Prosecution v Accused

2 Counsel for the prosecution and the defence jointly have proposed that the special hearing be conducted before me as a judge sitting alone under s 21(4), which provides:

If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and -

(a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or

(b) if the trial judge is not so satisfied, must direct that the person be tried by a jury.

Counsel have also jointly proposed that I receive the necessary 'evidence' about the alleged offending from the informant based on his knowledge of the police investigation and the depositions. The evidence about the psychiatric condition of the accused is to be given by taking in the transcript of the evidence of the two doctors in the fitness to be tried hearing and their reports.

3 While I was initially prepared to conduct a hearing under s 21(4) and in that way, on further consideration I developed serious reservations about whether the procedure in s 21(4) could be applied to a person who had been found not fit to be tried. The main reason for my reservations was that a person who was not fit to be tried could not give instructions to counsel to agree to the hearing being conducted under s 21(4) and in that way.

4 Whether the hearing is to be conducted before a jury under pt 3 or before a judge alone under s 21(4) is an important question. The application of the provision involves dispensing with a jury for the trial of the charge against the accused. But it also involves the loss by the accused of the opportunity to test the evidence against him or her and the chance of obtaining a verdict of complete acquittal.

5 Those consequences arise out of the different powers of a judge in the procedure under s 21(4) when compared with the powers of a jury in a hearing under pt 3. As we have seen, the powers of the judge under s 21(4) are to direct a verdict of not guilty because of mental impairment or to direct that the person be tried by a jury. Directing a verdict of not guilty of the offence is not within the judge's power under s 21(4). By contrast, under s 17(1) the following findings are available to a jury conducting a hearing under pt 3:

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

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

Thus, returning a verdict of not guilty of the offence is within the jury's power under pt 3.

6 To my mind, no issue appeared to arise where an accused who was fit to be tried relied on the defence of mental impairment on the ground that he or she was mentally impaired at the time when the offence was allegedly committed. Being fit to be tried and give instructions to counsel, an accused in this position could make an informed decision to agree to dispense with a jury and have the charge dealt with under s 21(4), and also to agree to the informal reception of evidence. An issue did appear to arise in cases like the present where the accused was unfit to be tried and therefore was not able to give such instructions to counsel yet appeared to have available the defence of mental impairment. In that kind of case, it seemed to me that s 21(4) did not allow for substituted decision-making by counsel on behalf of the accused as to dispensing with a jury and the informal reception of evidence.

7 I noted that in Director of Public Prosecutions v CJC[1] Osborn J decided that the procedure in s 21(4) did apply to an accused person who had been found not fit to be tried. In a detailed judgment which rightly emphasised more than once the great benefit of protecting an accused from unnecessary suffering and humiliation, his Honour decided that s 21(4) allowed the legal representative of the accused to decide to dispense with a jury without having to obtain instructions from the client. That conclusion followed from the reference in the provision to the agreement of 'the prosecution and the defence' (emphasis added), rather than the prosecution and the accused.[2]

8 Counsel for the parties in the present case made clear that they were proceeding in reliance on the judgment of Osborn J in CJC. Therefore, as counsel for the accused stated in answer to a question by me, she was not required to obtain the instructions of the accused before agreeing to the dispensation of a jury and the application of the procedure in s 24(1).

9 It would only be with great hesitation and after careful consideration that I would not follow the judgment of Osborn J. However, it is a very serious thing to conclude that counsel can exercise decision-making capacity on behalf of an accused without instructions, especially where the consequence would be that the accused would thereby lose the opportunity to test the prosecution case and obtain an acquittal. As I saw it, such an interpretation had to be made unmistakably clear by express words or necessary implication. The terms of s 24(1) did not seem to me to be unmistakably clear. The terms of s 24(1) are general and to be contrasted (for example) with the terms of s 16(2)(b), which expressly authorises the legal representative of the accused to exercise the rights of challenge of an accused in the selection of a jury in a hearing under pt 3. On the view I took of the proper interpretation of s 24(1), there was (with respect) a real question as to whether CJC had been correctly decided.

10 At the commencement of the special hearing, I informed counsel of these views. I informed them that, on my current understanding of the legislation, the procedure in s 24(1) was meant for cases in which the accused could participate in the proceeding and thus give instructions for dispensing with a jury and having the evidence produced through the informant or by other convenient means. The usual case would be one where the accused was mentally impaired when the offence was allegedly committed but had recovered his or her faculties and was fit to be tried, and had the capacity to give instructions, at the time of trial. The present case did not fall into that category.

11 I invited counsel for the parties to consider whether they wished to make submissions on the issue so that I could rule on it. I brought to their attention that the submissions might need to include reference to the human right to recognition and equality before the law in s 8, and a fair hearing of criminal proceedings under ss 24 and 25, of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

12 After considering the matter, senior counsel for the prosecution announced that she was no longer seeking to have the matter dealt with under s 24(1). Counsel for the defence then announced that the matter could not proceed under s 24(1) as the prosecution and the defence were no longer agreed. I therefore directed that the hearing proceed before a jury under pt 3.

[1] [2008] VSC 585; (2008) 21 VR 581 ('CJC').