The learned magistrate noted, for the purposes of the fresh hearing on s32, that "the application for a stay has been refused".
28 It is convenient first to deal with the problem arising from the appellant's unfitness for trial. Even though, in the case of a charge being heard in the Local Court, there is no statutory enactment either dealing with determination of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried, it seems to me that, where a defendant is found not fit to be tried, he or she must be discharged. So much is the effect of the judgment in Ngatai v The Queen (1980) 147 CLR 1 at 7-8, per Gibbs, Mason and Wilson JJ-
"…If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such a case no doubt he should be discharged."
29 In this case there is no relevant mental disability that would bring the appellant within the provisions of the Mental Health Act and the consequence must be that, if unfit to be tried, she must be discharged; see also Pioch v Lauder (1976) 13 ALR 266.
30 In Mailes 53 NSWLR at 279 Wood CJ at CL described Presser as a "seminal case" on the question of fitness to plead. In passages cited with approval by Wood CJ at CL, Smith J said that "the question … is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him" going on to specify the following standards, which have been widely adopted (1958 VR at 48) -
"He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and his counsel, if any."
31 In Eastman v The Queen (2000) 203 CLR 1 the issue of fitness to be tried arose in the context of s428E of the Crimes Act 1900 (ACT) and s68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT) in relation to whether an appellate court has a duty to consider fitness to plead of its own initiative, that is, where the matter had not been raised at trial. Wood CJ at CL quoted with approval the following passage from a judgment of Gaudron J (which was not questioned in any of the other judgments, although her Honour was in the minority as to the outcome of the case), (203 CLR at 21-23) -
"'[59] A number of matters should be noted with respect to what was said in Presser . The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue….
[62] 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. … 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'. To put the matter another way, there is a fundamental failure in the trial process.
[63] 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. 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. That is the basis upon which this Court proceeded in Kesavarajah v The Queen where the question of fitness to plead should have been but was not submitted to the jury for determination.
[64] 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'. 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.
[65] 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." (Footnotes omitted, emphasis added).
32 It is evident that the prosecution and, for that matter, the learned Magistrate accepted that the evidence of both Mr Hudman and Ms Pikett was both accurate and reliable. In dealing with that material, as appears from the extract of the learned Magistrate's judgment which I have set out above, his Honour concluded that the appellant had some ability to understand the proceedings, noted that she had given a version of events and, I think, accepted that she was handicapped both in giving evidence and responding to other evidence given in the proceedings, these being matters which the court "would have to take into account".
33 It seems to me, with respect, that the learned Magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. If a defendant is not fit to stand trial in the Presser sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way. Some elements of unfairness may be able to be overcome by, for example, requiring the cross-examiner not to put leading questions to the appellant, but such an order strikes me as involving an inappropriate interference with the conduct of the trial by the prosecution. It is difficult to think of any other orders that might compensate for the fundamental limits in understanding and ability to communicate, especially an ability to communicate in the court environment, which were identified by Ms Pikett and Mr Hudman.
34 As the Crown Advocate pointed out during submissions in this Court, the learned Magistrate did not make any finding that the appellant was unfit for trial. His Honour approached the question facing him as being whether he could, by making some adjustments in the way in which the proceedings were undertaken, ensure that the trial was fair.
35 In my view, the question of fitness for trial is fundamental. In some cases, adjustments can be made to overcome the defendant's unfitness, as by providing a deaf person with a signing interpreter. But this is not to make the trial of a person who is unfit for trial a fair one: it is to remove the unfairness.
36 In my respectful opinion, there were no orders that the Court could have made that were capable of overcoming the appellant's unfitness. Where a defendant does not understand the nature of a plea, the elements of the charge and the essential nature of the proceedings, it does not make such a trial fair even though he or she is able to give a version of events. At all events, a fundamental problem identified both by Mr Hudman and Ms Pikett was that the appellant was simply not in a position to give that version of events in the court environment and deal with even an entirely proper cross-examination. Sympathetic allowance for the appellant's problems in this regard does not overcome the fundamental unfairness which her unfitness in respect of these matters demonstrates. This is not less so because it appears, as it happens, that the appellant has a good defence to the charge which might well result in her acquittal.
37 It is not, of course, appropriate for me simply to substitute my view of the facts for that of the learned magistrate. However, I am satisfied that his Honour erred in law in his consideration of the question of whether the appellant was unfit to stand trial.
