffer from many forms of emotional disorder or psychiatric illness, which may explain why they have committed crimes, and which may be a material matter to be considered on sentencing.
The argument presently under consideration does not seek to attribute error to the trial judge. It proceeds upon the assumption that, on the material available to him, on the evidence at the trial, and on his observations of the conduct of the applicant, he was not in error in failing to raise an issue as to the applicant's fitness to plead and in failing to refer the question to the Mental Health Tribunal.
The Full Court of the Federal Court was exercising a jurisdiction conferred by s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). This was said, in Chamberlain v The Queen [No 2][20], to comprehend a power to "entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous", and a power to set aside a verdict whenever the Federal Court is of the opinion that there has been a miscarriage of justice.
No ground of appeal before the Full Court, and no submission made to that Court, asserted that there was a question about the applicant's fitness to plead, or that there was a miscarriage of justice because such a question had not been referred to the Tribunal. Nevertheless, it is contended, the Full Court had both the power and the duty to inquire into that matter itself and that its failure to do so involved error requiring correction by this Court.
It is far from clear what, in practical terms, is suggested to be the course the Full Court was obliged to take in the circumstances. Let it be supposed that the material in Dr Milton's reports, coupled with the evidence at the trial, and the information before the Full Court as to the applicant's conduct, were such as would be expected to lead an appellate court to wonder whether this was a case in which, if an issue as to fitness to plead had been raised at the trial, it might possibly have been resolved adversely to the prosecution. It cannot be, and was not, argued that, in the present case, on the material available to the Full Court, there was only one possible outcome of an inquiry by the Mental Health Tribunal. What, then, would have been the issue for the Full Court to decide? And how would it have gone about deciding it?
It is one thing to say that s 24(1)(b) of the Federal Court Act empowers the Court to set aside a verdict which involves a miscarriage of justice. It is another thing to say that it obliges the Court, of its own motion, to embark upon an investigation of the fitness to plead of an appellant who denies unfitness, who is prosecuting his appeal upon the basis that he is competent to appeal and to instruct counsel, and who shows no interest in co-operating in any inquiry into his mental condition. (It may be added that the proceedings in this Court were fully adversarial in nature and were conducted upon the assumption that the applicant was competent to instruct counsel, and to make decisions as to how his case should be argued. This Court did not regard itself as entitled or obliged to investigate the validity of that assumption.)
The argument for the applicant must involve two premises. The major premise is that, if the material before the Full Court raised a real and substantial question as to the applicant's fitness to plead then, even though neither party sought to pursue the question, the Full Court had both the power and the duty to pursue it. The minor premise is that the material in Dr Milton's reports, considered either alone or in conjunction with the evidence at the trial and the information available to the Full Court as to the applicant's behaviour, raised such a question.
If the major premise is valid, it is not easy to understand why it should be limited to the issue of fitness to plead. The circumstance that such an issue can more readily be seen to be, in some degree, apart from the adversarial trial process, does not make it so different from any other issue giving rise to a potential miscarriage of justice that it stands alone. If it is the duty of a Court of Criminal Appeal, regardless of the issues raised by an appellant, to discover and investigate one possible form of miscarriage of justice, then the duty ought to extend to investigating, of its own motion, any form of miscarriage of justice. That is not a function which is conferred by s 24(1)(b) of the Federal Court Act.
As to the minor premise, no issue of fitness to plead having arisen at the trial, and Dr Milton's reports not having addressed any such issue (but, rather, having been written on the assumption that a trial could occur), the most that can be said is that the Full Court had before it material which indicated that the applicant suffered from a form of mental disorder. That did not mean that he was not fit to plead. Appellate courts frequently have before them material of that nature, without it being suggested that they are, on that account, obliged to raise the issue themselves and then pursue it, without the assistance of the parties. Much of the information available to the Full Court indicated that the applicant was fit to plead. The fact that some other information may have suggested the possibility that he was unfit to plead, a possibility which neither party to the appeal was advancing for consideration, did not mean that, in the appellate context, a question of fitness to plead arose for examination.
The applicant's argument fails at both levels.

[48]

The applicant's trial, which was presided over by Carruthers AJ, commenced on 16 May 1995 and lasted for five and a half months, concluding with his conviction on 3 November 1995. The trial was marked by various outbursts from the applicant and the frequent withdrawal of instructions from his legal representatives. From time to time, he represented himself either until he re-instructed those whose services he had dispensed with or until he engaged new legal representation[22]. He was unrepresented from 10 October until the conclusion of his trial on 3 November 1995.
It will later be necessary to give a more detailed account of the behaviour of the applicant at his trial. For the moment, however, it is sufficient to note that neither the applicant, his various legal representatives, nor prosecuting counsel raised any question during the trial as to his fitness to plead. Nor did the trial judge who, in his remarks on sentence, indicated that he regarded the applicant's conduct as an attempt "to avoid the consequences of the damning nature of the Crown evidence by adopting a process of manipulating the trial process and attempting to frustrate its progression in any conventional manner."
On appeal to the Federal Court, an argument was put that there had been a miscarriage of justice because of "[t]he inability of the [applicant] to adequately prepare his defence and instruct Counsel at trial by reason of actions by the Prosecution". In essence, the argument related to police surveillance, including electronic surveillance, to which the applicant had been subjected for some years and which, according to the argument, resulted in conduct from which an adverse inference might be drawn but which could not properly be explained to the jury. It will be necessary to refer again to this aspect of the appeal to the Federal Court. For present purposes, however, it is sufficient to note that, although there was an issue as to the ability of the applicant to prepare his defence and to instruct counsel, no specific issue was raised as to his fitness to plead. In fact, counsel expressly rejected any suggestion of mental illness which might bear on that question[23].
By his application for special leave to appeal to this Court, the applicant raises, for the first time, the question of his fitness to plead at the time of his trial. As originally cast, his application seeks leave to appeal in order to present evidence to this Court on that issue. The application was referred to the Full Court to determine whether, if special leave were granted, this Court could or could not receive that evidence. If it could not, the grant of special leave on the basis upon which it was originally sought would be futile.
At the conclusion of the argument as to this Court's ability to receive evidence on the issue of the applicant's fitness to plead, the Court invited argument on the question whether there was material before the Federal Court such that it should have raised that issue of its own initiative. The application for special leave to appeal was subsequently argued on the basis that, if the Federal Court should, itself, have raised the issue of the applicant's fitness to plead, this Court should proceed as if an appeal had been instituted and allow the appeal.

[56]

Section 428E of the Act acknowledges in plain terms that the issue is whether "there is a question as to the person's fitness to plead", not whether he or she is, in fact, fit to plead or, even, unfit to plead. It also acknowledges difficulties that can sometimes arise when a person is not fit to plead by allowing that the issue can be raised by a party or by the court and, thus, need not be raised by the accused or by his or her legal representatives.
The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial[31]. Certainly, that is the position where the issue of fitness to plead is raised before or during a trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, "no proper trial has taken place [and the] trial is a nullity."[32] To put the matter another way, there is a fundamental failure in the trial process.
The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open[33]. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum, "the trial [is] a nullity", the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law[34]. That is the basis upon which this Court proceeded in Kesavarajah v The Queen[35] where the question of fitness to plead should have been but was not submitted to the jury for determination.
Traditionally, an accused person has not been put on trial unless fit to plead because of "the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing"[36]. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.
It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication[37]. There is nothing in s 428E to suggest any departure from the common law's guarantee of a fair trial according to law or, if there be a difference, the common law's requirement that an accused person not be tried unless he or she is fit to plead. On that basis, s 428E is to be construed as doing no more than directing the trial judge as to the steps to be taken if "on the trial of a person ... the issue of fitness to plead ... is raised". It says nothing as to the situation if, for whatever reason, there is a question as to the accused's fitness to plead but the issue is not raised at the trial.
The meaning and operation of s 428E(1)(b), which is concerned with the trial judge's satisfaction "that there is a question as to the person's fitness to plead", should also be noted. The statutory scheme considered in Kesavarajah required the question of fitness to plead to be referred to a jury. It was held in that case that the issue had to be left to the jury "unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried."[38] Because the issue to which s 428E directs attention is neither fitness to plead nor unfitness to plead, but the existence of a question as to fitness to plead, a court will necessarily be satisfied for the purposes of that section that there is such a question unless the Mental Health Tribunal could not reasonably find the accused not fit to plead.

[61]

In Mickelberg v The Queen[39], this Court affirmed its earlier decisions that s 73 of the Constitution does not authorise the reception of fresh evidence on appeal. The decision in Mickelberg was not based on any conception as to the nature of an appeal as at 1900, although that was a matter referred to by Mason CJ[40]. The basis of the decision was the distinction between this Court's original and appellate jurisdiction[41], original jurisdiction being conferred by s 75 and pursuant to s 76 of the Constitution, whilst appellate jurisdiction is conferred by s 73.
In Mickelberg, Toohey J and I pointed out that when an appellate court reaches a decision by reference to evidence called for the first time in that court, it is exercising original jurisdiction notwithstanding that the proceeding is called an appeal[42]. Because ss 75 and 76 constitute a complete and exhaustive statement of this Court's original jurisdiction[43], s 73 does not authorise the receipt of evidence on appeal from a State court exercising non-federal jurisdiction. And because s 73 does not relevantly distinguish between appeals from State courts exercising non-federal jurisdiction and appeals from courts exercising federal jurisdiction, that provision must be construed as not authorising the receipt of further evidence no matter the court from which the appeal is brought.
To say that s 73 does not authorise the receipt of further evidence in the exercise of this Court's appellate jurisdiction is not to say that Parliament may not confer original jurisdiction with respect to the matters specified in ss 75 and 76 of the Constitution in such a way that, in conjunction with an appeal from a court exercising federal jurisdiction, this Court may receive further evidence and, having regard to that evidence, set aside the decision of the court from which the appeal is brought or, if it be appropriate, substitute its own decision in the matter[44]. In my view, there is no constitutional inhibition on the Parliament legislating to that effect.
Further, the Parliament can, in my view, legislate to enable this Court to receive further evidence in respect of matters which originate in the courts of a Territory. That is because, as I explained in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[45], the existence of a Territory court is ultimately sustained by a law under s 122 of the Constitution and the rights, duties and obligations in question in a matter before a Territory court must ultimately depend for their enforcement on the law by which the existence of that court is sustained. They, thus, arise under that law. And for the reasons I explained in Northern Territory v GPAO[46], a law under s 122 is a law of the Commonwealth for the purposes of s 76(ii) of the Constitution.
Moreover, it may be as Toohey J and I pointed out in Mickelberg[47], that so far as concerns appeals with respect to matters falling within s 75 of the Constitution, s 75 is itself a source of power for this Court to receive further evidence on the hearing of an appeal in a matter falling within that provision. However, the present matter is not one falling within s 75.
It follows from what has been written that, if special leave were granted to the applicant, this Court could only receive further evidence on the hearing of an appeal if it were to depart from its decision in Mickelberg or if the Parliament has authorised that course.
There are two arguments favouring reconsideration of the decision in Mickelberg. The first is that s 73 should be construed in the light of the modern meaning of an appeal which, it is said, encompasses an appeal in which an appellate court can receive further evidence and, having regard to that evidence, set aside the decision under appeal. However, that argument overlooks the distinction which Ch III clearly draws between original and appellate jurisdiction.
The second argument favouring reconsideration of Mickelberg is that, in the words of Deane J in that case, this Court may be fettered in its "ability ... to do justice in the exercise of its general appellate jurisdiction under the Constitution."[48] Indeed, it might be thought that this case establishes that very proposition. This notwithstanding, it is this Court's duty to do justice according to law and under the Constitution. It is only if s 73 is capable of being construed so as to permit of the receipt of further evidence that this Court should reconsider Mickelberg.
Section 73 must be construed, in my view, in the context of the provision made by ss 75 and 76 of the Constitution with respect to the original jurisdiction of this Court. When so construed, s 73 does not permit of any conclusion other than that reached in Mickelberg. Accordingly, the evidence which the applicant wishes to place before this Court can be received on appeal only if the Parliament has legislated to that effect.
The only presently relevant provision with respect to appeals from the Federal Court to this Court is s 33 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). That section provides, in sub-s (1), as follows:

[69]

By s 28(3) of the Federal Court Act, the Federal Court may exercise the powers conferred by s 28(1) "notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision."
It was held by the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher that an appeal under s 24 of the Federal Court Act is "neither a trial de novo nor a trial of the case afresh on the record"[49]. So much may be accepted for the purposes of this matter. However, it is a fundamental rule of construction that statutory provisions conferring powers on a court are not to be read as subject to limitations which are not required by their terms[50].
When ss 24(1), 27 and 28(1) and (3) of the Federal Court Act are construed on the basis that they are not subject to limitations which their terms do not require, it is clear that the Federal Court has power to set aside a verdict on the ground that there was a fundamental failure in the trial process and, subject to hearing the parties on that issue, to do so whether or not the Notice of Appeal is directed to that issue. Moreover, it has power to receive evidence on the issue.
Earlier, I drew attention to the fact that, if there is a fundamental failure in the trial process, an appellate court proceeds on a different basis from that on which it proceeds when there is an error on the part of the trial judge or a blemish in the trial. In the former situation, there is no occasion to apply the proviso to the common criminal appeal provisions by asking whether the appellant lost a chance of acquittal that was fairly open. There is another difference. There can be a fundamental failure in the trial process without any error on the part of the trial judge. For example, there may be a failure of that kind because, without the knowledge of the trial judge, the jury is not properly constituted[51].
In the present case, the trial judge would have been in error if, after an issue was raised as to the applicant's fitness to plead, he failed to take the steps required by s 428E(1) of the Act[52]. So, too, he would have been in error if, although neither the prosecution nor defence raised that issue, there was material which suggested that there was such an issue and the trial judge failed to raise it. However, no suggestion is made that there was any material of that kind. Thus, the only question that arises is as to the role of the Federal Court if there was material before that court suggesting that there was an issue as to the applicant's fitness to plead at the time of his trial.
Two matters which were earlier referred to bear directly on the role of the Federal Court. The first is the basic tenet of the common law that, unless a person is fit to plead, there can be no trial and its corollary that, if he or she was not fit to plead, there was no trial or, as it is generally put, there was a fundamental failure in the trial process. The second is that a person who is not fit to plead may lack the capacity to raise that issue whether at trial or on appeal. In that context, it is convenient to note the manner in which the law protects a person's right not to be put on trial unless fit to plead.
Unless there is material to suggest otherwise, a person is presumed fit to plead. And that is so both at trial and on appeal[53]. 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.
Once it is accepted that the law acknowledges that a person who is not fit to plead may also lack the capacity to raise that issue, it must follow that the role of an appellate court differs from that of a trial judge in one respect only, namely, that it looks to the past whereas the trial judge is concerned with events as they are happening. More precisely, if there is material suggesting that the appellant was not fit to plead, an appellate court must inquire whether, at the time of the trial, the appropriate tribunal could not reasonably have found the appellant not fit to plead.
Where, on appeal to the Federal Court, there is material suggesting that an appellant was not fit to plead at his or her trial, that court may, if necessary, appoint an expert under O 34 r 2 of the Federal Court Rules[54] to inquire into and report on the question. If after inquiry, it is determined that it cannot be said that the appropriate tribunal could not reasonably have found the appellant not fit to plead, the verdict must be set aside and an order made for a new trial at which, if there is still an issue as to his or her fitness to plead, it can be properly determined.

[74]

The Federal Court noted that the frequent changes in legal representation were "indicative of the [applicant's] inability to work in harmony with his lawyers."[58] It also noted that, during his trial, the applicant "made vile, foulmouthed, vituperative comments"[59] and that "there were occasions when [he] was invited by the trial judge to cross-examine a witness, only to be met with a tirade of abuse."[60]
Standing alone, the events recorded by the Federal Court are capable of being viewed as a manipulative attempt to subvert the trial. Particularly is that so, if, as was put in argument in this Court, the applicant displayed a high order of intelligence in the way he put various arguments during the period when he was unrepresented. However, there was material before the Federal Court which was capable of suggesting another explanation for the applicant's behaviour.
As already mentioned, the applicant was under surveillance, including electronic surveillance, for some time prior to his trial. It emerged during the trial when the applicant cross-examined a prosecution witness that that surveillance had been undertaken, at least in part, because of concerns that had been raised with investigating police by Dr Milton, a psychiatrist who, apparently, had been retained to advise them[61]. Dr Milton's reports were produced by the prosecution and marked for identification, but not tendered in evidence[62]. Thus, it may be taken, the contents of those reports did not come to the attention of the trial judge.
In the Federal Court, Dr Milton's reports were received for the purpose of enabling an argument to be put on ground 13 of the grounds of appeal which raised, albeit not directly, the question of the applicant's surveillance. That is the ground which complained of "[t]he inability of the [applicant] to adequately prepare his defence and instruct Counsel at trial by reason of actions by the Prosecution".
The reports of Dr Milton span a period from 20 February 1989 until 4 September 1992, less than three years before the applicant's trial commenced. In his first report, Dr Milton noted that a Dr McDonald, who, at one stage, had been the applicant's treating doctor, concluded that he was "suffering from paranoia, a rare psychotic condition characterised by well systematised paranoid delusions."
In his second report, Dr Milton noted that some of the recorded material suggested that "some of [the applicant's] utterances while alone [might be] a response to hallucinatory voices" and expressed the opinion that the applicant manifested "at the very least a severe form of the condition known as paranoid personality". Later in that report, he expressed the view that the applicant "should ... be regarded as psychotic (ie insane) ... the paranoid features of his disorder and his high intelligence allowing the more serious aspects of his condition to be concealed." He added that he inclined to the view earlier expressed by Dr McDonald that the applicant "suffer[ed] a paranoid psychosis and [would] eventually need to be institutionalised".
In a report of 6 September 1990, Dr Milton noted the possibility that the applicant was taking "Largactil or Melleril, both major tranquillisers used in severe mental disorders." Later, in January 1992, he recorded that the applicant's emotional disorder was "sufficiently severe as to be likely to qualify for a defence of diminished responsibility were he to face trial for Mr Winchester's murder." In his final report of 4 September 1992, he noted certain claims made by the applicant and described them as "the typical comments of a paranoid person". He again repeated his view that the applicant was "for practical purposes, psychotic, ie out of touch with reality", adding, however, that it would be difficult "to substantiate [that opinion] in terms of the ... Mental Health Act".
Dr Milton's reports suggest the possibility of a different explanation for the applicant's behaviour at trial from that adopted by the trial judge. They suggest a mental illness that might have worsened with the passage of time. And given that possibility, they suggest that the applicant might not have been capable of performing some or all of the functions identified in Presser. They, thus, raise the possibility that he might not have been fit to plead at the time of his trial.

