[2017] ACTSC 347

CRIMINAL LAW - PRACTICE AND PROCEDURE - Accused previously found unfit to plead to historical child sex charges - proceedings listed for special hearing without consideration whether accused capable of making election for trial by judge alone - whether it is open to accused to make election for special hearing to be trial by judge alone - relationship between s 68B of the Supreme Court Act 1933 (ACT) and s 316(2) of the Crimes Act 1900 (ACT)

Crimes Act 1900 (ACT), ss 61, 92K, 316, 316(1), 316(2), 316(2)(a), 316(2)(a)(i), 316(2)(b), 316(2)(b)(i), 316(2)(b)(ii), 316(3), 316(9), 428J

Criminal Proceedings Legislation Amendment Act 2011 (ACT)

Supreme Court Act 1933 (ACT), ss 68A, 68B, 68B(1)(b), sch 2

R v Chute [2017] ACTSC 246

Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 17 February 2011

Explanatory Memorandum, Crimes Amendment Bill 1999 (ACT)

1. On 24 July 2017 Murrell CJ found that the accused was unfit to plead to an indictment containing 16 counts: R v Chute [2017] ACTSC 246. Her Honour ordered that the matter be listed for a special hearing under s 316 of the Crimes Act 1900 (ACT).

2. By Application in Proceeding, filed on 12 October 2017, the accused sought an order that there be a permanent stay of the special hearing. The grounds for that application are as follows:

1.1. The continuation of these proceedings by way of special hearing will involve an unacceptable injustice or unfairness to the Accused.

1.2. The allegations date back to 1979, some 38 years ago, and as a consequence, the Accused will be severely prejudiced in his defence by this extraordinary delay.

1.3. The Accused suffers from poor health, such that he is unfit to be tried and he has cognitive and memory deficits that significantly impair his ability to defend those allegations.

1.4. The circumstances involved in this prosecution are so unfairly and unjustifiably oppressive as to constitute an abuse of process.

3. The special hearing has been listed to commence on 4 December 2017.

4. I heard argument in relation to the application for a stay on 15 and 16 November 2017. During the course of argument in relation to the stay, it became clear that, following the decision of Murrell CJ, neither the parties nor the Court had given any consideration to the operation of s 316(2) of the Crimes Act. That permits a person who has been found unfit to plead to elect, either directly or via a guardian, to have the special hearing conducted as a trial by judge alone as opposed to a trial by jury.

5. The issue in the present circumstances is whether the fact that the procedure in that section has been overlooked affects the capacity to conduct a special hearing and whether the stay application should be determined prior to the accused having an opportunity, directly or through a guardian, to consider whether to make an election for a trial by judge alone.

6. Section 316 of the Crimes Act provides as follows:

316 Special hearing

(1) Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.

(2) A special hearing shall be a trial by jury -

(a) unless -

(i) the Supreme Court is satisfied that the accused is capable of making an election to have a special hearing to be a trial by a single judge without a jury before the court first fixes a date for the hearing; and

(ii) the accused makes the election before that date; or

(b) unless -

(i) the Supreme Court is satisfied that the accused is incapable of making the election mentioned in paragraph (a) (i); and

(ii) before the court first fixes a date for the hearing, any guardian of the accused notifies the court that, in his or her opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.

(3) The Supreme Court must direct the ACAT to appoint a guardian with power to make an election under subsection (2) (a) (i) if satisfied that -

(a) the accused is incapable of making the election; and

(b) a guardian who has power to make an election of that kind has not been appointed by the ACAT under the Guardianship and Management of Property Act 1991.

(4) If -

(a) the accused makes an election under subsection (2) (a) (ii); or

(b) a guardian notifies the Supreme Court under subsection (2) (b) (ii);

the special hearing shall be by single judge without a jury.

(5) Despite subsection (2) (b), if before the date fixed by the Supreme Court for the hearing -

(a) the court is satisfied that the accused is capable of making the election mentioned in subsection (2) (a) (i); and

(b) the accused notifies the court that he or she objects to the special hearing being a trial by a single judge without a jury;

the special hearing shall be a trial by jury.