38 As I have mentioned, the appellant also seeks to appeal from the order of the Magistrate declining to proceed under s32 of the Act. In order to establish this ground, it is necessary to demonstrate an error in the sense articulated by the High Court in House v The King (1936) 55 CLR 499. The decision whether or not to proceed under s32 depends upon a conclusion by the magistrate that "it would be more appropriate to deal with the defendant in accordance with the provisions of [Part 3] than otherwise in accordance with law": para 32(1)(b). In making such a decision the magistrate can consider not only an outline of the facts alleged but also any other evidence considered by the magistrate to be relevant.
39 This provision was recently considered by the Court of Appeal in DPP v El Mawas [2006] NSWCA 154. McColl JA (with whom the other members of the Court agreed) pointed out that the magistrate was required "to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s32(1) or mental illness (s33) with the object of ensuring that the community is protected from the conduct of such persons". In this respect, the provision has a diversionary purpose. I am not sure quite what her Honour meant by the phrase "full weight of the law", since it is clear that, in many cases, an alleged offender might well be innocent of any charge. But I do not apprehend that her Honour intended any more than a reference to the sentencing options available upon conviction or a finding that the offence has been proved. Such options include, of course, fulltime imprisonment but also a number of other possible courses of action designed to ensure that the sentence of the court is consonant with a just outcome that takes into account the objective circumstances of the offence and the particular subjective circumstances of the offender.
40 It is self-evident that a significant feature of any consideration of whether or not to proceed under Part 3 is the nature and hence, amongst other things, the seriousness of the alleged offence. Furthermore, in considering whether diversion is "more appropriate" than proceeding according to law, the magistrate is entitled indeed, in my view, bound to consider as a relevant matter the realistically available sentencing outcomes in the event of conviction. It would be entirely proper, on the assumption that sufficient pertinent material was placed before his or her Honour, even decisive significance on the sentencing options realistically available and appropriate in the event the offence were proved. By way of example, if the magistrate thought that it was very likely that a non-custodial option would be appropriate, then the balancing exercise would necessarily take that into account; a fortiori, if seemed that such an option was inevitable. Of course, the ability to realistically assess such a question would depend upon the extent of the available material. The powers of the magistrate in exercising the jurisdiction are wide. They were described by McColl JA as "powers of an inquisitorial or administrative nature…[demonstrating] the breadth of the enquiry the magistrate is entitled to undertake in determining whether to send a defendant along the diversionary route, or leave him or her to be dealt with in accordance with law": El Mawas at [74].
41 In this case the learned Magistrate had, as I have indicated, a great deal of information about the appellant and the substantial assistance she had been and was being afforded by various community and government agencies, together with an outline of the alleged facts. His Honour's decision of 12 August 2005, as I have pointed out, gave significance to the criminal history of the appellant. In this respect, I think his Honour was considering not only the retributive and deterrent aspects of sentence but also the apparent failure of diversionary measures in the past to effectively change the appellant's conduct. His Honour pointed out that "the reports which have been tendered strongly suggest that long term treatment is essential" and pointed out that the effect of Part 3 was to limit supervision by the court to a period of six months.
42 This limit is, in substance, correct if the magistrate makes an order dismissing the charge under s32(3). However, the magistrate can also take action under s32(2) adjourning the proceedings, granting bail with or without conditions or making "any other order that the magistrate considers appropriate".
43 I interpolate that it is obvious that the last power is necessarily ancillary to the exercise of the magistrate's functions under s32, for example, imposing positive conditions as to residence, conduct, supervision or assessment during the adjournment or perhaps requiring further reports or information. The precise meaning of s32(2) is not easy to determine, having regard to the undoubted powers at all events available to a magistrate to adjourn proceedings, grant bail and make ancillary orders relating to the conduct of the proceedings. It is difficult, therefore, to see the purpose of inserting s32(2) in Part 3 unless it were intended as widening in some way the general powers of the magistrate, perhaps by permitting an interim position to be brought about before determining whether to make the order referred to in s33(3). It is important to note that the power given by s32(2) can only be exercised when the magistrate has made the decision required by s32(1)(b) so that, for example, an adjournment under s32(2)(a) could not be made for the purpose of considering whether it was more appropriate to divert a defendant rather than dealing with him or her in accordance with law. At the same time, the general power to adjourn proceedings must permit a magistrate to do so before making any decision under s31(1). I note also that it appears from the terms of s32(3) that the magistrate is not bound to make an order dismissing the charge although, having decided that the conditions of s32(1) are satisfied and having decided not to take action under s32(2), it seems inevitable that an order must be made under s32(3). I mention these matters simply to demonstrate that it might have been open to the learned Magistrate to have adjourned the proceedings in exercise of his Honour's general power to see how the appellant was coping with the regime then in place pursuant to the bond.