[75]

Because the material before the Federal Court raised the possibility that the applicant might not have been fit to plead at the time of his trial, that court, of its own initiative, should have raised the issue of the applicant's fitness to plead and thereafter proceeded to take evidence and to determine whether, at the time of his trial, there was a question as to his fitness to plead.
Special leave should be granted so far as concerns the question whether there was material before the Federal Court raising an issue as to the applicant's fitness to plead and the appeal treated as instituted instanter. The appeal should be allowed, the order of the Federal Court dismissing the applicant's appeal should be set aside and the matter remitted to that court for further hearing and determination as to whether there was a question as to the applicant's fitness to plead at the time of his trial.
McHUGH J. The applicant seeks special leave to appeal against an order of the Full Court of the Federal Court of Australia which dismissed his appeal against a conviction for murder after a trial before a jury in the Supreme Court of the Australian Capital Territory. The ground of the application is that the Full Court erred in failing to determine whether the trial judge had erred in not investigating whether the applicant was unfit to plead to the charge. If special leave to appeal were granted, the applicant would seek to lead evidence in this Court tending to prove his alleged unfitness to plead. To make good his claim that the case is one for the grant of special leave to appeal, the applicant also wishes to put that evidence before this Court on the leave application.
In my opinion, the application must be dismissed on the ground that this Court, when hearing an appeal, has no power to receive evidence that was not before the court whose order is the subject of the appeal. Once that conclusion is reached, the grant of special leave to appeal would be futile because an appeal could not succeed. Nor do I think that special leave to appeal should be granted to determine whether, on the materials before the Full Court, it should have examined whether the trial judge erred in not investigating the issue of the applicant's fitness to plead. Fitness to plead was not an issue before the trial judge or the Full Court. That being so, the Full Court made no error. Because the applicant cannot point to any error by the Full Court, this Court should not grant special leave to appeal to deal with a question raised for the first time in this Court even if our appellate jurisdiction extends to a case where the point has not been raised in any court before the matter reached this Court.

[85]

When the Constitution was enacted in 1900, a grant of appellate jurisdiction was not seen as carrying with it a power to receive further evidence[63]. An appeal meant[64] and, in my view, still means "the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below." (emphasis added) When the appeal is an appeal in the true sense, therefore, no appealable error exists if the trial court has correctly found the facts on the material before it and correctly applied the law to those facts in the course of deciding the issues raised before it for determination. Because that is so, the grant of appellate jurisdiction to a court does not authorise it to decide the case on the basis of a change in the law since the original decision was made[65]. Nor does a grant of appellate jurisdiction authorise it to hear evidence that was not before the court whose order is the subject of appeal[66]. As Isaacs J pointed out in Werribee Council v Kerr[67], "[t]he appellate Court judges for itself whether there has been an error from the materials which were before the Court below, so far as it can".
Authority for an appellate court to receive further evidence must come from a grant of legislative power in addition to a mere grant of appellate jurisdiction. It does not come from the simple grant of appellate jurisdiction because an appeal is the right of entering a superior court to redress the error of the court below[68] and whether that court erred is to be determined on the materials before it[69]. The power to receive further evidence is usually expressly granted but it may be implied where the appeal is stated to be one by way of re-hearing[70]. There does not appear to be any case where a court has held that the simple grant of appellate jurisdiction carries with it the right to admit further evidence in hearing the appeal. Furthermore, where a court is given jurisdiction to hear "appeals" but with power to re-hear the matter or to take new evidence, it is not exercising appellate jurisdiction in its true sense. In such cases, as Jessel MR pointed out in Quilter v Mapleson[71], the jurisdiction exercised by the appellate court is an amalgam of appellate and original jurisdiction.
Most appellate courts today are given a statutory power to receive further evidence on appeal. In some cases, if the appeal is by way of re-hearing, it may be possible to infer an implied power to receive further evidence. When such a power is conferred, expressly or inferentially, the "appellate" court decides the case on all the facts as it finds them to exist as at the date of hearing. But the court is not exercising appellate jurisdiction in its true sense.
When no statutory power to receive evidence has been conferred, the court must decide the case on the basis of the evidence before the trial court. In such cases, a further question frequently arises as to whether the appeal is an appeal in the true sense, that is, an appeal decided on the facts and law as they existed at the date of the lower court's order or an appeal by way of re-hearing. If the appeal is by way of re-hearing, the appellate court decides the case on the law as it applied at the date of its order disposing of the appeal.
The jurisdiction which s 73 of the Constitution confers on this Court is jurisdiction "to hear and determine appeals". The section confers no express power to receive further evidence in hearing an appeal. That being so, this Court has consistently taken the view[72] that s 73 gives the Court no jurisdiction to decide an appeal on the basis of evidence that was not before the court whose order is the subject of appeal. That view of s 73 was recently confirmed in Mickelberg v The Queen[73].
The decisions in Mickelberg and the earlier cases accord with the division made by Ch III of the Constitution between original and appellate jurisdiction. By exercising the powers referred to in ss 75, 76 and 77 of the Constitution, the Parliament can authorise a federal court other than the High Court to review a decision and call the review "an appeal" even though Parliament authorises the court to hear new evidence or re-hear the matter. The jurisdiction so conferred will be authorised by s 77(i) of the Constitution, but it will not be appellate jurisdiction in the true sense even if Parliament calls the matter in respect of it an appeal. It will be original jurisdiction or, depending upon the powers of the reviewing court, a combination of original and appellate jurisdiction, the power conferred on the Parliament by s 77(i) in respect of federal courts other than the High Court being wide enough to confer any form of appellate jurisdiction on those courts[74].
Subject to the Constitution, the Parliament may also be able to give this Court a similar power of review and call it "an appeal". But, assuming that the grant of jurisdiction is not invalid by reason of a negative implication in s 73 that the Court cannot "review" a decision other than by way of appeal, the plain words of ss 75 and 76 show that the grant of such a jurisdiction to this Court could only be original jurisdiction. It could not be appellate jurisdiction because s 77(i) does not apply to this Court and ss 75 and 76 would be the only source of power for such a jurisdiction. The jurisdiction conferred by s 73 is true appellate jurisdiction and any other jurisdiction conferred on the High Court can only be original jurisdiction, whatever label Parliament places upon it.
In my opinion, the earlier cases and Mickelberg correctly establish that in s 73 of the Constitution "appeal" means an appeal in its true sense. Not only is the ordinary meaning of "appeal" in a legal context "the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below"[75], but the Constitution draws a distinction between the original and appellate jurisdiction of this Court. Add to those matters the omission in the Constitution of any power to admit further evidence and the knowledge that in 1900 a simple grant of appellate jurisdiction required the appellate court to determine whether the decision appealed against was rightly decided upon the facts and the law existing at the time of the decision[76], and the case for concluding that "appeal" in s 73 is an appeal in the true sense becomes irresistible.
Moreover, there is a good reason why the framers of the Constitution may have preferred that the right of appeal to this Court should be an appeal in the true sense rather than an "appeal", which would be an amalgam of original and appellate jurisdiction, with the right to adduce fresh evidence. If s 73 had contemplated such an appeal, the laws governing the admissibility of evidence on the appeal might depend on federal law, not State law, unless the federal Parliament made State law applicable. The result might be that the rights of the citizens of the States in areas of State law would eventually be determined on evidence that, for one reason or another, could not be admitted in the courts of the States. It was one thing for the people of the States to have their cases finally determined by this Court on evidence adduced in accordance with the laws and policies of the States governing those cases at the time that they were heard in the States; it was another matter altogether to have their cases determined in accordance with evidence adduced pursuant to a combination of State and federal law, and in accordance with what happened to be the substantive State law when this Court heard those cases.
In Mickelberg, Deane J dissented. His Honour thought that the appellate jurisdiction referred to in s 73 of the Constitution carried with it the right to admit further evidence because:

[90]

But with great respect to his Honour, the statement that s 73 was "clearly intended" to give this Court an appellate jurisdiction in State matters equivalent to that which the Privy Council had in 1900 is merely an assertion. Moreover, in the light of the first and last paragraphs of s 73, it seems a contestable proposition. The last paragraph gave the Parliament the power to impose different "conditions of and restrictions on appeals" to the High Court from those which governed appeals to the Privy Council. Although the subject matters of those appeals could not be abolished by reason of the second paragraph of s 73, the conditions and restrictions in respect of such appeals could be altered. By the imposition of different monetary limits and other restrictions and conditions, the Parliament could prevent appeals from the States to the High Court which could nevertheless be taken to the Privy Council. Moreover, subject to the prohibition in the second paragraph, the Parliament could regulate and restrict appeals to this Court from the State Supreme Courts by reason of the first paragraph of s 73. Ironically, if s 73 did permit the adduction of fresh evidence, the Parliament could almost certainly have provided that such evidence could not be adduced in a s 73 appeal[81]. Furthermore, the Imperial Parliament and the State legislatures[82] could act so as to make the nature of appeals to the Privy Council substantially different from that of an appeal to the High Court.
The most that can be said is that the framers of the Constitution intended in 1900 that, if the High Court had then existed, it should have the same appellate jurisdiction as the Privy Council. But to say that is not to say very much. The framers of the Constitution must have known that, by the time this Court was created, the actions of the Parliament, the United Kingdom Parliament or the State legislatures could have resulted in substantial differences between the appellate jurisdiction of the High Court and the Privy Council.
There is a more fundamental objection to using the jurisdiction of the Privy Council as an indicator of this Court's appellate jurisdiction. The jurisdiction of the Privy Council was so different from that conferred on this Court by s 73 of the Constitution that the power of the Privy Council to receive further evidence is hardly persuasive of the nature of this Court's appellate jurisdiction.
Section 3 of the Judicial Committee Act 1833 (Imp)[83] provided that all "appeals or complaints in the nature of appeals whatever" which might "be brought before His Majesty or His Majesty in Council from or in respect of the determination, sentence, rule, or order of any Court, judge, or judicial officer" were to be "referred by His Majesty to the said Judicial Committee of His Privy Council". Section 4 provided that it "shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit". (emphasis added)
It was against this background that s 7 of the Judicial Committee Act provided that it should be "lawful for the said Judicial Committee, in any matter which shall be referred to such Committee, to examine witnesses by word of mouth ... or to direct that the depositions of any witness shall be taken in writing". Section 8 empowered the Judicial Committee of the Privy Council "to direct that such witnesses shall be examined or re-examined, and as to such facts as the said Committee shall seem fit, notwithstanding any such witness may not have been examined, or no evidence may have been given on any such facts in a previous stage of the matter". Section 8 also empowered the Judicial Committee to remit the matter the subject of appeal to the court which had decided the matter for re-hearing "either generally or upon certain points only". This power was in addition to the power to order new trials[84].
Thus, the Judicial Committee had both original and appellate jurisdiction. The Committee had no power to place any limits on the matters which could be referred to it[85]. In addition to appeals from the colonies, the Committee heard such diverse matters as ecclesiastical, admiralty, prize and patent cases, appeals against orders of the Lord Chancellor in the exercise of the powers conferred upon him under the Royal Sign Manual for the custody of lunatics and their estates, and references and petitions concerning the Universities of Oxford and Cambridge, the Scottish Universities and bodies operating under the Endowed Schools Act 1869 (UK). There was no limit to the matters which could be referred to the Committee and which might require the taking of evidence under ss 7 or 8 of the Judicial Committee Act.
Moreover, notwithstanding its powers to take evidence on an appeal from the courts of a colony, by 1900 the settled practice of the Judicial Committee was not to receive such evidence. It determined appeals on the materials before the courts of the colonies. In 1905 in Ponnamma v Arumogam[86], Lord Davey speaking for the Committee said:

[94]

Given that by 1900 the long-standing practice of the Judicial Committee was to exercise its appellate jurisdiction as true appellate jurisdiction, the "bizarre situation" to which Deane J referred was a theoretical construct rather than a real possibility. It had no existence in the appellate practice of the Privy Council.
It is true that in Indrajit Pratap Sahi v Amar Singh[88], an Indian Appeal, a Committee consisting of Viscount Finlay, Lord Atkinson and Mr Ameer Ali admitted two documents which they considered were wrongly rejected by the High Court of Patna on appeal from the Subordinate Judge. After admitting the documents, the Committee allowed the appeal. The issue in the proceedings was whether a grant referred to three villages or to one. The documents in question placed "beyond dispute the fact that the grant was in respect of all three villages"[89], the originals having been duly executed and registered and the documents in question being copies obtained from the registry office. Giving the Advice of the Committee, Mr Ameer Ali said there was "no restriction on the powers of the Board to admit such evidence for the non-production of which at the initial stage sufficient ground has been made out."[90]
However, the circumstances in the case were plainly exceptional. Their Lordships and Mr Ameer Ali had to examine the documents to see whether they should have been admitted in the High Court. Holding that they were admissible and that they conclusively decided the case in favour of the appellant, the Committee admitted the documents and restored the verdict of the Subordinate Judge rather than sending the matter back to the High Court.
Having regard to what their Lordships said in 1905 in Ponnamma[91] and subsequently in 1926 in Stevenson[92], the prospect of the "bizarre situation" arising on an appeal from the High Court of Australia was such a tenuous possibility that that situation can be disregarded as an interpretative aid in determining the meaning of s 73 of the Constitution. Moreover, I am unaware of any case in the long period of Privy Council appeals after federation where the Judicial Committee allowed fresh or further evidence in an appeal from this Court or the State Supreme Courts.
Furthermore, with great respect to the opinions of Deane J in Mickelberg and Kirby and Callinan JJ in this application, I do not think that the concluding paragraph of s 73 indicates that Mickelberg and the earlier cases in this Court were wrongly decided. When that paragraph states that the "conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court", it is referring to the conditions and restrictions which the individual Australian colonies had imposed on appeals from their Supreme Courts to the Privy Council. The practice of colonial governments imposing conditions and restrictions on appeals to the Privy Council, as distinct from applications for special leave to appeal, was referred to by Viscount Sankey LC in British Coal Corporation v The King[93] when giving the Advice of the Judicial Committee in that case. Viscount Sankey said[94]:

[96]

The purpose of the last paragraph of s 73 was to ensure that, until the Parliament otherwise provided, an appeal from a State Supreme Court to the High Court would be subject to the same conditions and restrictions as that State had imposed on appeals from its Supreme Court to the Privy Council. The paragraph was not concerned with the power of the Judicial Committee under s 8 of the Judicial Committee Act to hear further evidence on an appeal.
Nor in my view is it a proper approach to the interpretation of the Constitution to reason that, because further evidence is now admitted in most "appeals" in this and other countries, the term "appeal" in s 73 now has a different meaning from that which it had in 1900.
In 1900, an appeal in the true sense did not permit the adduction of fresh evidence. If the judgment of Deane J in Mickelberg[95] is intended to suggest the contrary, I can only say that, before 1900, in the absence of a statutory power to admit evidence or the statutory grant of an appeal by way of re-hearing, there appears to be no decided case holding that the right of appeal permitted such evidence to be adduced. Before the entry of judgment, a verdict could be set aside at common law and a new trial ordered on the basis of fresh evidence. But that was an exercise of original, not appellate, jurisdiction. The order for a new trial was an interlocutory order in the original action[96].
In a variety of legal contexts, courts still recognise that "appeal" has at least four different meanings. It may mean an appeal in the true sense, an appeal by re-hearing on the evidence before the trial court, an appeal by way of re-hearing on the evidence before the trial court and such further evidence as the appellate court admits pursuant to a statutory power to do so, and an appeal by way of a hearing de novo[97]. Which of these meanings the term "appeal" has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be. The continued use of these different meanings of the term "appeal" is itself a complete answer to the proposition that, because further evidence is now admitted in most "appeals" in this and other countries, the term "appeal" in s 73 now has a different meaning from that which it had in 1900.
Moreover, to adopt the reasoning that the meaning of "appeal" in s 73 changes so as to accord with what constitutes an appeal in contemporary circumstances is a course fraught with difficulties. A number of common law jurisdictions, for example, have legislated to permit the Crown to appeal against an acquittal in a criminal trial. Does this mean that this Court should now reject its earlier precedents[98] and hold that the Crown may appeal against a verdict of acquittal by a criminal jury? If the Court were now to hold that the term "appeal" in s 73 permitted the adduction of further evidence and yet still maintained that that term did not include the right of the Crown to appeal against an acquittal, it would be open to the charge that its decisions depended on the individual predilections of its justices, and not on rational principles of constitutional interpretation.
It is true that, in some cases, the meaning of a constitutional provision may be different from that accepted at the time of federation. With experience, we may see that the meaning of particular expressions in the Constitution is different from or more expansive than that which people understood in 1900. At least some members at the Constitutional Conventions almost certainly perceived that this would be the case. At the Melbourne Convention in 1898, Sir John Downer, speaking of the justices of the future High Court, said[99]:

[111]

Similar views have been expressed in more recent cases. In 1981 in Attorney-General (Vict); Ex rel Black v The Commonwealth[108], speaking of the meaning of s 116 of the Constitution, Mason J said that "a Constitutional prohibition must be applied in accordance with the meaning which it had in 1900." In 1986 in Brown v The Queen[109], Wilson J said of s 80 of the Constitution that "in interpreting a statute it is necessary to determine the meaning of the words used as they were understood at the time when the statute was passed." In 1988 in Cole v Whitfield[110], the Court gave great weight to the Convention Debates and the historical circumstances concerning border tariffs in this country, to give the apparently wide words of s 92 a narrow meaning that coincided closely with the framers' actual intention in enacting s 92. In 1993 in Cheatle v The Queen[111], the whole Court said that "[i]n the context of the history of criminal trial by jury, one would assume that s 80's directive that the trial to which it refers must be by jury was intended to encompass that requirement of unanimity."
There was nothing novel about any of these statements of the principles of constitutional interpretation or understanding. They have been regarded as settled doctrine and used to construe the Constitution in many cases[112]. Probably, most Australian judges have been in substance what Justice Scalia of the United States Supreme Court once called himself - a faint-hearted originalist. Speaking of the United States situation, Justice Scalia said that he was a member of "a small but hardy group of judges and academics … [who] believe that the Constitution has a fixed meaning, which does not change: it means today what it meant when it was adopted, nothing more and nothing less."[113]
It is, however, too simplistic to view even "faint-hearted originalism" as meaning that a word or phrase in the Constitution only applies in circumstances envisaged by the makers of the Constitution. Justice Scalia himself acknowledges that old constitutional principles may be applied to new physical realities. Nevertheless, he emphasises that "acknowledging the need for projection of old constitutional principles upon new physical realities is a far cry from saying what the non-originalists say: that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids."[114]
Similarly, the jurisprudence of this Court has traditionally drawn a distinction between the connotation and denotation of words[115]. Professor Zines has explained the distinction as follows[116]:

[113]

Thus, the connotation of the term "internal carriage" in s 92 of the Constitution in 1900 was any method of inland transport. Its denotation in 1900 included transport by horse-drawn carriages and trains. Today, its denotation includes the carriage of goods within Australia by aeroplane even if in 1900 few people expected or intended that it would cover transport by aeroplane. Similarly, in Sue v Hill[117] the Court held that the denotation of "foreign power" in s 44 of the Constitution now includes the United Kingdom although that country was not a foreign power in 1900.
But this is not a case where there is any question of the denotation of the term "appeal" changing. In 1900, the various types of appeal were well recognised. The present case therefore is not like Sue v Hill[118]. The objects or classes of "appeals" have not changed. The question is the same today as it was in 1900: What is the nature of the appeal contemplated by s 73 of the Constitution? That requires us to choose, as it required our predecessors to choose, which of the four usual meanings of "appeal" the makers of the Constitution intended to give to that term in s 73.
In one very important respect, judicial practice in Australia has departed from Justice Scalia's view of constitutional interpretation and the notion that the meaning of constitutional provisions is fixed as at 1900. Even taking the most favourable view of the Court's interpretation of some constitutional provisions, it is difficult to reconcile some judicial decisions as to their meaning with the theory that the meaning of each constitutional provision is that which it had in 1900. To take one example: as Sir Harry Gibbs has noted, the interpretation of the conciliation and arbitration power conferred by s 51(xxxv) of the Constitution has assumed a meaning vastly different from that contemplated by the framers of the Constitution[119].
The reason for the Court's interpretation is that the relevant intention of constitutional provisions is that expressed in the Constitution itself[120], not the subjective intentions of its framers or makers. It is an intention that is determined objectively. Indeed until Cole v Whitfield[121] the Court would not even look at the Convention Debates. No doubt the notion of constitutional intent, like that of legislative intent, is fictitious. But it serves a useful purpose, as Professor Popkin has recently pointed out[122]:

[115]

Because the intention of the makers of the Constitution is one to be determined objectively[123], the present generation may see that the provisions of the Constitution have a meaning that escaped the actual understandings or intentions of the founders or other persons in 1900. If asked in that year what an industrial dispute extending beyond the limits of any one State meant, most people would probably have said that it meant strikes in more than one State by workers in the same industry. They would have had in mind the maritime and shearers strikes of the 1890s. But we now perceive that "industrial disputes", in their context, easily cover paper disputes arising out of the service of logs of claims on employers in more than one State for wages and conditions for numerous categories of employment in disparate industries. The makers of the Constitution intended the Parliament to have legislative powers in respect of "industrial disputes" of a certain kind. If those words cover "paper disputes" about wages and conditions, it is irrelevant that those who framed and enacted the Constitution had something else in mind or believed that the words only covered strikes and similar disturbances. It is therefore true to say, as Windeyer J said in the Payroll Tax Case[124], that the meaning of the Constitution is not necessarily the same as that which it had for an earlier, or I would add a later, generation.
The traditional approach to constitutional interpretation in Australia is probably best described as textualism or semantic intentionalism[125]. It is not literalism, if by literalism is meant no more than a statute is to be interpreted by reference to its words according to their natural sense and in the context of the document[126]. As many cases show, the Court has frequently taken into account the consequences of particular interpretations in determining the meaning of constitutional provisions[127], as well as the history and circumstances of their making.
It has often been suggested that Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the Engineers' Case")[128] committed the High Court to a regime of literalism[129]. Although the majority justices in the Engineers' Case emphasised the necessity to construe the words of the Constitution, their approach is probably better regarded as one of legalism with textualism the instrument of that legalism. The majority justices in the Engineers' Case emphatically rejected the use of external political principles or policies to interpret the Constitution, and thereby committed the Court to the strict legalism of which Sir Owen Dixon became the leading proponent. However, the Engineers' Case did not rule out the history or background of the Constitution as interpretative aids. The majority justices in that case expressly said that the Constitution was to be read in the light of the circumstances in which it was made with knowledge of the combined fabric of the common law and the preConstitution statute law. This approach was emphatically approved by Barwick CJ in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[130] when his Honour said:

[120]

Elsewhere[133], I have observed that the true meaning of a legal text will depend on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood. Thus, it is only history and the practice of the courts prior to 1900 that enable us to know that "appeal" in s 73 of the Constitution does not include an application for a new trial. There is therefore no right to "appeal" to this Court from the verdict of a jury or from a judgment of the Supreme Court of a State founded upon a general verdict of a jury. The verdict can only be set aside by appeal to this Court from a decision of the Supreme Court of a State given by that court in respect of an application for a new trial[134]. Similarly, only history and practice inform us that it was not the intention of the makers of the Constitution to permit the Crown to appeal from an acquittal by a jury, even when the acquittal is by direction of a judge exercising federal jurisdiction[135].
Again, it is only familiarity with United States and Canadian constitutional practice and recourse to the Convention Debates that tell us that the makers of the Constitution intended that this Court and other courts should have the power to declare legislation of the State and federal parliaments unconstitutional. A person looking at the Constitution, without any knowledge of the history of judicial review in the United States and Canada, would be hard-pressed to find a basis for our power to declare unconstitutional the legislation of those parliaments. Sir Robert Garran[136] has told us that, during a Privy Council appeal in 1907, "no less an authority than Lord Halsbury" had interjected "that he did not know what was meant by an unconstitutional Act of Parliament", and that "he had ... in Webb v Outtrim, observed that, except the Colonial Laws Validity Act, it seemed to him no authority existed to declare an Act of the Commonwealth Parliament invalid."
Nevertheless, even when we see meaning in a constitutional provision which our predecessors did not see, the search is always for the objective intention of the makers of the Constitution. A commitment to discerning the intention of the makers of the Constitution, in the same way as a court searches for the intention of the legislature in enacting an ordinary statute, does not equate with a Constitution suspended in time. Our Constitution is constructed in such a way that most of its concepts and purposes are stated at a sufficient level of abstraction or generality to enable it to be infused with the current understanding of those concepts and purposes[137]. This is consistent with the notion that our Constitution was intended to be an enduring document able to apply to emerging circumstances while retaining its essential integrity. The Constitution was addressed to posterity as well as to those living at the time of its enactment. Those who framed and enacted the Constitution knew that the meaning of the document would have to be deduced by later generations as well as their contemporaries. This Court has not accepted that the makers' actual intentions are decisive, and I see no reason why we should regard the understandings of the immediate audience as decisive.
The fact that the meaning attributed to a particular provision now may not be the same as the meaning understood by the makers of the Constitution or their 1901 audience does not make constitutional adjudication a web of judicial legislation. They may not have envisaged that freedom of political communication was part of the system of representative government. They may not have understood that the Commonwealth power with respect to industrial disputes could be invoked by the serving of a log of claims. The participants at the Constitutional Conventions may not have understood that juries would include women or those without property or that "the people of the Commonwealth" might include Aboriginal people. But to deny that the events following federation and the experiences of the nation can be used to see more than the Constitutional Convention participants or the 1901 audience saw in particular words and combinations of words is to leave us slaves to the mental images and understandings of the founding fathers and their 1901 audience, a prospect which they almost certainly did not intend.
The application, and sometimes the meaning, of a constitutional provision may therefore be informed by an appreciation of "contemporary circumstances". This approach recognises that those who made and enacted the Constitution intended it to endure, to be responsive and relevant to the community in which it would operate, and to be sufficiently malleable to account for circumstances and conditions that they could not have foreseen. According to this view, the Constitution is not "a rigid blueprint" but rather "an outline or broad framework for national government capable of adjusting to changing conditions and circumstances."[138] Such a view enjoys some heritage in Australian constitutional thinking. Justice Dixon advocated it in Australian National Airways Pty Ltd v The Commonwealth[139] when he said that:

[137]

As I have already indicated, under ss 75 and 76 of the Constitution the Parliament may be able to authorise this Court, when hearing an appeal against the decision of a court exercising federal jurisdiction, to receive evidence that was not before that court. But if it can, an "appeal" so authorised would not be an exercise of the appellate jurisdiction conferred by s 73 of the Constitution. It would be an independent exercise of the original jurisdiction conferred by ss 75 and 76 in exactly the same way that, at common law, proceedings in error to set aside a jury's verdict were an exercise of original and not appellate jurisdiction[152]. Assuming without deciding that the Parliament may authorise this Court, pursuant to ss 75 and 76 of the Constitution, to receive further evidence, the Court might then be able to hear together an appeal under s 73 and a review in the original jurisdiction. But the further evidence that might be admitted in the original jurisdiction could not be used in the appeal. To permit it would be contrary to s 73 of the Constitution.
In my opinion, it cannot be asserted that Mickelberg was rightly decided and at the same time logically asserted that this Court can receive further evidence in appeals under s 73 from orders of courts exercising federal jurisdiction or from orders of the justices of this Court. The appeal of which s 73 speaks is a true appeal. Ex hypothesi, it denies to the Court the power to receive evidence that was not before the court whose order is the subject of appeal. It makes no difference whether the appeal comes from a State Supreme Court exercising State jurisdiction, a State or federal court exercising federal jurisdiction, or a justice of this Court exercising the original jurisdiction of the Court. Nor does it make any difference that the issue in respect of which further evidence is sought to be adduced concerned the sanity of the appellant.
It follows that, if special leave to appeal were granted, this Court could not receive the evidence which the applicant seeks to rely on in support of his claim that he was unfit to plead to the charge of murder. Because that is so, a grant of special leave to appeal would be futile.

[139]

In my opinion, the Court should also reject the claim that special leave should be granted to determine whether the Full Court of the Federal Court should have investigated whether the applicant was fit to plead at his trial. At common law, a trial judge has a duty to inquire whether the accused is fit to plead. In the Australian Capital Territory, the trial judge's functions in respect of fitness to plead are regulated by statute[153] and bear little resemblance to the course of the procedure at common law. But assuming that the trial judge, Carruthers AJ, had an obligation to inquire into the question of fitness to plead if it was fairly raised, it does not follow either that his Honour erred in not inquiring into the matter or that the Full Court had an obligation to determine whether his Honour should have so inquired.
The duty of the Full Court was to determine the issues raised in the appeal. It was not its duty to act as if it were a tribunal reviewing the propriety of the applicant's conviction. Unless statute law indicates to the contrary, the function of a court of criminal appeal is not to conduct an investigation into whether the appellant was rightly convicted, but to decide the issues raised in the appeal. The issues in the notice of appeal were the measure of the Full Court's duty and authority. Because those issues raised no question of the applicant's fitness to plead at his trial, the Full Court did not err in failing to investigate or determine that question. For the reasons given by Gleeson CJ, there was no failure in the trial process calling for the Full Court's intervention even if, contrary to my view, the Full Court had an overriding duty to investigate whether the conviction of the applicant was a miscarriage of justice. That being so, assuming that this Court would have authority to hear an appeal on a point not raised before the Full Court or the learned trial judge, this Court should not grant special leave to appeal on a ground not raised in the Full Court.
The application for special leave should be dismissed. However, a majority of the Court favours the grant of special leave, and the Court heard full argument on the issues as if the application for special leave to appeal was an appeal. That being so, I would dismiss the appeal because the Court has no power to receive the evidence now sought to be tendered in the appeal and the Full Court did not err in not investigating whether the appellant was fit to plead. My reasons for dismissing the appeal are set out in the reasons why I thought that special leave to appeal should be refused.

[141]

In the amended draft notice of appeal furnished with the application for special leave, the applicant contends that, at his trial, he was unfit to plead and, for that reason, the trial miscarried. The applicant submits that the issue of his fitness to plead, which previously has not been determined, should now be determined by this Court or, consequent upon the allowance of his appeal, by the Federal Court on remitter by this Court. If the application for special leave were granted, the applicant would seek to lead evidence in this Court on the issue. The nature of this evidence is described by the Chief Justice in his reasons. The respondent to the leave application contends that the decision in Mickelberg v The Queen[155], or the reasoning of the majority in that case, bars the reception of such evidence in this Court. The applicant responds by seeking leave, so far as it is necessary, to re‑open Mickelberg.
I approach the issues raised by the application for special leave on the footing that, on an appeal, the Court in certain circumstances may entertain a question of law which the applicant advances for the first time in this Court[156]. Further, I accept that, under the procedures of the common law courts, questions of fitness to plead and to stand trial may be matters for the trial judge to consider, even if they have not been agitated by the prosecution or by the accused. However, the antiquity of the decisions from which this principle derives[157] suggests several matters of some present relevance. First, the common law developed at a time when there was no appellate structure in the criminal jurisdiction such as that later established in England by the Criminal Appeal Act 1907 (UK), and when conviction for felony attracted the death penalty. Further, before the Trials for Felony Act 1836 (UK)[158], the accused had restricted rights of legal representation[159]. Against that background, the reference by Lord Kenyon LCJ in Frith[160] to "the humanity of the law of England" in not requiring the accused to make his or her defence when unfit to plead had a certain edge.
In the Territory, particular provision has been made by s 428E of the Crimes Act 1900 (ACT) ("the Crimes Act")[161]. In certain circumstances, if the issue of fitness to plead had been raised, s 428E would have obliged the Supreme Court to order the applicant to submit to the Mental Health Tribunal ("the Tribunal") established under the Mental Health (Treatment and Care) Act 1994 (ACT) to determine whether or not he was fit to plead to the charge of murder. The issue might have been raised "by a party to the proceedings or by the [Supreme] Court" (s 428E(1)(a)). The Supreme Court would have been obliged to make an order for submission to the Tribunal if it had been "satisfied that there [was] a question" as to the applicant's fitness to plead to the charge (s 428E(1)(b)). Section 428E has been amended since the applicant's trial by the Crimes (Amendment) Act 1999 (ACT), but nothing turns on this.
However, I do not accept the submission now made by the applicant in this Court that, in the absence of any ground of appeal raising the question, the Full Court had a separate and distinct obligation of its own to consider whether the trial judge had erred in not of his own motion raising the issue of fitness to plead.
There could have been no such obligation imposed by the common law as it developed in England in advance of the creation by statute of an appellate structure of the kind now familiar in Australia. The Federal Court is, of necessity, a creature of statute, as a court created by the Parliament within the meaning of s 71 of the Constitution. It has been regarded as settled since the judgment of Griffith CJ in Ah Yick v Lehmert[162] that the power of the Parliament under s 77(i) of the Constitution to make laws defining the jurisdiction of a court such as the Federal Court includes a power to provide for appellate jurisdiction[163]. In the exercise of their appellate jurisdiction, both the Federal Court[164] and the Family Court[165] are endowed by statute with a power to receive further evidence. There is no reason to doubt the validity of those provisions and none is suggested. But the appellate jurisdiction of this Court is founded not in statute but in the direct terms of s 73 of the Constitution. It will be necessary to return to the significance of this constitutional provision.
In the present case, the jurisdiction of the Full Court was conferred by s 24(1)(b) of the Federal Court Act in respect of appeals from judgments of the Supreme Court of a Territory[166]. The term "judgment" is defined in s 4 of the Federal Court Act as meaning "a judgment, decree or order, whether final or interlocutory, or a sentence"[167]. Chamberlain v The Queen [No 2][168] establishes that, in an appeal such as that brought to the Full Court in this case, the Full Court is empowered by the general terms of s 24(1)(b) to allow the appeal if it concludes that there has been a miscarriage of justice.
I accept that a trial in the Territory may miscarry because the trial judge has erred in failing to raise the issue of fitness to plead as provided in s 428E(1)(a) of the Crimes Act and that this may found a good ground of appeal to the Full Court, even though the failure of the trial judge occurred outside the immediate operation of the adversary system.
However, the appellate jurisdiction exercised by the Full Court under the Federal Court Act did not include the imposition upon it of an obligation, outside the adversary appellate process, to raise for consideration whether the trial judge had erred in this way. The jurisdiction exercised by the Supreme Court was enlivened by the institution of the prosecution, whilst that of the Full Court was enlivened by institution of the appeal by the accused after his conviction. It was the grounds of appeal, not some further duty imposed upon the Full Court, which indicated the nature of the subject-matter for determination by the Full Court. The Full Court was not obliged to go beyond that which the appellant before it contended amounted to a miscarriage of justice, by asking for itself whether the material before it raised a question respecting the fitness of the appellant to plead at the trial. This was nonetheless so where the Full Court had before it evidence which was not tendered at the trial and was received by the Full Court on other issues, but which the unsuccessful appellant now contends would have supported the case never sought to be made in the Full Court.
Indeed, had the Full Court done as the applicant now says it was obliged to do, a question would have arisen as to its power to act in this way. For present purposes, it may be assumed that the Full Court would have had the power to raise the issue of fitness to plead, but the matter may be left for determination on another occasion. It should be added that to determine that the trial judge had erred in not raising the issue under s 428E(1)(a) would not mean that the appeal to the Full Court should have succeeded. It would have been necessary further to determine whether, within the meaning of s 428E(1)(b), the trial judge should have been satisfied that there was a question as to fitness to plead, so that there was an error in failing to order the accused to submit to the jurisdiction of the Tribunal.
It follows from the above that an appeal to this Court would fail for want of any error on the part of the Full Court.