(6) Unless the Supreme Court otherwise orders, the accused shall have legal representation at a special hearing.

(7) A decision that the accused is unfit to plead to the charge is not to be taken to be an impediment to his or her being represented at a special hearing.

(8) At a special hearing, the accused is to be taken to have pleaded not guilty in respect of the offence charged.

(9) If a special hearing is a trial by jury, the Supreme Court shall, at the commencement of the hearing, explain to the jury -

(a) the meaning of unfitness to plead; and

(b) that the accused is unfit to plead to the charge in accordance with ordinary criminal procedures; and

(c) that the purpose of the special hearing is to ensure that, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, the accused should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence); and

(d) the actions that are available to the jury under section 317; and

(e) the legal and practical consequences of those actions.

7. As will be apparent, s 316(2) provides that a special hearing shall be a trial by jury unless the accused makes an election under paragraphs (a) or (b). Those two paragraphs deal with the alternative situations that the Supreme Court is satisfied that the accused is "capable of making an election to have a special hearing to be a trial by a single judge without a jury" (paragraph (a)) or that Court is satisfied that the accused is "incapable" of making such a decision (paragraph (b)).

8. Sections 68A and 68B of the Supreme Court Act 1933 (ACT) provide:

68A Trial by jury in criminal proceedings

Criminal proceedings shall be tried by a jury, except as otherwise provided by this part.

68B Trial by judge alone in certain criminal proceedings

(1) A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if -

(a) the person elects in writing to be tried by a judge alone; and

(b) the person produces a certificate signed by a legal practitioner stating that -

(i) the legal practitioner has advised the person in relation to the election; and

(ii) the person has made the election freely; and

(c) the election and certificate are filed in the court before -

(i) the person, or the person's legal representative, knows the identity of the judge for the person's trial; and

(ii) any time limit prescribed under the rules; and

(d) if there is more than 1 accused person in the proceeding -

(i) each other accused person also elects to be tried by a judge alone; and

(ii) each other accused person's election is made in relation to all offences for which that person is to be tried in the proceeding; and

(iii) none of the offences for which any other accused person is to be tried is an excluded offence.

(2) An accused person who elects to be tried by a judge alone may, at any time before the person is arraigned, elect to be tried by a jury.

(3) If an accused person makes and then withdraws an election, the person may not make another election.

(4) In this section:

excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone - excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.

9. Schedule 2 of the Supreme Court Act includes amongst the offences which are defined as excluded offences, s 61 of the Crimes Act. The Crown submitted that this reference to s 61 also picked up the previously renumbered section, namely s 92K of the Crimes Act. In the light of my conclusions set out below, it is not necessary to determine whether this submission is correct.

10. The Crown, which provided at short notice helpful submissions on the issue, makes two submissions about the operation of s 316 in the circumstances of this case:

(a) The first is that s 316(1) requires that a special hearing be conducted as nearly as possible as if it were an ordinary criminal proceeding and that s 68B of the Supreme Court Act qualifies the entitlement of an accused person to make an election so as to prevent an election when the offences alleged on the indictment include most sexual offences, including the offences charged in this case. So long as there is a single count on the indictment which may not be the subject of an election, then an election is precluded in relation to the other charges unless the indictment was severed.

(b) The second is that, on any view of it, the election must be made prior to the Court "first fixing a date for the hearing": s 316(2)(a)(i), (b)(ii) and that because a hearing has been fixed in this case, it is no longer possible for the accused or his guardian to make any election.

11. Section 316 (which was then numbered s 428J) was amended so as to include the capacity to elect for a trial by judge alone in the manner currently permitted by s 316(2) in 1999: Crimes (Amendment) Act 1999 (ACT) (No 32 of 1999). At that point trial by judge alone in relation to ordinary criminal trials was governed by s 68B of the Supreme Court Act which required a process of election and certification by a legal practitioner that the accused had been advised by the legal practitioner and the accused person had made the election for a judge alone trial freely. The new process, which accommodated the position of persons found unfit to plead, was inserted because "an accused person who is unfit to plead may be equally unable to make an election for a trial before a judge ...": Explanatory Memorandum, Crimes Amendment Bill 1999 (ACT), 10.