44 As has been mentioned, the appellant was already subject to a bond under s9 of the Crimes (Sentencing Procedure) Act 1999. In effect, the appellant was placed under the supervision of the Aboriginal Family Health worker and required to accept directions as to residence, non-consumption of intoxicating liquor and the like. She was also required strictly to comply with a current apprehended violence order that prevented contact with her brother. It is evident from the material that was tendered before the learned magistrate that the appellant was complying with the terms of the bond, and with the requirements of the AVO.
45 It seems that, for the reasons given, the Magistrate may have been able (if he had made a determination that diversion was appropriate under s32(1)) to deal with the appellant under s32(2) and then, when satisfied that the discretion under s32(3) should be exercised, doing so at that point. This could have extended by a considerable margin the six months' limit to which his Honour referred. It is fair to say, however, that this possibility was not put to his Honour and that the sole order sought was one under s32(3). In that respect, the learned Magistrate's concern that the effective period of supervision was six months was, in my view, undoubtedly relevant. His Honour concluded, as he was entitled to do, that if he were to make an order under s32(3), it would not "be fruitful in delivering the results identified in the experts' reports" and went on to
say -
"The prosecution strenuously opposed s32 discharge for what must be considered as valid reasons. I am satisfied that the criminal law can respond in an appropriate way. In relation to an AVO by consent…that may well keep the accused and the victim apart but that does not guarantee treatment. The experts are all of one mind: a long-term rein is required. It's apparent at this point that the accused is responding well and that is as a result of the operation of the criminal law and that operation of the criminal law sits comfortably with the report of Mr Hudman, and that course has a proven success rate in the past, particularly in relation to offences involving the same victim [i.e. the appellant's brother]."
46 His Honour therefore concluded that, although he accepted the thrust of the submissions made by Ms Pikett he thought that the short period of a s33 discharge meant that taking that course was not "more appropriate" than dealing with the defendant "otherwise in accordance with law". In this context, it is obvious that the learned Magistrate had in mind a non-custodial disposition that would give a longer period of Court supervision than would be the case had he made an order under s32.
47 It is principally submitted on the appellant's behalf that the learned Magistrate erred "by going outside the ambit of what the Act allowed… taking into account the legislative requirement that orders pursuant to the Act can only last for six months". This submission must be rejected. In my view, not only is that not an error but it was an essential matter to take into account. It seems to me obvious that, in exercising the discretion under s32 of the Act, a court must take into account the whole of the legislative scheme that it embodies, one part of which, clearly enough, is the effect of any orders that might be made under s32(3).
48 It is also submitted that the learned Magistrate erred by treating a decision to deal with the defendant according to law "as if that equated to punishment". I do not agree. It was, of course, necessarily implicit that, if the appellant were dealt with according to law, it would first be necessary to establish her guilt of the charge. But, in considering the appropriateness of diversion, it was entirely proper for the Magistrate to consider the range of outcomes that would be appropriate or likely to be appropriate in the event of conviction. In that respect, it is clear enough that his Honour had in mind a bond not dissimilar to that which he had already imposed on the appellant. Of course, his Honour would not have been bound to impose a bond upon conviction but this is not to suggest that the fact that his Honour had in mind that he would do so in the event of conviction was an irrelevant consideration for the purpose of exercising his jurisdiction under s32.
49 It is submitted that the learned Magistrate erred in not considering the question whether the appellant was unfit to plead at all events. As I understand the submission, it is that if a defendant is unfit to plead then it is clearly inappropriate that they should be dealt with according to law and it follows that this should be factored in to a decision whether to proceed under s32. I do not agree with this contention. As I have already said, dealing with a defendant according to law requires that the question of fitness for trial (assuming the matter is raised) to be determined prior to trial. It is not precluded by a refusal to divert under s32. Moreover, even where a defendant is unfit to plead, he or she may still be diverted under s32: Mackie v Hunt (1989) 19 NSWLR 130.
50 When the matter returned to the learned Magistrate on 28 September 2005 a further application to consider the diversion of the appellant was made, as I have mentioned. The learned Magistrate declined to make orders under s32 but gave no reasons for doing so, observing however, "that the criminal law has worked in the past and continues to work today in the form of a s9 bond imposed upon [the appellant] for another offence". It is clear to my mind that his Honour adhered to the view that he had expressed on the earlier occasion that it was not more appropriate to make orders under s32 than deal with the appellant according to law. In my view, the reasons for which the learned Magistrate made his second order appear sufficiently from the transcript of the proceedings as a whole.