[142]

Error by the Full Court would not be established by the evidence which the applicant would seek to have this Court receive on such an appeal and which, if admitted and accepted, would bear upon the question of the mental condition of the applicant at the time of the trial. However, as the position concerning the adducing of evidence in, or in respect of, appeals to this Court under s 73 of the Constitution is dealt with in the other judgments, I should indicate my position in the matter.
Evidence beyond that in the record of the court below is received in respect of various aspects of the appellate process under s 73. In Government Insurance Office of NSW v Fredrichberg[169], this Court received, with reluctance, an affidavit by the respondent's instructing solicitor setting out the solicitor's account of what had happened at the trial in the Supreme Court of New South Wales but which had not been recorded by the shorthand writer. More familiar examples are the receipt of evidence in resolution of disputes in this Court respecting a stay of the orders appealed from, and the provision of security for costs of the appeal to this Court. Further, s 73 of the Constitution empowers the Parliament to fetter by "exceptions" and "regulations" what otherwise would be appeals as of right. For many years, this involved the Court in resolving, by regard, for example, to valuation evidence, objections to competency when the appeal as of right was conditioned by the involvement of property or any civil right amounting to or of the value of a stipulated money sum[170]. Where an appeal lies only by special leave, the Court receives on the special leave application evidence designed to show such matters as the presence of a question of general public importance or, on the other side, that an issue sought to be agitated on an appeal would now be moot. The requirement of special leave is a statutory "regulation" within the meaning of s 73 of the Constitution and to determine a special leave application is not to exercise appellate jurisdiction[171].
The applicant raises quite a different matter from those considered above. The contention is that in the exercise of its power to hear and determine appeals under s 73, the Court may go beyond the record on which the court whence the appeal is brought founded its judgment, decree, order or sentence. In particular, the applicant submits that the nature of the appeal provided for in s 73 is such that the constitutional endowment of jurisdiction carries with it the power to receive evidence not in that record. To make good his submission, the applicant seeks to challenge, or distinguish, the decision in Mickelberg.
In that case, Mason CJ[172] attached significance to what had been said by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan[173]. This was an appeal from a State court exercising federal jurisdiction. Dixon J referred to what had been said in several earlier cases[174] and declared that the High Court "has always refused to hear fresh evidence"[175]. Evatt J emphasised that the jurisdiction conferred by s 73 is to be exercised "for the purpose of determining whether the decision of the inferior tribunal was right or wrong when it was pronounced"[176].
Dixon J made his remarks after discussing the provisions respecting the English Court of Appeal made by the Judicature legislation[177]. These included extensive powers conferred for the taking of further evidence. Rule 52 of the Rules of Procedure included in the Schedule to the Supreme Court of Judicature Act 1873 (UK), so far as material, had stated:

[154]

I should add that I agree with McHugh J, and for the reasons given by his Honour, that the reference in the last paragraph of s 73 of the Constitution to "conditions of and restrictions on" appeals from State Supreme Courts to the Privy Council is not to statutory powers such as those in the 1833 Act.
The statement by Mason CJ in Mickelberg set out above was, with respect, correct. It is true that, under the procedures which had evolved in the Court of Chancery, the grounds upon which a bill of review might be brought after enrolment of the decree or order had included newly discovered matter which "could not possibly have been used when the decree was made"[186]. In Graziers Association of New South Wales v Australian Legion of Ex‑Servicemen and Women[187], Jordan CJ pointed out that the right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction[188]. However, that system eventually[189] was replaced by the Judicature structure including the modern Court of Appeal where, as discussed above, express provision was made respecting the receipt of further evidence.
I would not grant leave to re‑open the correctness of Mickelberg. That case was an appeal from the Court of Criminal Appeal of Western Australia, exercising State judicial power[190]. It is authority for the proposition that the conferral by s 73 of the Constitution of authority to determine appeals from a State court exercising State jurisdiction does not, by force of s 73 itself, confer power to receive additional evidence. The position is, in my view, no different, and should be no different, where the appeal is brought from a Justice or Justices exercising the original jurisdiction of this Court or from any other federal court or from another court exercising federal jurisdiction. The "appeals" provided in s 73 were plainly intended to have the same character regardless of the identity of the particular court, among those enumerated, from which the appeal was brought.
McHugh J explains in his reasons that the answer to the question as to the nature of the appeal provided for by s 73 of the Constitution has not changed by reason of the passage of time since 1900. His Honour contrasts the issue respecting the term "foreign power" in s 44 of the Constitution which was resolved in Sue v Hill[191].
Even if events since the establishment of the Court in 1903 were relevant to the construction of the constitutional grant in s 73, they would support rather than weaken the construction given to s 73 in Mickelberg. In Ex parte Currie; Re Dempsey[192], the New South Wales Court of Appeal divided on the issue whether a statutory conferral of jurisdiction to entertain "an appeal by way of re‑hearing" carried with it a power to admit fresh evidence or whether a specific conferral of such a power was necessary. Later, Glass JA observed[193] that, whilst judicial opinion differed as to whether a power to receive fresh evidence was implied in respect of an appeal from a judge identified as "by way of rehearing", the power was expressly conferred "[a]lmost invariably".
It may be added that the considerations which favour a power to permit further evidence on appeal are stronger at the level of a first rather than an ultimate appeal. Contrary to what once was the case, it is extremely unusual now for an appeal to be brought directly to this Court from a decision at first instance in a State Supreme Court[194]. Appeals from the Federal Court and the Family Court almost invariably reach this Court through their Full Courts[195]. Causes remitted from the original jurisdiction of this Court under the provisions of the Judiciary Act to a federal court or State Supreme Court, which has or which may receive jurisdiction with respect to the subject-matter and the parties, usually follow the same path[196]. In addition, the practical difficulties in a contested factfinding process by an ultimate court of appeal comprising five or seven members are so apparent as not to require elaboration. The applicant correctly eschewed the submission that those difficulties might be obviated by a remitter of the fact-finding process to another court. Only this Court has conferred upon it the jurisdiction specified in s 73 of the Constitution[197].
There is a question whether the power of the Parliament conferred by s 51(xxxix) of the Constitution to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Federal Judicature extends to authorise the reception of fresh evidence in this Court. Part II of the Schedule to the High Court Procedure Act 1903 (Cth) ("the 1903 Act") set out the first "Appeal Rules" for this Court. Section 1 thereof dealt with appeals from single Justices of the High Court and purported to give the Full Court "full discretionary power to receive further evidence upon questions of fact" (cl 9). No such provision is made in the current Rules.
In Werribee Council v Kerr[198], Isaacs J expressed the view that to put this Court in the position of treating as a rehearing an appeal from a State court exercising State jurisdiction, in the sense formerly understood in the Court of Chancery, would be to invest the High Court with original jurisdiction as to State judicial power. That is not what s 73 provides. The views of Isaacs J on this point were accepted by Toohey and Gaudron JJ in Mickelberg[199].
In the present case, as McHugh J explains in his reasons for judgment, the applicant was tried for an offence constituted, for the Territory, by laws made by the Parliament. The Federal Court on appeal was exercising jurisdiction conferred by a law made under s 77(i) of the Constitution (s 24(1)(b) of the Federal Court Act) with respect to a matter arising under s 76(ii) thereof. There is a question as to whether, notwithstanding the position with respect to appeals from State courts exercising State jurisdiction, the Parliament might legislate, by making provision for the receipt of further evidence, to translate appeals from Justices of the Court, other federal courts and State courts exercising federal jurisdiction into appeals by way of rehearing. In my view, notwithstanding what was provided in the Schedule to the 1903 Act, there must be considerable doubt as to whether this could be achieved. The result would be to give s 73 a differential operation. As a matter of textual analysis, that would be an odd result. Section 73 confers jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences" without differentiating the nature of the appellate process between the three categories it then lists. The only qualification is with respect to the Inter-State Commission, where the appeal is "as to questions of law only".
In any event, no such legislation by the Parliament is pointed to as supporting the reception of the evidence which the applicant would seek to put before this Court on an appeal were the application for special leave to be granted.

[160]

The present proceedings represent the second stage of the attempt by Mr David Eastman (the applicant) to overturn his conviction of murder, the sentence of life imprisonment which followed[204] and the dismissal by the Full Court of the Federal Court of Australia ("the Full Court") of his appeal against the same[205].
The first challenge to the lawfulness of the applicant's conviction involved complaint by the applicant that the court in which he was tried, the Supreme Court of the Australian Capital Territory ("the Supreme Court"), was invalidly constituted. Although I accepted the applicant's contention, this Court, by majority, rejected it[206].
I am now obliged to decide this second application on the footing that the first one has failed. I turn then to the exercise of this Court's appellate jurisdiction. What is the boundary of that jurisdiction? Does the very notion of "appeal", as used in the Constitution, forbid the reception of new evidence, whatever the content of such evidence, however vital it may be and despite the fact that it may demonstrate a serious miscarriage of justice or a fundamental flaw in the process leading to the orders impugned?
Essentially, the present application for special leave to appeal seeks to challenge the applicant's fitness to plead and to stand trial ("the applicant's mental fitness") in the proceedings which resulted in his conviction and sentence. This was not a point that was raised by the applicant, nor by those who successively represented him, either in the trial before the Supreme Court or in the appeal to the Full Court. The applicant's present representatives (who did not appear below) contend that his mental fitness to plead, understand the proceedings and advance his interests both at trial and in the Full Court, can be shown to be such that he ought not to have been required to plead or placed in the charge of the jury, nor required to present his case in either court[207]. It is argued that a question is presented that raises the duty of the earlier courts to determine the applicant's mental fitness[208]. It is contended that both of the courts below were, in effect, put on inquiry although neither the prosecutor nor the defence expressly raised the issue[209].
The constitutional question affecting the admissibility of the evidence was presented when counsel for the applicant sought to read to the Court a number of affidavits. Counsel for the respondent objected. Although the latter acknowledged a differentiation between the tender of evidence (eg concerning the importance or ramifications of an issue[210]) in an application for special leave and evidence in the appeal if special leave were granted, he submitted that it would be futile to receive the evidence in the application if constitutional doctrine forbade any consideration of it in the appeal.
In the past, as in this case, the Court has allowed evidence to be adduced during the hearing of a special leave application[211]. This course has been justified by the suggestion that the Court, at such a stage, has not commenced exercising its appellate jurisdiction. The jurisdiction that it is exercising has been described as bearing "some resemblance to the jurisdiction which the Court exercises in its original jurisdiction"[212]. I have always been dubious about this supposed distinction. By the Constitution, this Court's jurisdiction is either appellate or original. If its appellate jurisdiction is invoked, the ancillary proceedings, which are many and varied (stays, expedition, security for costs, interlocutory orders, dismissal for want of jurisdiction etc), are all interlocutory to the exercise of appellate jurisdiction. They are not some hybrid, halfway between "appeals" and the exercise of the original jurisdiction of the Court. Yet in such matters evidence has long been received[213]. In my view the full force of the logic of the opinion about "appeals" favoured by the Court in the past would exclude evidence in such proceedings. Yet this has never been the law and it would be absurd to suggest that it should be. The supposed distinction has been drawn. For present purposes, having protested against its illogicality, I will go along with it.
The respondent made it plain that the objection to the receipt of the affidavits was not procedural nor merely technical. Thus, it was accepted that, in the application at least, it was open to the Court to look at the evidence for at least two discrete purposes. These were, first, to demonstrate that a foundation existed for the constitutional argument which the applicant wished to advance and, secondly, to meet a possible objection that, even if in law admissible, the evidence in question could be given no credence. This latter situation could arise if the evidence manifestly lacked an exceptional character or was of a kind that was available in earlier proceedings so that it ought properly to have been presented during the trial or, at the latest, made the subject of an application for reception of further evidence by the Full Court[214].
It was in these circumstances that this Court took the procedural course, and made the ruling, described by Callinan J[215]. Subsidiary questions (which would arise if the proffered evidence were received) were thus postponed. Those questions include various evidentiary objections to the central evidence of the applicant's chief medical witness (Dr Allan White) upon whose opinions the applicant sought to rely[216]. Furthermore, the respondent indicated that, if the proffered evidence were received, it would wish to cross-examine at least one of the deponents, a facility that should not be exercised until a ruling was made concerning the admissibility of the evidence in an appeal. An additional procedural question would also then arise as to whether it would be constitutionally permissible, and within the statutory powers of remitter available to this Court[217], to provide for the remittal of the whole or any part of the examination of the contested evidence to a single Justice of this Court, to the Federal Court or otherwise or whether this Court, as presently constituted, would be obliged to hear and determine the effect of the new evidence for itself.
Because the procedural ruling just mentioned postponed the determination of these issues, it is premature, and would be inappropriate, to comment upon them save for the first. In the resolution of the first issue it is enough to decide the fundamental constitutional question which it presents. If that question is not foreclosed by authority, or if such authority should be reopened and reversed or distinguished, the issue is whether the proffered evidence, and the legal question it raises, now warrant the grant of special leave. Only if the Court ultimately rejects the evidence (either on the basis of established legal authority or because, were that authority changed, it would not avail the applicant in this case) is it necessary to proceed to the second issue, based solely on the record.

[165]

It is convenient to deal with the proposed evidence in reverse order. In that sequence, the evidence represents, substantially, the chronological consideration of the applicant's mental fitness, before and during the trial and on the appeal, to understand the charge he faced, to comprehend the proceedings and the nature of the evidence brought against him, and to follow the trial, make his defence and, where relevant, represent himself in the hearing[223].
Reports of a police psychiatrist: The first report of Dr Milton dated 20 February 1989 was prepared at the request of police some six weeks after the death of Mr Winchester. It was based substantially on a reading of the transcript of proceedings before the Administrative Appeals Tribunal in 1980 at which the applicant had sought superannuation benefits following the termination of his employment by the Commonwealth. Also reviewed by Dr Milton were certain witness statements and transcripts of recorded intercepted telephone conversations involving the applicant. Even at that early stage, Dr Milton expressed a view that the applicant "suffered from a paranoid disorder" which resulted in his being "aggressive, suspicious, demanding, argumentative and violent". However, at that point he concluded that there was "no way" that the applicant could be "committed to a mental hospital under the present legislation". He recommended continued police surveillance.
In a report of 15 January 1990 Dr Milton's opinion was that the applicant "should now be regarded as psychotic (ie insane)", a condition which he suspected had existed "for a long time". The paranoid features of his disorder and the applicant's high intelligence allowed the "more serious aspects of his condition to be concealed". Dr Milton was of the view that the applicant would "eventually need to be institutionalised" and that he probably shared with identified family members "severe schizophrenia" resulting from "a genetic predisposition to severe mental disorder".
In subsequent opinions Dr Milton relied on transcripts procured from surveillance devices which police had placed in the applicant's residence. On this and other material, by August 1990, Dr Milton expressed the view that the applicant was:

[169]

In April 1992, as a result of outbursts by the applicant during court proceedings, Dr Milton was again consulted by police. In the final report in the series he described the way in which the applicant had behaved in court as "disinhibited and aggressive". It was such as to suggest "that he was unable to control himself - even though he realised the harm done to himself by acting that way". Dr Milton concluded that it was desirable to get a message to the applicant "that his previous history of psychiatric care might be taken into account in major criminal proceedings" and that this "might reduce the pressure on him and cause him to feel there is an honourable way out". In a major survey of the applicant's behaviour Dr Milton concluded that the applicant had demonstrated virtually all features of a paranoid personality disorder, leading him to conclude that he was "for practical purposes, psychotic, ie out of touch with reality". However, he expressed the view that it would be "difficult to substantiate this in terms of the present Mental Health Act".
It will be observed that none of the foregoing reports of Dr Milton addresses the particular issue of the applicant's mental fitness at the trial in the Supreme Court or in the appeal thereafter. The applicant made his plea of not guilty on 2 May 1995. The trial commenced and the jury took their place on 16 May 1995. They returned their unanimous verdict of guilty on 3 November 1995. The applicant was sentenced on 10 November 1995. Dr Milton gave no testimony at the trial. None of his reports was received in evidence. Some of his opinions between 1990 and 1992 clearly raise matters that would seem to present questions about the applicant's general mental condition. On the other hand, they also reveal a measure of variability in the course of that condition (depending, in part, upon his use of medication). They are totally silent as to the applicant's mental fitness during the trial which did not commence until two years and eight months after the last of the reports.
Despite the availability and reference to the reports in the Full Court's reasons, neither the grounds of appeal nor the presentation of those grounds suggested that any reliance was placed by or for the applicant upon Dr Milton's opinions[224]. To the contrary, the Full Court records that the applicant possessed copies of Dr Milton's reports for two months during the course of the trial following the disclosure of their existence when he cross-examined Detective Sergeant Jackson[225]. The applicant had been legally represented for part of this time. For reasons which the Full Court considered obvious, no suggestion had been made at the trial that the reports should have been received in evidence and placed before the jury. Moreover, Carruthers AJ was "at no stage invited to read them"[226].
Affidavits of earlier legal advisers: The next category of new evidence comprises affidavits of a succession of lawyers who represented the applicant before, during and after his trial. Mr M J Williams QC deposes that, when he assumed the brief from other counsel in early 1995, he attempted on one occasion, with junior counsel, to persuade the applicant in his own best interests to undergo examination by a psychiatrist. According to Mr Williams, the applicant, in response, became "consumed with rage". The applicant ranted and raved and abused him. Mr Williams, along with his junior, was ultimately dismissed from the case on 15 May 1995. Mr Williams stated that at about that time he informed the Crown Prosecutor "that I believed the applicant was unfit to plead, and asked him to come with me to see the trial judge in chambers so I could inform the trial judge of my fears. The Crown Prosecutor declined." Mr Williams stated that he then sought the advice of senior members of the Council of the New South Wales Bar Association (of which he was a member) as to whether he should raise the issue in court, contrary to the instructions of the applicant. He was advised that he should not.
Mr T J O'Donnell, barrister, deposes to a meeting which he had with the applicant, together with Mr Lander, solicitor, on 21 May 1995. He describes the behaviour of the applicant as extremely volatile and irrational. As a result of the meeting, Mr O'Donnell states:

[171]