12. In 2011, amendments were made to s 68B by the Criminal Proceedings Legislation Amendment Act 2011 (ACT) (No 20 of 2011) to limit the capacity of accused persons to make elections for trial by judge alone. The amendment was made because although the entitlement to elect for trial by judge alone was originally contemplated to be exercised in only limited circumstances, over the four year period up to June 2008,

56 per cent of trials in the Supreme Court were conducted by judges alone, the highest rate in Australia: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 17 February 2011, 256 (Simon Corbell, Attorney-General). The Minister noted that in that period the conviction rate in sexual matters tried by judge alone was nine per cent and that the conviction rate in charges of murder was zero per cent. The Minister said (at 256) that the legislative reform was "to curtail the disproportionately high number of elections for trial by judge alone that are being made in the ACT". In its amended form, s 68B prevented an election being made in relation to an "excluded offence" listed in sch 2 of the Supreme Court Act. This schedule included murder, manslaughter and most sexual offences. However the amended section maintained the requirement that a person be advised by a legal practitioner and make the election freely: s 68B(1)(b).

13. There are three reasons why s 68B does not qualify s 316 so as to preclude the making of an election by or on behalf of a person who has been found unfit to plead in relation to "excluded offences" within the meaning of s 68B.

(a) No express qualification: Section 316 is not expressly qualified by s 68B. The distinctness of the provisions is emphasised by the fact that s 68A contains the broad statement that "Criminal proceedings shall be tried by a jury, except as otherwise provided by this part" (my emphasis). That statement either has no application because a special hearing is to be taken as distinct from the criminal proceedings to which s 68A applies or it must be accepted that the statement is necessarily qualified by the existence of special hearings in relation to which a distinct regime outside the scope of "this part" applies.

(b) No qualification of s 316 when amendments made in 2011: When the election provisions were incorporated into s 428J, the purpose was to make the facility of trial by judge alone available to persons who were unfit to plead. At that point, in ordinary criminal trials there was no limit on the types of cases in which an election for trial by judge alone could be made. However the legislation did not simply pick-up and modify the provisions that would be applicable in an ordinary criminal trial but instead provided a self-contained regime for determining whether a special hearing was to be a trial by jury or by judge alone. It is self-contained in that, like ss 68A and 68B, it provides a default rule of trial by jury subject to the making of an election for trial by judge alone in particular circumstances. Section 316 makes no reference to, and does not pick up, any of the provisions in s 68B relating to elections. Similarly, the reference in s 68B to "excluded offence" is within the self-contained provisions relating to elections to be tried by judge alone. It is not a standalone provision. While, if the legislature had wished to, it might have readily amended the self-contained regime in s 316 when it narrowed the scope for elections for trial by judge alone in 2011, it did not do so. That is not obviously anomalous having regard to the very limited circumstances in which special hearings are required.

(c) Section 316(1) must be read with s 316(2): The statement that the proceedings are to be conducted "as nearly as possible as if it were an ordinary criminal proceeding" is not sufficient to incorporate the rules about elections for trial by judge alone from s 68B. That is because the subsection must be read in its context, which includes the next subsection, s 316(2) which provides a specific regime in relation to whether the trial should be trial by jury or by judge alone. Read in that context, sub-s (1) does not carry with it the generally applicable rules relating to whether the proceedings are with or without a jury.

14. Once it is accepted that the existence of the concept of "excluded offence" in s 68B does not qualify the scope of s 316(2), it is clear that the procedure contemplated by that subsection is a mandatory one. The procedure in s 316(2)(a) and (b) deals with a binary situation: either the accused is capable of making an election or not capable. The accused must be in one or other of these conditions. Because the subsections are premised upon the satisfaction of the Supreme Court as to the condition of the accused, the Court is obliged to consider the issue. It would not be a reasonable interpretation of the subsection to hold that it did not apply if the Court never reached either state of satisfaction because it failed to consider the issue. If that was the case, then the clear statutory entitlement of an accused person to make an election, either directly or via a guardian (see s 316(3)), would be denied by an oversight. The insistence on compliance with a statutory procedure such as that in s 316(2) is consistent with the approach of the High Court in Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 at [36]- [48] to the giving of instructions by a trial judge under a provision equivalent to s 316(9).