Mr O'Donnell states that he consulted three senior members of the Bar of the Australian Capital Territory. He was aware of the fact that Mr Williams had earlier raised what should be done with the New South Wales Bar Association. He assumed that the New South Wales Bar Association must have ruled against raising the applicant's mental fitness. According to Mr O'Donnell all senior counsel whom he consulted "were of the view that the question of fitness should be raised without instructions from the client, in the alternative a clear miscarriage of justice was imminent".
In the result, however, when Mr O'Donnell appeared before Carruthers AJ to announce the withdrawal of his instructions to represent the applicant at the trial, he did not express the conclusion to which he and Mr Lander had come or the view he had reached, endorsed by his senior colleagues. This much appears from his affidavit and from the verbatim transcript of the trial. Mr O'Donnell did indicate enigmatically to Carruthers AJ that there was "something - I am seeking a ruling from the Bar Council as to … a matter of judicial importance". However, the applicant then interrupted to complain of counsel "ventilating their opinions". Mr O'Donnell withdrew. On the same day a letter was sent by Mr Lander to the Director of Public Prosecutions for the Australian Capital Territory ("the DPP"). According to Mr O'Donnell, he later met the Crown Prosecutor. He made it "clear that it was [his] view that [the applicant] was unfit to instruct counsel", a view also expressed in Mr Lander's letter.
Mr David Lander deposes that, in company with Mr O'Donnell, he met the applicant on the weekend prior to the date fixed for his trial seeking instructions for the conduct of the defence. According to Mr Lander, the applicant "appeared to be incapable of giving any rational instructions" in respect of his defence. He seemed so "pre-occupied with the injustices as he saw them, that he seemed unable to sufficiently focus, concentrate or act rationally in respect of the evidence which needed to be addressed". In these circumstances, Mr Lander, with the concurrence of Mr O'Donnell, caused the letter previously mentioned to be written to the DPP. That letter is annexed to his affidavit. It bears the date 22 May 1995. It expresses the conclusion that Mr Lander and Mr O'Donnell were of the view that "Mr Eastman may be unfit to plead". Specifically, it records the opinion that the applicant was incapable of "giving instructions to his or her legal representative" in terms of the Mental Health (Treatment and Care) Act 1994 (ACT)[227] at the relevant time. There is no suggestion that this letter was ever brought to the notice of Carruthers AJ.
Mr Andrew Boe, solicitor, deposes that between October and December 1996 he had instructions from the applicant to appeal to the Federal Court from his conviction and sentence in the Supreme Court. According to Mr Boe, he found the applicant "either obsessed or delusional for most of our dealings". He raised this concern with counsel retained to present the appeal, Mr G R James QC and Mr S J Odgers. However, according to Mr Boe, during a consultation with the applicant held in prison, the latter denied any mental unfitness. The applicant stated firmly that he was not prepared for his mental fitness to be an issue in the appeal. In the result, on 17 December 1996, Mr Boe wrote to the applicant expressly raising his mental fitness to provide instructions. In the letter, after referring to the review of the trial transcript and the applicant's "demonstrated inability to properly communicate" with his firm, Mr Boe informed the applicant that it was a condition of his continuing to act for him that the applicant undergo a psychiatric assessment forthwith "to determine your continued capacity to provide cogent instructions". The letter noted that the condition was "being placed on the advice and direction of senior and junior Counsel". According to Mr Boe, the applicant never accepted this condition. Shortly after the letter was sent, the applicant withdrew Mr Boe's instructions.
The hearing of the appeal in the Full Court began in March 1997. It continued over two weeks. A new solicitor was retained, Mr Bernard Collaery. According to Mr Collaery's affidavit he also raised with the applicant on "more than five occasions" the applicant's "fitness at trial to either plead and/or give instructions". This caused the applicant to become agitated and to insist that he had no mental problems. Mr Collaery states that he visited the applicant in prison in February 1997, just before the hearing of the appeal. He supported counsel's request that the applicant be examined by a psychiatrist "so that we can advance a mental health ground at your Appeal". According to the affidavit, the applicant specifically instructed Mr Collaery and counsel "not to raise the question of my mental health". He described himself as merely having "an irascible character when I was harassed". The applicant wrote a letter to counsel and to Mr Collaery, which was annexed to the latter's affidavit. It asserted that "there is no mental health component in the present problem, whatsoever - at least not as far as I am concerned".
Mr Stephen Odgers, who was junior counsel in the appeal to the Full Court, deposes in his affidavit that he and senior counsel advised the applicant that it would be desirable for him to undergo a psychiatric assessment "so that consideration could be given to a ground of appeal based on fresh evidence which might thereby be obtained". According to Mr Odgers, the applicant "emphatically refused to undergo any psychiatric assessment". In the face of the maintenance of this refusal, Mr Odgers and senior counsel, Mr James, accepted his decision and his instructions. No ground of appeal based on mental unfitness was filed. None was argued. It must be assumed that counsel were sufficiently satisfied that the applicant could provide instructions.
Reports of the applicant's psychiatrist: The third and final category of new evidence involves two reports of Dr Allan White. The first report, annexed to an affidavit and dated 8 April 1998, was addressed to the applicant's present solicitors. It followed a consultation with the applicant on that day for the purpose of providing an opinion on the applicant's psychiatric condition at the trial and thereafter. For that report, Dr White had available to him documentation including Dr Milton's reports and what he describes as "a review of the incidents before the Jury". According to this first report, Dr White's opinion is that:

[181]

There can be no doubt that the present authority of this Court stands against the reception of the foregoing new evidence. There have been rare departures from a strict application of the rule[228]. Occasionally, during an appeal, reference is made without objection (or by agreement) to facts which have occurred since the trial or appeal[229]. Such reference may include use of materials filed by a party in support of an application for special leave or materials offered by an applicant seeking leave to intervene[230]. It may refer to developments affecting the status of a party[231], steps in associated litigation or the enactment of new legislation or other changes to the law or surrounding facts. Sometimes socalled "constitutional facts" are placed before the Court without objection[232]. However, the foregoing usually relate to uncontroversial or minor matters.
The constitutional obstacle is presented where the propounded facts are significant and objection is taken to their reception. In such circumstances, this Court, for a very long time[233], has held that the Court has no power to receive such evidence. There is one notable dissent to this proposition[234]. However, there are so many strongly expressed opinions supporting the principle[235] that those who may be of a contrary inclination must pause before giving effect to a preference for the approach of the minority over that of the majority.
A close analysis of the majority view in Mickelberg might suggest the possibility of distinctions of assistance to the present applicant. That case was concerned (as all earlier cases had been) with an appeal from a State Supreme Court. The possibility of a different rule in relation to appeals from federal or Territory courts was reserved[236]. However, I see no basis of principle for adopting a different rule with respect to appeals from the other courts listed in s 73 of the Constitution.
There is a hint in one opinion[237] that this Court may have "a discretion to receive evidence of supervening facts on matters which were the subject of assumption or estimation in the courts below". But whilst this point was mentioned, together with the possibility that "appeals in constitutional cases stand in a different position"[238], no ruling has been made for many years admitting an exception to the otherwise absolute rule forbidding the reception of new evidence. Given the reasons propounded for the rule, it is difficult to accept, if it is sustained, the possibility of exceptions.
In choosing their stand, those of the majority opinion have not overlooked the different meanings of the word "appeal", potentially available in the context of s 73 of the Constitution. In one of the earlier expositions it was acknowledged that the word could have a number of different meanings[239]. The one denoting a strict appeal was preferred as that applicable to the context. The issue presented in such an appeal is whether the order of the court from which the appeal is brought was right, "on the materials which it had before it"[240].
In matters involving the interpretation of the Constitution this Court is sometimes more inclined to reconsider an earlier holding than in matters of statute and common law[241]. In part, it has taken this stance out of recognition of the different ways in which each generation sees the unchanging text. However, the near unanimity of judicial opinion on the point in issue, its durability and certain practical advantages that it entails add up to strong reasons for adhering to the established rule.
If the rule appears to exclude the possibility of judicial relief from injustice, it is not as if an applicant is left entirely bereft of any remedy, at least in a case such as the present. In special circumstances, where a wrong revealed by new developments could be cured without disturbance of the orders of the courts below, it has been held to be possible to refer a particular matter back to the appropriate court[242]. Further, subject to the terms of legislation constituting a Court of Criminal Appeal or its equivalent, it might sometimes be possible for a fresh application to be made to such a court reliant on new evidence[243]. Additionally, in all of the States[244], the Northern Territory[245] and the Australian Capital Territory itself[246], provisions have been enacted in criminal matters to enable the Executive Government to refer a petition concerning a contested conviction to a court for reconsideration. Unless abolished or excluded by statute, the Royal prerogative of mercy would also be available in some criminal cases to cure a patent injustice demonstrated by later available facts.
I acknowledge the strength of the authority invoked by the respondent. I accept the applicability of that authority to the new evidence tendered in these proceedings. I concede the other remedies available to a person in the applicant's position. I hesitate to disagree with such clear holdings of the Court that have lasted so long. However because, most respectfully, I regard those holdings as containing a seriously flawed understanding of the Constitution, I am bound to express and explain my own opinion.

[183]

Approach to constitutional interpretation: The opinion of the majority in Mickelberg appears to have been greatly influenced by the understanding of what "appellate jurisdiction" would have been understood as meaning in 1900 - the year that the Australian Constitution was enacted by the United Kingdom Parliament[247]. Upon the basis of that determinant, much time was taken in Mickelberg and earlier cases in the review of nineteenth century practice, in England and in Australia, in relation to appellate reconsideration of orders in criminal proceedings. The purpose of such review was to ascribe to the word "appeals", as appearing in s 73 of the Australian Constitution, the stamp of the defects conceived to be applicable at its birth.
In Mickelberg, Deane J criticised this reasoning, and its factual and legal bases. He did so according to its own assumptions. However, much more basic was his assertion, which I repeat, that the approach adopted involves an incorrect "construction of a fundamental constitutional provision intended to establish the Court as an effectively ultimate appellate court for Australia"[248]. In my respectful opinion, it is to misconceive the role of this Court in constitutional elaboration to regard its function as being that of divining the meaning of the language of the text in 1900, whether as understood by the founders, the British Parliament, or ordinary Australians of that time.
That a different approach would be necessary for the construction of the Constitution was recognised as early as 1901 by one of the founders, Andrew Inglis Clark. He declared, at the outset of the new Commonwealth, that the document had to be read and construed "not as containing a declaration of the will and intentions of men long since dead … but as declaring the will and intentions of the present inheritors and possessors of sovereign power"[249]. Clark acknowledged the "living force" of the Constitution which otherwise would be a "silent and lifeless document"[250]. Words in a constitutional setting inevitably take colour from the social circumstances in which they must be understood and applied[251]. I have stated elsewhere my views on this question[252]. In my opinion, the Constitution is to be read according to contemporary understandings of its meaning, to meet, so far as the text allows, the governmental needs of the Australian people.
There are many instances where the Constitution has been approached in the way that I favour[253]. Thus a jury trial, to which s 80 of the Constitution refers, would in 1900 undoubtedly have meant a "jury" comprising men only, and then, chosen by reference to their property qualifications. So it had been for centuries. Yet this Court rejected those requirements as inherent in that feature of legal procedure inherited from England[254]. Why, one asks rhetorically, is the notion of "appeal" stamped indelibly with certain limitations yet the notion of a "jury" is not?
There could scarcely be a more vivid illustration of this point than the recent decision in Sue v Hill[255]. There, the reference in s 44(i) of the Constitution to a "subject or a citizen of a foreign power" was held applicable to the United Kingdom. Such an understanding of the provision would have been regarded as self-evidently erroneous, even absurd, in 1900. Yet the Court, looking at the constitutional words with today's eyes, read them so as to derive their contemporary meaning. There are many similar illustrations[256]. They are sometimes explained by reference to the disputable philosophical distinction between the connotation and denotation of verbal meaning. I contest that distinction. But even if it be applied, it is difficult to reconcile an expansive view of the "denotation" of one inherited legal procedure ("jury") with a narrow, restricted and immovable view of another then developing procedure of much shorter legal history ("appeal").
This Court should adopt a single approach to the construction of the basic document placed in its care. Constitutional elaboration, above all, should be approached in a consistent way, lest the inconsistencies of an originalist approach here and a contemporary approach there be ascribed to the selection of whichever approach produces a desired outcome.
Analogy - new grounds of appeal: The question whether, in the exercise of its appellate jurisdiction, this Court may receive new evidence is, to some extent, analogous with the question whether the Court may allow a new ground of appeal to be raised for the first time, one which has not been considered earlier in the courts of trial or appeal below.
Opinions have been expressed that entertaining such a new ground of appeal is, or may be, impermissible because it alters the appellate character of the process[257]. How can one have an "appeal" involving a point of argument raised for the first time in a final court? Yet, despite this suggestion, this Court has reserved to itself the right, in exceptional circumstances, to admit new grounds of appeal if justice demands that course[258]. The fact that this course has been taken frequently and recently[259] indicates a rejection by the Court of the notion that there is any constitutional restriction on the power of the Court to hear and determine an appeal on a new ground. Such a ground might involve a detailed reconsideration of the facts and evidence[260], although not (it seems) a point the reconsideration of which would involve a relevant procedural unfairness to a party, for example one which, had it been raised earlier, could have been answered by evidence in the courts below[261]. The retention of this measure of flexibility to permit the Court to consider and determine fully an exceptional issue when the proceeding is still within the Judicature, illustrates the error of adopting an absolute exclusion of new evidence, whatever its purpose and legal significance. Procedure, under our Constitution, ultimately bends to the insistent demands of justice.
The constitutional context: The basic flaw that runs through the reasoning of the decisions of this Court concerning the meaning of "appeals" in s 73 of the Constitution is that it was earlier felt necessary to affix that word with the meaning, and only the meaning, which it bore in 1900. Being an erroneous approach, it unsurprisingly produced erroneous outcomes. In 1900 the notion of "appeal" (itself always a creature of statute) was relatively new. Today it is not. After more than a century of appeals and nearly a century of common appellate review of judgments, orders and sentences in civil and criminal cases in Australia, the meaning ("denotation" if one likes) of the word has expanded. We are not hostage to the understandings of the word of 1900. Naturally, they may inform the argument. But they do not dictate its outcome.
If one considers the context in which the word "appeals" appears in s 73, it lends further support to the argument that it should not be given the narrow meaning that has been accepted so far. First, the word appears not in an ordinary statute but in a constitutional instrument, difficult of formal change, designed to endure indefinitely and to cover a vast number of unforeseen circumstances. Ordinary principles of construction would argue strongly against imposing a narrow meaning on a word so as to restrict (whatever the circumstances) the capacity of the nation's final court to prevent a serious injustice where this could be shown by clear evidence available to it. As Deane J observed in Mickelberg, to the extent that the Court is limited, the result diminishes "the nation, rather than the court"[262].
It is true that this Court did not take long to introduce the limitation and that it has proved a most persistent one. But it seems plain that it was not conceived to be inherent in the minds of many of those who laboured on the constitutional text[263]. In the early years of the century, and indeed for long after, there would have been practical reasons of convenience for adhering to a rule which had the effect of excluding the receipt of new evidence. However, the rule was propounded as one of legal principle. Necessarily, it is applicable to civil as well as criminal appeals. It certainly defies the ordinary practice of appeals in the nineteenth century involving the exercise of equitable jurisdiction, where fresh evidence could sometimes be received on appeal[264]. Even if all of the historical relics of ancient common law procedures, mentioned in the cases, were thought to suggest a shackling of the exercise of appellate jurisdiction in criminal appeals, it hardly seems likely that the very notion of "appeals", as used in the context of s 73, was to be restricted so severely. Why, one might ask, should the grant of power be confined beyond even the possibility of regulation by the Judicature itself or (to the extent constitutionally permissible) by the Parliament?
It is no answer that some of those who are disappointed by the rejection of jurisdiction may sometimes go somewhere else when they are lawfully before the judicial branch of government in this Court. The Court's jurisdiction is, as it should be, broad and ample in content. It is not so crippled by artificial restrictions that the demonstrable justice of a case must be ignored. The person with a proper appeal is not fobbed off to the Crown's prerogative of mercy (where this has survived) or to the discretions of the Executive Government to conduct a review[265] or other inquiry. In any case, such palliatives are not available in civil appeals.
The Court has held that appellate courts below this Court are legally incapable of reopening their concluded orders[266]. However, the rule of necessity that permits this Court, as the ultimate court, to reopen its own orders so as to avoid the blight of an uncorrected injustice, should also inform the approach of the Court to an understanding of the scope of its appellate jurisdiction[267]. To deny this Court the authority to receive new evidence essential to avoiding a legal injustice is to demonstrate a completely unwarranted lack of confidence in the capacity of the Court to keep the balance right between "the demands of justice [and] the policy in the public interest of bringing suits to a final end"[268]. The occasion for the admission of new evidence in the exercise of appellate jurisdiction by a court such as this would be rare indeed and confined to very special circumstances. But to deny the possibility of such exercise, and to ascribe such denial to a constitutional limitation derived solely from the word "appeals", seems quite unconvincing.
There are two further textual considerations, to be found in the constitutional scheme and language, which reinforce this view. The first is relatively minor. In some cases where it is hypothesised that vital new evidence cannot be received by this Court in the exercise of its appellate jurisdiction, it would be perfectly possible for an application to be made to the Court at the same time, in the exercise of its original jurisdiction, to afford relief against an officer of the Commonwealth having a responsibility for the enforcement of the judicial order[269]. It seems unlikely that such a signal disharmony would exist between the capacity of the Court in separate proceedings to receive evidence having vital legal significance. It is no answer to say that the receipt of new evidence of its nature involves the exercise of the original jurisdiction of the Court[270]. As Deane J remarked in Mickelberg, that is to presuppose, not to resolve, the content of the proper incidents of appellate jurisdiction, which is the question in issue.
More importantly, there is the clue in s 73 itself concerning the answer to this controversy. The closing paragraph of the section indicates that "[u]ntil the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court". Long before the Constitution came into force, the Judicial Committee of the Privy Council had been empowered to receive further evidence on appeal to it[271]. Given the clear indication in the text of s 73 that this Court should, from its establishment, have no lesser jurisdiction than the Privy Council it seems, with respect, absurd to suggest that until the Parliament otherwise provided in relation to the appellate jurisdiction of this Court, it enjoyed the powers of the Privy Council in appeals but thereafter lost such powers forever.
Against a background of nearly 70 years in which appeals to the Privy Council could, exceptionally, receive new evidence in Australian appeals, it is difficult to accept that this Court was to be in a position inferior to that body in the exercise of its own appellate jurisdiction. Not the least is this so because of the way in which the Constitution envisaged that this Court would quickly replace the Privy Council for most Australian appeals, be the exclusive venue in respect of some of them and, upon the happening of certain events (which have since transpired), wholly replace the Privy Council in the exercise of the ultimate appellate jurisdiction in respect of all Australian courts[272].
This last argument was advanced by Deane J in Mickelberg. But it is no mere "assertion"[273]. It represented to Deane J, as it does to me, powerful internal evidence, within the language and structure of Ch III itself, that the crabbed view of "appeals" which this Court has previously taken is wrong, and clearly so. Of course, the occasions for the exercise of the power of the Privy Council to receive new evidence were extremely rare. However, no one doubted that the exceptional power existed in 1900 as it does today. Gradually this view of the Constitution gathers adherents. In due course it will command a majority. The interpretation of the Constitution cannot be declared to be "settled" in such a matter by judicial fiat. In the law, time often corrects error.
Appeals in 1900: Even on the assumption that the content of the appellate jurisdiction of this Court is to be decided by reference to what "appeals" meant in 1900 (which I would not accept) there are many indications that it is factually incorrect to suggest, as a universal rule, that the notion of "appeals" excluded absolutely the reception of new evidence. After all, it is not as if "appeal" was a common law proceeding of ancient lineage. On the contrary, in 1900 it was a relatively new creature of statute the content of which had been expanding throughout the nineteenth century. Australians who were informed about such matters, and the United Kingdom Parliament which had earlier enacted the Judicial Committee Act 1833 (Imp)[274] and the Supreme Court of Judicature Act 1873 (UK)[275], may be taken to have been aware of the variety and scope of "appeals" as a legal procedure for the review of primary decisions[276].
A number of the early decisions of this Court, expounding the scope of its appellate jurisdiction, appear to have been strongly influenced by the then self-imposed limitations of the English Court of Appeal rejecting fresh evidence as involving a "very dangerous practice"[277]. It was natural enough, at the beginning of the twentieth century, that such English judicial opinions should have influenced the Justices of this Court operating as they were in a post-colonial environment. However, it is wholly inappropriate that such notions should shackle the Constitution today.
The English Court of Appeal and the House of Lords have long since abandoned the rule that the reception of new evidence is a dangerous and impermissible thing[278]. That attitude was itself doubtless the product of the novelty of appellate facilities and the resistance in many quarters to the very notion of "appeals"[279]. This attitude has no place in contemporary understandings of the Constitution. With every respect, we can now see that it ought not to have influenced perceptions of a limitation on the constitutional power available to this Court in discharging its ultimate national appellate jurisdiction. Yet concepts borrowed from earlier times and other places can sometimes leave behind a precedential legacy that endures far beyond reason[280]. This is such a case. It is time to delete it from our constitutional jurisprudence.
New evidence in other final courts: A review of the approach of other final courts, with functions similar to this Court, contradicts the suggestion that there is something in the very notion of "appeals" to a final court which is alien to the reception of new evidence in exceptional cases. Save for the Supreme Court of the United States of America, the final appellate courts of all common law jurisdictions appear to assert an entitlement, in exceptional circumstances, to admit fresh evidence in the discharge of their function of deciding "appeals". To this extent, the holdings of this Court portray an anomalously narrow conception of the nature of "appeals". Not only is the power to receive new evidence standard to such final courts. The restrictions imposed on its admissibility are also substantially similar[281].
In the United Kingdom, the English Court of Appeal has altered its position from that adopted in the nineteenth century as stated above. In part, this development has occurred as a result of the passage of legislative enhancement of the jurisdiction of that Court to receive fresh evidence[282]. But, in part, it has followed the decision of the Court of Appeal to adopt a more flexible approach to the discretion so conferred. Thus in R v Gilfoyle[283] that Court saw no difficulty in interpreting its powers even to include one of receiving fresh evidence "of its own initiative"[284] where it "thinks it necessary or expedient in the interests of justice"[285] so as to remove "a lurking doubt"[286]. Lest it be said that this represents no more than the power of Australian intermediate Courts of Criminal Appeal (and their equivalents) to receive "fresh" or "further" evidence, the House of Lords also accepts that, in its appellate jurisdiction, it possesses powers equivalent to those of the Court of Appeal. Various procedural possibilities by which such evidence may be considered have been explored[287]. In recent proceedings, evidence has been received not only from parties[288] but also, apparently, from an intervener[289]. I accept that the constitutional position of the House of Lords is different from that of this Court. But it is surely worth observing that the reception of evidence in exceptional circumstances to prevent a plain and serious injustice has not been rejected on the ground that it is inconsistent with the very function of their Lordships to decide "appeals". On the contrary, a reason given to accept such evidence is that it is essential that it should exist to prevent an irremediable injustice, incompatible with the functions and purposes of the judicial branch of government.
In New Zealand, the Court of Appeal has power to receive further evidence both in criminal[290] and civil[291] appeals. Again, the constitutional position is different. The occasions for the admission of new evidence are extremely rare. But no one suggests that the power is alien to the appellate function.
In South Africa, all appellate courts have the power to "receive further evidence" in criminal and civil matters[292]. Exceptional circumstances are required[293]. In Simaan v South African Pharmacy Board[294], the Appellate Division appears to have received new evidence. Recently, in Van Eeden v Van Eeden[295], an appellate court permitted new evidence to be led although it concerned circumstances that had arisen after the trial court had delivered its judgment. The rules of the Constitutional Court incorporate this provision by reference[296]. In addition, that Court's statute and rules provide that the Court may receive new evidence if uncontested or of such a nature that it is capable of easy verification[297]. Furthermore, the Court may appoint a commission on its own initiative to obtain and hear evidence which is "necessary for the determination of any issue in such proceedings"[298]. Finally, s 173 of the 1996 Constitution of the Republic of South Africa provides that the Constitutional Court, the Supreme Court of Appeal and the High Courts all have the "inherent power to protect and regulate their own process".
In the United States, it appears that the Supreme Court will never hear new evidence in appeals[299]. However, that Court does not enjoy under the United States Constitution the same functions as this Court does under the Australian Constitution. This Court is at once a constitutional court, a court of federal appeals and a general appellate court for the entire Judicature of the Australian nation. In this respect, its appellate function is much closer in character to the Supreme Court of Canada than that of the United States. The power of the Supreme Court of Canada to receive fresh evidence on appeal is, to use the words of L'Heureux-Dubé J for that Court, "not contested"[300]. The power exists in both civil and criminal appeals. Whilst it is rarely exercised, it remains in reserve. The Supreme Court of Canada has rejected attempts to impose rigid limitations on the exercise of the power[301]. It does not appear to have been suggested either by a party or by that Court itself that the powers to prevent, in this way, what would otherwise be a serious miscarriage of justice, are fundamentally incompatible with the appellate function.
If we look beyond common law countries, it appears equally true that final courts of the civil law tradition may also receive fresh evidence in exceptional circumstances[302]. It is inappropriate to examine this issue at further length. It is enough to say that the foregoing analysis establishes that, save for the Supreme Court of the United States whose position is distinguishable, the self-denying interpretation of the nature of "appeals" adopted by this Court is out of keeping with the vigilance reserved by all other final courts of appeal to ensure that, in the exceptional case, they can avoid themselves becoming an instrument of serious injustice.
There is nothing in the language or structure of our Constitution that warrants maintaining a stance on this subject uniquely offensive to the essential purpose of the Judicature. Since appeal is, and was in 1900, a creature of statute, the content of appellate jurisdiction (including of this Court) cannot be artificially restricted to a narrow conception of "appeals" which finds favour in no equivalent court of similar function and jurisdiction.
Appeals as a statutory creation: It is true that appeal is a creature of statute and the Parliament has not attempted to enact provisions to regulate the reception by the Court of new evidence. In the state of present authority that omission is hardly surprising. But in this instance the facility of appeal is afforded in the statutory language of the Constitution itself (ss 73 and 74). The fact that the Constitution does not, nor does any other federal law, provide in terms for the reception of new evidence in an appeal or the grounds of its reception is not, in my opinion, fatal. This is no ordinary court. It is the ultimate appellate court of Australia. In default of statutory regulation, it may be left to this Court to spell out the exceptional circumstances in which new evidence will be received.
In Australia statutory provision for the reception of such evidence once existed. It has since been repealed[303]. However, relevant rules of court exist. By the High Court Rules, O 37, rules have been made regulating the reception of "Evidence". Such rules are not confined, in terms, to evidence within the original jurisdiction of this Court. They are general in their language. Order 37 r 3 provides:

[188]

It is true that, by O 1 r 5, "proceeding" is defined to include "action, cause, matter and suit". Obviously, O 37 r 3 is intended to apply chiefly to a trial in the original jurisdiction. But it is wide enough to extend to, and empower evidence to be adduced in, a "proceeding" by way of appeal, provided that course is constitutionally permissible. In my view it is.
Avoiding artificial reasoning: The removal of the supposed constitutional barrier would also relieve this Court of the artificial reasoning into which it is forced by the present rule[304]. Once the procedural ruling was made during the hearing of this application, this Court was subjected to extended argument concerning whether the trial judge and the Full Court ought themselves to have noted the applicant's lack of mental fitness and initiated investigation of that question, alteration of the issues chosen by the parties, amendment of the record and judicial determination of the point. In my respectful view, adopting this approach involves a much more serious departure from the ordinary conceptions of the judicial function as it is practised in Australia (particularly in criminal courts) and the role of appellate courts under our constitutional arrangements.
Distinguishing "additional" and "new" evidence: Even if, contrary to the foregoing opinion, this Court for reasons of authority or perceived principle were to adhere to the holding that new evidence is inadmissible in an appeal to it, there is surely a distinction between such evidence as it is relevant to the substantive issue determined in the earlier proceedings and evidence as it concerns suggested defects of a procedural kind. Thus, where subsequently discovered facts cast doubt on the propriety of the participation of a judge in appellate proceedings, such evidence would surely be admitted in support of a ground of appeal against the order in which the judge participated[305]. It might be impossible, once the final order of the court in question has been entered, for that court to correct its own order, the matters previously in contest having passed into judgment[306]. This Court has no authority to correct or otherwise alter the orders of earlier courts unless, relevantly, it allows an appeal and sets aside the order in the exercise of its appellate powers. In my view, the position in this case is analogous.
Let it be assumed that the mental unfitness of the applicant is the very reason that occasioned his earlier denials; that it coloured his judgment and rendered wholly believable his assertion of mental fitness to plead. In such circumstances, the belated disclosure of the factual foundation to establish a question about a want of mental fitness at the time of the trial is not, of its nature, a "part" or "detail" of the "transaction amounting to the crime" of which the applicant has been found guilty. Instead, it concerns separate and fundamental questions. These involve the very integrity of the trial (and subsequently of the appellate) process[307]. These are the questions now before this Court. Conceding that in many cases the stringent requirements for the admission of new evidence would be missing, where (as here) they may be found to be present, this Court is surely not required to close its eyes. It is difficult to accept that the Constitution adopted by the Australian people is so mechanical and rigid as to forbid such an exercise of appellate powers and to oblige this Court to ignore evidence in a highly relevant matter before it which, if considered, would warrant the provision of relief against a postulated grave injustice amounting to a judicial wrong.
It is, of course, possible that, when properly examined, the evidence proffered for the applicant in these proceedings might fail to meet the strict criteria warranting this Court's reception of it. It might be disclosed as no more than a further attempt by the applicant to manipulate the judicial process. Such manipulation does occur. Courts must remain vigilant to the possibility. On the other hand, there is sufficient evidence proffered for the applicant, in my view, to warrant its further examination. Thus, even if further evidence generally be inadmissible in an appeal to this Court, new evidence which essentially raises the issue of whether a party has had a trial at all, or a true appeal as the law and the Constitution envisage, presents an issue in a different category[308]. In the exercise of its appellate function, and in exceptional circumstances, this Court may, in my opinion, receive such evidence. Neither past authority nor applicable constitutional principle forbids that course. At least they do not do so in the special circumstances of this case where refusal even to consider the evidence is an affront to common sense and to the concept of justice that runs through Ch III of the Constitution[309].
Practical considerations: At the time this Court first propounded its rule denying itself an entitlement to receive evidence in an appeal, it would naturally have been concerned about the added burden which such a facility might impose. Although from 1903 appeals in criminal matters lay only by special leave of the Court, most of the Court's appellate jurisdiction was, as it still is, civil in character. Civil appeals commonly lay as of right. Understandably, the prospect of determining applications to admit new evidence in such appeals would have been unappealing. However, both in criminal and civil appeals, the Court now has more than adequate means to defend itself against unwarranted applications that it should receive new evidence. The applicable considerations have been developed by other final courts of appeal. The parties seeking to enlist this exceptional power would be subject to the strict requirements imposed upon all applicants for special leave[310]. Therefore, whatever might have been the attitude to "appeals" in and after 1900 (and the concerns long held about the undeflectable practical burdens which such functions initially imposed upon this Court), today such considerations need not play, even sub silentio, any role in the expression of our constitutional doctrine.
In R v Gardiner[311], Dickson J in the Supreme Court of Canada acknowledged "a tendency to read down the jurisdiction of the [Supreme Court]". He ascribed this tendency to the "burgeoning caseload and inadequate discretionary means of controlling it" which then faced that Court. However, he cautioned against a narrow approach to the appellate jurisdiction in a final constitutional and appellate court. He did so in words that are applicable to this Court's present dilemma[312]:

[198]

It would, I imagine, be open to me to confine my disposition of this application to one directing that the hearing proceed to completion on the basis that the constitutional objection of the respondent should be overruled. However, because there is a division of opinion in the Court as to what should then follow on the applicant's alternative case, it appears necessary, and certainly desirable, that I should accept for present purposes the Court's ruling that the evidence is inadmissible and proceed to consider what follows. In Mickelberg, after expressing his view as to the requirements of the Constitution in respect of the appellate jurisdiction of this Court, Deane J took a similar course. He proceeded to his ultimate orders "on the basis that a ruling had been given by the Court at the time when the further evidence was tendered"[315]. His Honour then reasoned on the footing that he was "constrained to deal with the case on the basis that that further evidence was not before the Court"[316]. That is the course which I will likewise take.
Consistent with the opinion which I expressed in Gipp v The Queen[317], I do not doubt that, in an exceptional case where a serious error is brought to light concerning what would otherwise be a manifest miscarriage of justice, a new ground of appeal may be permitted in this Court, although never previously raised, argued or determined in the courts below[318].
However, it is one thing to uphold the power, on the basis of the record, to enlarge the issues for determination. It is quite another to uphold the point in question when it is fully argued. Not infrequently, because the point was not in issue in the courts below (having been rejected or overlooked there), a foundation in the evidence contained in the record will be missing. Where this is so it may well destroy the chances of success on the point, once it is formally put in issue for determination by this Court.
I have given careful consideration to the suggestion that, within the record as it was before them, the trial judge and the Full Court ought to have perceived the applicant's lack of fitness to plead, to understand the evidence and (when it became necessary) to represent himself at intervals during his trial. I fully accept that, both by the statute applicable in the Australian Capital Territory[319] and by the general law, the question of an accused person's fitness to be tried is not one left exclusively to the parties. It is one in respect of which the court itself has responsibilities[320]. This is true despite the fact that neither the prosecutor nor the defence raises it[321].
There is no doubt that the applicant's conduct at the trial was often grossly disruptive, frequently abusive, repeatedly insulting, needlessly offensive and objectively contrary to his own best interests. Having regard to the view which I have reached about the admissibility of the new evidence and having regard to the disturbing content of that evidence, there would obviously be certain attractions for me to hold the trial judge and the appellate court in error in respect of their obligations. It will be apparent that I consider that the new evidence, proffered but rejected, demonstrated a distinctly arguable case that the applicant was unfit to plead and to be tried in the way that occurred. But neither the trial judge nor the Full Court had the new evidence or any evidence touching the precise issue essential to deciding the applicant's mental fitness. The most that was available to them was the applicant's misconduct during the trial and (in the case of the Full Court) certain reports of Dr Milton.
Confining myself to the materials which the judges in the courts of trial and appeal had, I am not convinced that they erred in failing to perceive, raise and determine the question of the applicant's mental fitness. No such issue was ever presented. The trial judge, who had the advantage which this Court has never had of viewing the conduct of the applicant over a hearing lasting more than five months, was never moved to raise the question for himself. Clearly enough[322], he simply regarded the applicant as deliberately disruptive and cunningly manipulative. Despite his long experience in presiding in criminal trials, the trial judge never felt moved, in the absence of the jury, to identify the question of the applicant's mental fitness, whether for submissions or for evidence.
The Full Court which, unlike the trial judge, did have before it for a limited purpose the pre-trial reports of Dr Milton likewise never felt moved to raise the question. Although sundry legal practitioners had expressed to the applicant himself, and to the prosecutor, their concerns about the applicant's mental fitness, never once at the trial or in the Full Court did any of them present the issue squarely or even obliquely for judicial consideration and decision. The burdens on the judges in these proceedings were heavy enough without this Court's now imposing upon them, retrospectively, a prescience in this case which is born of (or unconsciously coloured by) the new evidence tendered to this Court, read, but rejected. That evidence was never placed before those who are now said to have failed in their judicial duties to anticipate and imagine the defects belatedly complained about. I believe that my opinion is consistent with the view I expressed in Gipp that it was impossible and inappropriate to criticise the judges below for failing to comb through the record to invent points about suggested misdirections which the parties, competently represented, had never themselves raised[323]. This is not the way the trial or appellate process operates in this country. Now to impose such a change would be a far more serious departure from constitutional assumptions than the modest re-reading of "appeals" that I favour.
Limiting myself, then, to the record of the trial in the Supreme Court and of the appeal before the Full Court, I do not believe that either Court erred or that, on such record, a miscarriage of justice or fundamental failure of the trial process is shown. Accordingly, although in my view this Court in hearing this application should permit the enlargement of the issues, as enlarged, within the record, they do not avail the applicant. Whilst he should have special leave because of the general significance of the points argued in his application, it is my opinion that, on the record, his appeal must be dismissed.
This outcome is clearly unsatisfactory. In this case, there are other remedies that may permit the repair of the possible injustice to the applicant which the result entails[324]. However, such remedies lie outside the appellate system of the Australian Judicature. Essentially, they belong to the Executive Government. By reason of the constitutional holding that is upheld in this case, the Australian judiciary is disclosed as incapable, even in a matter still before it in its highest court, to repair what may be a fundamental error or a proved injustice. This is an outcome which I would reject and from which I dissent. But upon the basis of this Court's adherence to its narrow view of its appellate jurisdiction, it is an outcome that must follow. The applicant must therefore fail.