15. The second aspect of the Crown's argument relied upon the failure to have made any election prior to the date when the Court first fixes a date for the hearing. That is a separate requirement in sub-s (2)(a) and (b) in addition to satisfaction of the Court about capacity or incapacity. Therefore the failure to have given the election by the relevant date would preclude a trial by judge alone. However this fails to take proper account of the fact that the precondition to making an election is a determination by the Court of whether the accused is capable or incapable of making the election and, if incapable, the taking of steps, if no other guardian has been appointed, to have the ACT Civil and Administrative Tribunal appoint a guardian under s 316(3). The effect of this is that the Court should not fix the matter for hearing until it has determined whether the accused is capable or incapable of making the election. Although the position might be saved, in the case of a failure to reach a relevant state of satisfaction, if the Court could retrospectively determine that the accused was capable of making an election, such an interpretation fails to give appropriate weight to the present tense in s 316(2)(a)(i). The references to "is satisfied that the accused is capable" are inconsistent with a state of satisfaction reached retrospectively that the accused was capable.

16. The oversight by the parties to ask the Court to determine, either as part of the determination of fitness to plead or subsequently, the capacity of the accused to make an election for trial by judge alone has meant that the accused has been denied an entitlement available to him. A potential difficulty arises, so far as any remedy is concerned, because any election ultimately made must be "before the court first fixes a date for the hearing". That has already occurred and hence it may not be strictly possible to make an election before that date. However, in the light of the interpretation that I have given to the provisions above, it is necessary to read the reference to the Court first fixing a date for the hearing as being something that occurs after the Court reaches the state of satisfaction in sub-s (2)(a)(i) or (2)(b)(i) and, if the latter, makes any appointment under sub-s (3). As a consequence, the requirement to make an election before the Court first fixes a date for the hearing only presents a barrier to the filing of an election if the date is set after the Court has reached the state of satisfaction in sub-s (2)(a)(i) or (2)(b)(i). That state of satisfaction having not been reached in the present case, the bar to the making of the election has not arisen.

17. I note amongst the drafting obscurities relating to this section is a reference in s 316(3) to "an election under subsection (2)(a)(i)". The reference to that paragraph does not make sense. That is because s 316(3) only operates when the accused is incapable of making an election and sub-s (2)(a)(i) only operates where the accused is capable of making an election. In order to make sense of the reference would need to be a reference to the process under sub-s (2)(b) which is the provision that is applicable if the person is not capable of making an election. This appears to be an obvious drafting error or misunderstanding. In order that s 316(3) and the essential operation of sub-s (2) not be rendered ineffective, the reference to "make an election under subsection (2)(a)(i)" needs to be read as if it said "make an election for the special hearing to be a trial by a single judge without a jury". Having regard to the conclusion that I have reached, I will need to hear the parties further as to whether such an interpretation goes beyond the limits of what is permissible as an exercise of statutory interpretation.

18. The accused indicated that in the event that the Court was of the view that a determination of the capacity of the accused was required to be made prior to the time at which an election was required to be made by or on behalf of the accused, then he sought to have the application for a stay adjourned until the opportunity for an election had been given. I consider that approach to be appropriate. That is because it may be that whether or not the circumstances warrant the granting of a stay will, having regard to the reliance by the accused on his state of health as one of the grounds for a stay, be influenced by the nature of the special hearing that is to be conducted. The position is not so clear that the outcome of the application for a stay will necessarily be unaffected by any election.

19. I will therefore not at this stage determine the application for a stay and will hear the parties as to how to proceed in relation to the operation of s 316(2).

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.