[199]

I would grant special leave but dismiss the appeal.
HAYNE J. The applicant contends that he was not fit to plead or stand his trial in the Supreme Court of the Australian Capital Territory on the charge that he murdered Colin Stanley Winchester. He has not previously made this contention. It was not raised at his trial and it was not raised in his appeal to the Full Court of the Federal Court of Australia against his conviction for murder.
In support of his application for special leave to appeal to this Court from the dismissal of his appeal to the Full Court of the Federal Court[325], the applicant has tendered the evidence that is referred to in the reasons of other members of the Court. In Mickelberg v The Queen[326], it was held that, on an appeal under s 73 of the Constitution from the decision of a State court exercising State jurisdiction, the High Court has no power to receive fresh evidence. The fact that the present appeal is from the decision of a Territory court leads to no different conclusion about the powers of this Court. There is no sufficient reason to reconsider the decision in Mickelberg. As the reasons of other members of the Court show, Mickelberg stands in an unbroken line of authority of long standing[327]. The conclusion is based upon the constitutional distinction between appellate and original jurisdiction. The word "appeal" is now used to describe many different forms of proceeding: appeals on questions of law[328], appeals by way of rehearing[329], appeals by rehearing de novo[330], appeals which, on examination, can be seen to be an exercise of original jurisdiction[331]. The fact that the word is now used in these ways does not provide any reason to depart from the construction of s 73 that was adopted in Mickelberg by adopting one of these several different meanings in preference to the others.
In my opinion, the determinative issue in this case is whether, on the material before it, the Full Court of the Federal Court could or should have examined whether the applicant was fit to plead and to stand trial[332].
Consideration of that question requires attention to two issues: the nature of a criminal trial and the jurisdiction of the Full Court of the Federal Court when sitting as a Court of Criminal Appeal on appeal from the Supreme Court of the Australian Capital Territory.
A criminal trial is an accusatorial and adversarial process. It "is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence"[333]. As Barwick CJ said[334]:

[226]

Again there is one feature of this statutory scheme which warrants particular notice - that the question of fitness to plead can be raised by the Court as well as by a party to the proceedings. That is entirely consistent with the common law and reflects the fundamental importance of the question. Whether the scheme applies not only to questions of fitness to plead but also to questions of fitness to be tried may be open to argument. It is neither necessary nor desirable to express any view on that issue now.
It is said that, in this case, there was no reason for the trial judge to think that the applicant may not have been fit to plead and stand trial. That is, it is said that the course of events at trial raised no real and substantial question about the applicant's fitness to plead and stand trial. For the moment, it is convenient to assume that this was so. But when the matter came before the Full Court, that Court had before it, not only the record of the trial, and the evidence which was adduced at the trial, but also some further material which was not in evidence at the trial.
The record of the trial revealed that, for large parts of his trial, the applicant was unrepresented. He dismissed his lawyers and then re‑engaged those, or other, lawyers, many times during the trial. The Full Court said that "[i]t would not be an exaggeration to describe [the applicant's legal representation during the course of the trial] as chaotic"[351]. The Court concluded that "[i]t cannot be said that the [applicant] acted with justification in so frequently dismissing his lawyers"[352], the applicant being "prepared to see his murder trial proceed without the benefit of counsel if his counsel would not submit to his unreasonable demands"[353].
The record of the trial also revealed that the applicant often disrupted the proceedings. In the words of the Full Court, throughout the course of the trial, the applicant "made vile, foul‑mouthed, vituperative comments addressed to [the trial judge] and to the Crown Prosecutor which led to the trial judge having him removed from the Courtroom for part of the trial"[354]. That disruption took various forms, including the applicant chanting "Stop judicial condonation of harassment" or like statements as witnesses were sworn or giving their evidence[355]. As the Full Court said[356], the applicant:

[230]

The Full Court had before it a series of reports by a consultant psychiatrist (Dr Milton) who had been retained by investigating police to express opinions about the psychiatric state of the applicant. These reports, made between February 1989 and September 1992, were tendered to and received by the Full Court in connection with the applicant's contention that there had been an abuse of process by the police's (presumably successful) attempts to destabilise the applicant to the point where he could not properly participate in the presentation of his defence at trial[358]. Nothing now turns on the basis for their reception. What is important is that they were before the Full Court.
As the Full Court recorded in its reasons, the reports expressed the author's opinions on the applicant's psychiatric state and his stability. Dr Milton said that certain material to which he referred "established beyond doubt that [the applicant] suffered from a paranoid disorder"[359], that he "manifests at the very least a severe form of the condition [known] as paranoid personality"[360], and that he "suffers from a serious emotional disorder … sufficiently severe as to be likely to qualify for a defence of diminished responsibility were he to face trial for Mr Winchester's murder"[361].
The reports also contained a number of other statements (to which the Full Court did not refer in its reasons) which bear upon the questions raised in this Court. They include references to the applicant commencing psychiatric treatment in December 1966 and continuing to receive treatment during the 1970s. One of his treating doctors or Dr Milton (the report does not make it clear which) is recorded as concluding that "[t]here is no evidence that [the applicant] was actually delusional, but for practical purposes he might just as well have been".
In February 1989, Dr Milton expressed the opinion (to which, as I have said, the Full Court referred) that the applicant "manifests a severe form of the condition known as Paranoid Personality". This must be contrasted with the views, which he recorded in January 1990, that the applicant "should now be regarded as psychotic (ie insane)" and that it may be that he "is not just a paranoid personality but actually suffers a paranoid psychosis and will eventually need to be institutionalised".
No doubt these conclusions must be balanced against other statements in Dr Milton's reports. In August 1990, he recorded his opinion that "[t]here was no suggestion of any schizophrenic thought disorder" and that the applicant "appears well in touch with reality, at least as he perceives it" and "is not delusional". But in September 1992, Dr Milton said that "I believe [the applicant] is, for practical purposes, psychotic, ie out of touch with reality" but that "it would be difficult to substantiate this in terms of the present Mental Health Act".
What, in light of these statements, and the record of the trial, could or should the Full Court have done?
Section 24(1) of the Federal Court of Australia Act 1976 (Cth) provides:

[237]

The present application focuses attention upon what is meant by the requirement that a Court of Criminal Appeal allow an appeal against conviction if "on any ground there was a miscarriage of justice".
That expression should not be given a narrow meaning[366]. Nice questions may arise about how to relate the reference to "miscarriage of justice" in the common form of provision for appeals against conviction and the later reference in the proviso to "substantial miscarriage of justice". Brooking JA has suggested, in R v Gallagher[367], that this is a riddle of the kind which Plutarch records caused Homer to die of chagrin. This problem must, however, be put aside for the moment. What is important, for present purposes, is that an appellate court is bound to set aside a verdict if there has been a miscarriage of justice.
That obligation arises if the appellant contends, and the court concludes from the material before it, that the jury should have entertained a reasonable doubt as to the guilt of the accused (what, for a time, was referred to as the "unsafe and unsatisfactory" ground)[368] but, of course, subject to the operation of the proviso, a Court of Criminal Appeal will also be bound to set aside a verdict if the appellant demonstrates that the trial was not fair. All sorts of circumstances may lead to the conclusion that there was not a fair trial. An accused may be denied a fair trial because his or her counsel is flagrantly incompetent[369] or because he or she does not have any legal representation[370]. There may be incidents which occur during trial that would make the continued trial unfair[371]. And so the examples might be multiplied.
The question that now arises is, however, of a different kind. It is one which goes, not to the fairness of the trial, but to whether there could be a trial at all. The miscarriage of justice said to have occurred is that there has been a trial where there should not have been.
The fact that neither party raised the issue in the Full Court did not relieve that Court of its separate obligation to consider it in this case. Once it is accepted, as in my view it must be, that the question of fitness stands outside the adversarial process of the criminal trial, the facts that the parties to the proceedings at trial did not raise it, and that the trial judge had no cause to raise it, do not lead to the conclusion that an appellate court, armed for the first time with material which suggests the accused may not be fit to plead, is not itself bound to raise that issue for consideration in the appeal. In this respect the question of fitness to plead is very different from other issues which may cause a trial to miscarry. Those issues must be raised by a party to the proceeding; the appellate court has no obligation (and may have no power) to do so of its own motion[372]. But that cannot be so in relation to the issue of fitness to plead, because the issue is one which raises for consideration the validity of the premise which underpins the conclusion that ordinarily it is for the prosecution to prove its case and for the accused to choose the ground or grounds on which to meet the accusation.
The Full Court was bound to set aside the conviction if there was a miscarriage of justice. And there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. That is, to adopt the terms used earlier, there is a miscarriage of justice if there is a real and substantial question to be considered about the accused's fitness. The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this Court[373] and in intermediate appellate courts[374] in which questions of fitness have been raised on appeal. There the question for the appellate court has been treated as being whether there was a question as to the accused's fitness, not whether the appellate court was persuaded that the accused was not fit. Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside.
A conclusion by a Court of Criminal Appeal that an accused may not have been fit to plead or stand trial requires the court to quash the conviction. There has been a trial where the accused may not have been fit and that is a miscarriage of justice. But the further question which then arises is, what consequential order should be made? If the appellate court were affirmatively persuaded that the material before it demonstrated that the accused was not fit, not only would the conviction be set aside, the appellate court would make such order as the trial judge should have made on such a finding. If, however, as would ordinarily be the case, the appellate court could not reach that affirmative conclusion, it would set aside the conviction and order a retrial, thus allowing the statutorily prescribed tribunal to determine the issue of fitness. This was what was done by this Court in Kesavarajah and it is what has often been done by intermediate courts[375] in cases where it was said that the trial judge should have concluded that there was a case for investigation of the accused's fitness.
In this respect the question of fitness does not differ from many cases which come before a Court of Criminal Appeal. In some cases of miscarriage of justice, the court will set aside the conviction and order a new trial; in others, it will set aside the conviction and order the entry of a verdict of acquittal. There is no reason to say of cases where fitness to plead first emerges as an issue on appeal that a Court of Criminal Appeal must itself try that issue to finality and decide whether unfitness is demonstrated.
Cases of fresh evidence offer a useful analogy in some, but not all, respects. If evidence which was not available at trial is adduced on an appeal against conviction, and if there is a significant possibility that a jury, acting reasonably, would have acquitted the accused if the evidence had been before it, the unavailability of that evidence amounts to a miscarriage of justice[376]. Miscarriage of justice is not confined to cases of demonstrated error at trial. Further, the assessment of evidence (at least evidence going to the issue of guilt) is ordinarily a matter for the tribunal of fact - the jury - not for the appellate court. It follows that, ordinarily, in such a case, the appellate court sets the conviction aside and orders a new trial. But, as Barwick CJ pointed out in Ratten v The Queen[377], there may be cases where the new evidence persuades the appellate court that the accused is innocent, or at least that a reasonable jury must entertain a doubt as to guilt[378]. In such a case the conviction would be set aside and a verdict of acquittal entered.
The analogy with cases of fresh evidence breaks down, in my view, in relation to the degree of persuasion the appellate court must have that the relevant issue is a live issue. (In a fresh evidence case, the issue is of guilt or innocence; in the present case, it is the issue of fitness to plead.) Gallagher held that there must be a "significant possibility" of acquittal, although Gibbs CJ warned against regarding the particular form of expression adopted as "an incantation that will resolve the difficulties of every case"[379]. How to formulate the quality which must attach to fresh evidence to ground a successful appeal was considered further in Mickelberg[380] but it is not necessary, for present purposes, to stay to consider details of that discussion. Fitness to plead, going as it does to whether there could be a trial, raises different issues from those that arise in relation to cases of fresh evidence. In cases of fresh evidence (where guilt has already been decided by a jury) there is the competing consideration of the desirability of treating jury verdicts as final. No such issue intrudes in relation to fitness to plead for, as I have said, the issue is not guilt or innocence of the charge or how the trial should have proceeded. The issue is whether there should have been a trial. Accordingly, I consider the appropriate test in the present case to be as I have stated earlier: must the Tribunal, if the question had been put to it and it had acted reasonably, have found the accused to be fit to plead and stand trial?
The material to which I have referred as being before the Full Court was such as to require the Full Court, of its own motion, to raise with the parties to the appeal to that Court whether there was a question about the fitness of the present applicant to plead and stand his trial. On the material to which I have referred, I do not consider it possible to say that a finding that the applicant was fit was inevitable.
No doubt the fact that neither the prosecution nor the defence suggested, either at trial or on appeal, that there was a question about the applicant's fitness to plead and stand his trial is a very important consideration suggesting that the applicant was fit. But three other matters must be considered. First, there was expert medical opinion that in 1992 the applicant suffered from a serious emotional or paranoid disorder that might be characterised by delusions. Secondly, there was the record of the way in which the trial had been affected by the applicant's conduct. Thirdly, there was the Full Court's own conclusion that some of that conduct had no reasonable or rational basis.
The Full Court not having raised the issue, the prosecution, as respondent to the appeal, had no opportunity of meeting the material which raises the question. In these circumstances the proper order for this Court to make is to grant special leave to appeal, treat the appeal as instituted and heard instanter and allowed. The order of the Full Court of the Federal Court should be set aside and the matter remitted to that Court for further consideration in conformity with the reasons of this Court.
CALLINAN J. The applicant in this case was convicted of murder in the Supreme Court of the Australian Capital Territory (Carruthers AJ) on 3 November 1995[381]. His appeal to the Full Court of the Federal Court of Australia (von Doussa, O'Loughlin and Cooper JJ) was dismissed on 25 June 1997.
He then challenged, unsuccessfully, the verdict on constitutional grounds in this Court. At the same time as he mounted his constitutional challenge he applied to this Court for special leave to appeal.
The applicant's application for special leave to appeal was initially based upon evidence that was sought to be tendered as fresh evidence. During argument a further question was raised, whether, by reason of what appeared in the transcript of the trial and what occurred during the hearing of the appeal to the Full Court of the Federal Court the Full Court should have considered whether an issue of fitness to plead arose.
The applicant's trial commenced on 16 May 1995. There were almost 7,000 pages of transcript and in excess of 300 documentary and other exhibits. More than 200 witnesses gave evidence. The trial before the jury lasted until 3 November 1995. The applicant, who gave evidence at his trial, denied any involvement in the killing.
It is the applicant's contention, that, from beginning to end, the applicant was unfit to plead and that the trial Court failed in its duty to have proper regard to that matter.
It may be taken as clearly settled at common law that no one may be tried for a crime unless that person is mentally competent to defend himself or herself, and further, is able to understand the proceedings and the nature of the evidence to be led[382].
It is also well settled that when a question arises as to the mental fitness of an accused to stand trial, it is the court's duty to determine the accused's fitness to be tried[383] and that the obligation to conduct such an inquiry exists notwithstanding that neither the prosecutor nor the defence seeks it[384]. The statement of principle in that form says little about a case such as this one in which the question did not arise because the accused expressly instructed that it not be raised, and in which for part of the trial he represented himself in circumstances aptly described by the Full Court of the Federal Court as chaotic[385].
Legislative recognition was given to the principles I have stated, the applicant submits, by the Australian Capital Territory legislature in enacting Pt XIA of the Crimes Act 1900 (ACT) and Pt VIII of the Mental Health (Treatment and Care) Act 1994 (ACT).
Had the issue been raised, that is, that there was a question as to fitness to plead, it would have been for the Tribunal established by the Mental Health (Treatment and Care) Act to arrive at one of the determinations referred to in s 68(2) of that Act. If the Tribunal be satisfied that an accused is fit to plead, the trial continues, or recommences[386]. If the Tribunal determine that a person is unfit to plead, but is likely to become fit within 12 months, the jury is to be discharged and the proceedings adjourned[387]. Provision for review of the accused's condition is to be found in s 69 of the Mental Health (Treatment and Care) Act.
If the Tribunal determine that a person is unfit to plead and is unlikely to become fit to plead within 12 months, a "special hearing" is to be held[388].
In support of his application, the applicant sought to tender a great deal of material. A question was raised at the outset, of the admissibility of much of it on the ground that it was hearsay or founded on hearsay. The respondent also took the stance that much of the material upon which the applicant wished to rely was not fresh in the relevant sense and was therefore inadmissible on that ground as well. A great deal of the questionable material was contentious. And because of its contentious nature the respondent's counsel submitted that if the Court were minded to receive it, he should be entitled to cross-examine the deponents to it. The primary position of the respondent was that the decision and reasoning of this Court in Mickelberg v The Queen[389] precluded the reception of any evidence by this Court, whether on the hearing of an application for special leave, or an appeal. As to this, the applicant made three submissions: that Mickelberg did not foreclose the possibility of the reception of fresh evidence on the hearing of an application for special leave; alternatively, if it did, then Mickelberg should be reconsidered and overruled; and, in any event Mickelberg was distinguishable on other grounds.
In determining whether to grant special leave, this Court is not yet exercising any appellate jurisdiction. The jurisdiction bears some resemblance to the jurisdiction which the Court exercises in its original jurisdiction, in that it may have to determine some factual and, on occasions, mixed factual and legal questions, but the ambit of those questions is defined, and is defined exclusively by s 35A of the Judiciary Act 1903 (Cth)[390]. Accordingly, although the factual matters that are relevant to these questions are often non-contentious, the Court may sometimes need to receive evidence of facts relied on to satisfy the criteria for a grant of special leave prescribed by s 35A of the Judiciary Act. Evidence tendered on those issues to be received should be in an admissible form.
McHugh J (speaking for a Court constituted by himself, Kirby and Callinan JJ) in Deputy Commissioner of Taxation v Woodhams[391] said this, meaning, by "affidavit evidence", evidence by affidavit in an admissible form:

[239]

At present Mickelberg does stand in the way of the reception of fresh evidence on the hearing of any appeal by the Court. It would be futile to grant special leave on the basis that fresh evidence is available for consideration by this Court if the Court has no jurisdiction to receive and act on such evidence on appeal if leave be granted.
Some discussion of the material upon which the applicant initially sought to rely in support of the argument that Mickelberg should be reopened is necessary. It fell into different categories: some of it was no more than matter which emerged during, and was apparent from the transcript of the evidence, submissions and statements made during the trial, that is to say, matter that was on the record and to which this Court clearly might have regard. No issue arises as to the use of that.
The balance of the material may generally be divided into three categories. One of these consisted of evidence of the legal representatives of the applicant at his trial as to his instructions to them, manifestations of bizarre behaviour that they observed at that time, and some observations that they made as lay people of his apparent mental state[392]. I will refer to this category of evidence as the lawyers' evidence.
The next category of material sought to be tendered was contained in psychiatrists' reports and recounted what others, principally the applicant, had told these experts. I will refer to this as the hearsay evidence. No affidavit was filed by the applicant himself.
The last category of evidence included the expert opinions of the psychiatrists who necessarily placed much reliance upon not only the lawyers' evidence but also the hearsay evidence.
I will say something in a preliminary way about the hearsay evidence first. In my opinion it is unlikely that there would be any basis upon which it could be received in its present form, either upon the application for special leave or on appeal. Sometimes there are misconceptions about the evidence that experts are entitled to give. One of these is that experts may always swear as to the issue[393]. Another is that experts are allowed to give hearsay evidence. So much of the psychiatrists' reports in this case as recount what the applicant told them (apart from any bizarre statements being themselves manifestations of mental infirmity[394]) would seem fairly clearly to be hearsay. The objection to it would appear therefore to be well founded but I need not, having regard to the ruling that the Court made and to which I will refer, finally resolve the objection. If it were admissible, it is difficult to see any reason why the respondent should not be permitted to cross-examine on, and to tender evidence in answer to it.
Much of what the applicant and some others have told the experts, none of whom have sworn affidavits, is the foundation for the psychiatrists' opinions about the applicant's mental condition. If the basis upon which the opinions are formed is evidentially unsound then the opinions also could neither be received nor be of any weight or value if they were, unless there is some statutory basis for their reception[395].
The lawyers' evidence was tendered in a form which appears to be admissible. The only purpose of receiving the lawyers' evidence, as well as any other evidence (save for such of it as relates to the criteria for the grant of special leave) would be to assess it to decide whether, if it were led at a trial there would be a significant possibility of a result different[396] from that which was reached at the original trial, of guilt of murder. Not only must a person seeking to tender such evidence on an appeal make out such a significant possibility, he or she must also demonstrate that the evidence is fresh evidence[397], in the relevant sense.
I am of the opinion that the sort of evidence which the applicant may be able to adduce (if put in proper form) would probably be capable of being classified as fresh evidence. Ordinarily evidence will only be fresh if it could not with reasonable diligence have been discovered by the litigant or his legal advisors[398]. Subject to one qualification, diligence on the part of the advisors at the trial would be unlikely to have enabled them to gain access to and lead evidence of, the fact of the applicant's mental infirmity. His express instructions prevented that. The qualification is that the applicant was in possession of reports by Dr Milton, a psychiatrist, for part of the trial[399]. It is not clear whether his lawyers when they were representing him also saw those reports. However, if they did, they would have been forbidden to use them to raise any issue of unfitness by the applicant. And his own mental infirmity (if it truly existed) was the very thing which operated to prevent its ascertainment by expert and other evidence and disclosure of it to the Court. Such evidence appears therefore to be capable literally and substantively of qualifying as fresh evidence.
After some inconclusive debate about the admissibility of the material to which I have referred the Court made a ruling as follows[400]:

[256]

"The main - and, in my view, the only strong - consideration favouring a conclusion that this Court lacks any power at all to receive further evidence on an appeal from a State Supreme Court is to be found in authority. There are cases in this Court which provide clear support for the proposition that the appellate jurisdiction conferred by s 73 carries with it no power whatsoever to receive fresh evidence. However, in none of those cases was it necessary for the purpose of deciding the particular case to lay down a broad and unqualified rule that the Court lacked all power to receive further evidence in the performance of its appellate functions. In so far as general statements to that effect in those cases were based on preconceptions about reserved 'State judicial power', they were, as I have indicated, based on a mistaken foundation. In so far as such statements were based on the view that the English Court of Appeal or the House of Lords had no power to hear further evidence on appeal[427], they are contrary to the subsequent decisions of those courts. In so far as those statements were based on a perceived need to identify actual error by the court below on the material before that court, they were based on an unduly narrow perception of the function of the appellate process in a modern context. In so far as those statements were based on the distinction between appellate jurisdiction and original jurisdiction[428], they appear to me, with due respect, to miss the point. If further evidence is received as an integral part of the appellate procedure, it will not be received in the exercise of original jurisdiction. Even if its receipt did involve the exercise of 'original' jurisdiction, the question would remain whether the power to exercise such original jurisdiction was an incident of the grant of appellate jurisdiction. Thus, evidence that an applicant for special leave to appeal from an order affirming his conviction was about to be hanged would undoubtedly be received by the Court in the exercise of its incidental power to preserve the subject matter, 'human or not', of an appeal pending decision[429]. It is simply not to the point to assert that that incident of the grant of appellate jurisdiction under s 73 involves the exercise of original, rather than appellate, jurisdiction."

[264]

It is interesting that in Ronald v Harper[437] although Griffith CJ rejected the submission that the Court could and should receive fresh evidence on appeal, his Honour was obviously concerned to show that that rejection did not there involve any injustice, for, at some length he went on to consider the evidence tendered and to analyse it to demonstrate that it could not have produced a different result if it were to be received[438].
Barton J[439] adopted a similar approach to that of the Chief Justice and also went on to analyse (as did O'Connor J) the evidence. O'Connor J[440] did refer to s 73 of the Constitution but made no attempt to explore the meaning of its last paragraph and made no reference to the power of the Privy Council, available since 1833, to receive fresh evidence on appeal. Neither the short note in the report of the argument nor any of the judgments refers to that power of the Privy Council.
This Court would probably practically never be called upon to make a final decision on the basis of fresh evidence. All that the Court would in practice do would be to assess its cogency and persuasiveness for the purpose of deciding, whether to order a new trial, or that the intermediate court of appeal consider the fresh evidence, the latter being a course of a kind contemplated by Griffith CJ with equanimity "in the interests of justice" in Scott Fell v Lloyd[441] after his Honour had reaffirmed what he had held in Ronald v Harper[442].
This is, as I have pointed out, the usual practice of appeal courts after considering fresh evidence[443]. In Murphy v Stone-Wallwork (Charlton) Ltd[444], no new trial was ordered following the reception of fresh evidence only because the parties had agreed to an assessment of damages, if the appeal were to succeed[445]. It should be kept in mind that historically strictly there was no appeal from the verdict of a jury; all that was available was an application to a higher court for a retrial[446]. In Australian Iron and Steel Ltd v Greenwood, Windeyer J explained the reasons for this[447]:

[266]

The continuing force of Mickelberg gives rise to this anomaly. Assume here that persuasive fresh evidence had become available the moment before the intermediate court of appeal was to pronounce its final judgment. It is likely that it would then have been received and acted on by the Court, and, on appeal from that Court to this one, acted upon here in considering the correctness of the decision of the intermediate court if special leave had been granted. However if the evidence became available immediately after the pronouncement of the judgment of the intermediate court of appeal the applicant might be left to such remedies only as the Executive in its discretion might permit him under s 475 of the Crimes Act[450].
The tendency in this Court seems to be towards applying current principles to the grant, or the withholding of prerogative writs pursuant to s 75(v) of the Constitution[451]: the Court equally should receive fresh evidence on appeal in an appropriate case in a manner which reflects the generally ample nature of the modern appeal and also, the amplitude of the powers of the Privy Council exercisable since 1833.
It follows that I would, if a foundation could be laid by the tender of evidence in proper form and of sufficient force, (subject to the respondent's right to test that evidence) be prepared to grant the application for special leave to appeal on the ground that the case raised the important question, whether Mickelberg's case should be reconsidered.
There is no majority view to a similar effect. I move therefore to the other arguments that the applicant advanced.
It should be said at the outset of the consideration of these that the applicant's conduct and attitude to his trial and appeal placed almost everyone involved in this case in an almost impossible situation. No valid criticism can be made of any of them. Carruthers AJ never, for example read what I will refer to as the Milton reports because they were not received in evidence at the trial[452].
The summary of the Milton reports provided by Kirby J in his reasons relieves me of the task of detailed reference to them. The respondent had custody of those reports, and provided them to the applicant's lawyers, but quite properly did not seek to rely on them at trial because, presumably, of their highly prejudicial content. The applicant's lawyers were strictly forbidden reliance on them by the applicant, as a basis for any contention that he might be unfit to plead. As will appear however the Full Court, unlike the judge and jury at the trial did have the Milton reports before them. But it was not there argued, as it is now, that those reports, either alone or in combination with behaviour as recorded in the trial transcript, presented any question of fitness to plead which the Full Court should have pursued. There was no ground of appeal raising such a question, although, as will appear, the Milton reports were before, and were referred to by, the Full Court.
However, that is not the end of the matter, because, the applicant argues, notwithstanding the absence of a relevant ground of appeal, or any argument by the applicant, that he was, or might have been unfit to plead, there was material before the Court, which (according perhaps to counsels of perfection in hindsight) should have alerted the Court to the possible existence of such a question.
It is necessary therefore to consider the material (other than the so-called fresh evidence) relied upon, for two purposes: to decide whether all or any of that material was properly before the Court; and, if it was, whether it was sufficient to give rise to the possibility that the applicant might have been unfit to plead at his trial.
The recorded manifestations of allegedly bizarre behaviour were undoubtedly properly before the Full Court to the extent that they could be discerned from the transcript at the trial. The Milton reports did, albeit in a somewhat unusual fashion, find their way into evidence. The starting point is the notice of appeal of the applicant in the Full Court. The relevant grounds are 1(d), 11 and 13, which I set out below[453]:

[283]

It is against that background that the following questions have to be answered. Do the Milton reports and the recorded manifestations of the applicant's behaviour at the trial give rise to a question of the applicant's fitness to plead at the trial? Does that material in combination show, in fact, either that the applicant was or may have been unfit to plead at the trial? What orders could and should the Full Court of the Federal Court have made? If this Court is of the opinion that the Full Court should have had regard to the question of the applicant's fitness to plead at the trial, how should the applicant's application for special leave to appeal be disposed of by this Court?
I turn then to the first of these matters. The purpose of the making of the Milton reports was not to explore the fitness of the applicant to plead. However, over the period 1989 until 1992 up until two and a half years before the commencement of the trial he made 12 detailed reports that involved assessments of the applicant's psychiatric condition.
In his last report of 4 September 1992, Dr Milton stated that he had observed the applicant for about an hour in court until the latter was removed at the direction of the Magistrate who was conducting his committal. He then referred to a tape recording, to which he had listened, of an abusive telephone call made by the applicant, and various statements by other people as to what they had seen and heard the applicant do and say from time to time. In his earlier reports he had referred to similar material that had been progressively gathered.
Dr Milton concluded that the applicant had demonstrated virtually all of the features typically associated with a paranoid personality disorder[455]. He believed for all practical purposes that the applicant was psychotic and out of touch with reality, adding that "it would be difficult to substantiate this in terms of the present Mental Health Act". After some further discussion of the applicant's violent propensities, Dr Milton provided advice as to the appropriate way those who might encounter the applicant during legal proceedings should deal with him. Because of the basis upon which the Milton reports were tendered, and the fact that his fitness to plead was not an issue joined by the parties in the Full Court, no attempt was made to question Dr Milton's assessment of the applicant "in terms of the present Mental Health Act". And, as I have already indicated, in my view, Dr Milton may not have been permitted (over objection) to swear to the precise and final issue which would be for the Court or, if appropriate, for the Tribunal if the matter had been raised.
It is enough to point out with respect to the earlier reports that they contain similar observations about the conduct of the applicant and his mental condition, including that the applicant probably had a genetic predisposition to a severe mental disorder. One further reference is required and that is to a prognosis made in a report by Dr Milton of the view of another psychiatrist, Dr McDonald who had earlier formed the view that the applicant had been suffering paranoid psychosis and would need to be institutionalised eventually[456].
I interpolate at this point that any deficiencies in form in Dr Milton's evidence (by reason of its hearsay nature and otherwise) should be treated as having been cured by the concessions of the respondent at the appeal that I have quoted.
Little in my opinion turns upon Dr Milton's statement that "it would be difficult to substantiate this [the applicant's psychotic state] in terms of the present Mental Health Act". Section 68(2)(a) of the Mental Health (Treatment and Care) Act requires the Tribunal to determine on the balance of probabilities whether or not a person the subject of the charge is fit to plead to it. Fitness is nowhere defined and should not be taken to be synonymous with any particular or necessarily precise psychiatric definition.
I have formed the opinion that the Milton reports and the recorded manifestations of the applicant's behaviour at the trial taken in combination, did present a question for decision by the Full Court, whether or not there was a need to consider the possibility that he might not be fit to plead. At the very least the Milton reports point to a highly disturbed, often, delusional person with irrational thoughts and suffering a diagnosable psychiatric condition which might become progressively worse beyond the period with which the reports were concerned. On one view, certainly, his conduct at the trial could be regarded as merely manipulative, but on another, it could be seen as irrational and highly prejudicial to his own cause: in particular, to state repeatedly to the trial judge, as he did, that his Honour was condoning judicial harassment could not possibly have improved his prospects.
Regard might also be had to his highly erratic performance in reinstating and withdrawing instructions for his defence the details of which are set out in the judgment of the Full Court[457]:

[295]

On the other hand, his conduct was often that of an articulate and resourceful person and it is only the combination of the observations and opinions stated in the Milton reports and the recorded manifestations of his personality at the trial that bring me to the conclusion I have reached, that the applicant may have been unfit to plead.
The second question is what orders could and should the Federal Court have made other than the order dismissing the appeal.
Section 27[458] of the Federal Court of Australia Act 1976 (Cth) provides that in an appeal the Federal Court shall have regard to the evidence given in the proceedings out of which the appeal arose. The Court has the power to draw inferences of fact and, in its discretion, to receive further evidence. This evidence may be taken, as appropriate, orally or in written form. This provision has been conservatively construed by the Full Federal Court and in a manner somewhat similar to the way in which other courts of ample jurisdiction have approached the question whether the evidence is receivable as "fresh evidence"[459].
It is unnecessary in this case to comment upon the correctness or otherwise of those decisions of the Full Court of the Federal Court and to decide whether further evidence as used in s 27 of the Federal Court of Australia Act should have the same meaning as that term was construed by this Court to have when used in the Family Law Act 1975 (Cth) in CDJ v VAJ[460].
By consent (subject to relevance) the evidence was received here. Plainly it did have relevance, not only to the grounds argued in respect of it, but also, as it turns out, to the matter with which this Court is concerned, and, in an ideal world, the Full Court might have discerned.
Division 2 of Pt XIA of the Crimes Act 1900 (ACT) is concerned with, inter alia, fitness to plead. Section 428E provides that where on the trial of a person charged with an indictable offence if the Court is satisfied that there is a question as to the person's fitness to plead to the charge the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge. Section 428E which appears in that division provides as follows:

[301]

Whilst in terms the section refers to a trial and not an appeal and to the "Court" which, by definition, is the Supreme Court of the Australian Capital Territory, s 28[461] of the Federal Court of Australia Act by par (b) of sub-s (1) confers ample power upon the Full Federal Court to make such order as, in all the circumstances, it thinks fit, which would include an order, if appropriate, that the court appealed from could and would have made, had it been apprised of the further evidence available to the Full Court. The Full Court also had power pursuant to O 34 r 2 of the Federal Court Rules to inquire and report on the question.
That the Full Court should have such a power is in a case of this type particularly apt having regard to the well-established principles with respect to fitness to plead.
From very early times in England except for a period during the reign of Henry VIII[462] if a man committed a capital offence whilst of sound mind but became mad before arraignment he could not be arraigned for the crime. And as far back as pre-Norman times King Alfred hanged Cole, one of his judges because he judged Ive to death when he was a madman[463]. The English courts also recognised that a defendant who did not plead could stand "mute of malice" or mute "by visitation of God"[464]. Procedural fairness in a criminal trial requires that the accused be aware of the nature of proceedings and be capable of participation in them in a fit state to defend himself[465].
It is now well established at common law that a finding of unfitness bars further trial and there is statutory jurisdiction in force in most jurisdictions[466] to enable this matter to be determined separately from the trial process. It has been held that, before the question of fitness has to be pursued there must be a "real question"[467] or a "real and substantial question"[468] or a "serious question"[469] on the material before the court.
In R v Khallouf the Full Court of the Supreme Court of Victoria (Young CJ, McInerney and Tadgell JJ) said[470]:

[305]

It has also been said that a trial judge may rely on committal depositions and papers, psychiatric reports from prison medical staff or upon his or her own observations of the demeanour of the accused[474]. In other words an issue of fitness to plead is an issue that stands outside the ordinary rules applying to adversarial proceedings, that the issues are those upon which the parties are joined. In this case however I am content to rest my decision on the evidence which was received and could properly be treated as admissible evidence.
It follows in this case, in my opinion, that the Full Court could and should have given consideration to the possibility of making an order that would have had the effect of requiring the applicant's fitness to plead at his trial to be determined by the Tribunal. The precise form of that order does require some further discussion.
I agree however with the Full Court of the Supreme Court of Victoria in Khallouf[475] that satisfaction of the existence of such a question falls short of any conclusion as to the proper answer to it. As Mackay writes in Mental Condition Defences in the Criminal Law[476] there are many defendants who have warped standards of morality but are fit to plead[477].
I am of the opinion that in the circumstances the members of the Full Court should have turned their minds to the possibility of the existence of a question of the applicant's fitness to plead at the trial.
The last question is how the applicant's application for special leave to appeal to this Court should be disposed of? The issues as to whether the relevant question of fitness to plead arose, and if it did, what should follow were fully argued, with each party in agreement on the course which should be followed if the applicant were to succeed here. The respondent accepted that if the appeal were upheld the matter should be remitted to the Full Court for further hearing in that Court. Accordingly, I would order that special leave be granted, that the appeal be allowed, the order of the Full Court of the Federal Court dismissing the appeal be set aside, and that the matter be remitted to the Full Court of the Federal Court for further hearing and determination whether there was a question as to the appellant's fitness to plead at the time of the trial.

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