CRIMINAL LAW - jurisdiction, practice and procedure - accused unfit to plead or becoming incapable during trial - disposition following non-acquittal - ancillary orders - whether bail can be granted to submit to the jurisdiction of ACAT - no apparent power.

Evidence Act 1995 (Cth), ss 184, 190

Crimes Act 1900 (ACT), ss 27, 300, 308, 310, 311, 314, 315C, 316, 317, 318, 319

Court Procedures Act 2004 (ACT), s 11

Supreme Court Act 1933 (ACT), s 68C

Legislation Act 2001 (ACT), s 133

Crimes (Sentencing) Act 2005 (ACT, ss 10, 13, 14, 16, 17, 19, 27

Bail Act 1992 (ACT), ss 5, 28, 57AA

Mental Health (Criminal Procedure) Act 1990 (NSW), s 21

Howard D and Westmore B, Crime and Mental Health Law in New South Wales (LexisNexis Butterworths: Sydney, 2005)

R v Fisher [2011] ACTSC 56

R v Dunn [2011] ACTSC 84

W v The Queen [2001] FCA 1648; (2001) 115 FCR 41

R v Stevens (2010) 107 SASR 456

R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1

R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490

R v Smith [1999] NSWCCA 126

R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Forbutt v Blake (1981) 51 FLR 465

R v County of London Quarter Sessions Appeal Committee; Ex parte Metropolitan Police Commissioner [1948] 1 KB 670

1. Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt that Dennis Fisher engaged in the conduct required for the offence charged in the first count on the indictment.

2. Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt that Dennis Fisher engaged in the conduct required for the offence charged in the second count on the indictment.

1. On 1 April 2011, I found Mr Dennis Fisher unfit to plead and unlikely to become fit within twelve months. See R v Fisher [2011] ACTSC 56.

2. As a result, I was required under s 315C of the Crimes Act 1900 (ACT) (the Crimes Act) to hold a special hearing under s 316 of that Act.

3. Before I gave any directions or fixed a date for the special hearing, I was informed that the Public Advocate of the Australian Capital Territory had been appointed guardian of Mr Fisher.

4. This is important because of s 316(2) of the Crimes Act, which requires as follows:

(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.

5. These provisions are subject to s 316(3) and (4) which are in the following terms:

(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.

6. It seems to me that the reference in s 316(3) to "subsection (2)(a)(i)" is not correct for there is no apparent power in the section for a guardian to make such an election.

7. There is also a lack of clarity about what the guardian is to do. Under s 316(2)(b)(ii), the guardian merely notifies the court of his or her opinion and then the section, of its own force, requires that the special hearing not be trial by jury. That is consistent with s 316(4), which makes a distinction between election (par (a)) and notification [of the guardian's opinion] (par (b)). On the other hand, the wording of s 316(3)(b) suggests that the guardian has power to make an election.

8. In my view, the latter is to be rejected. The guardian does not make an election, but simply notifies the court of his or her opinion.

9. It seems to me that there are good policy reasons why a guardian should not merely elect for trial by judge alone but should, as the section provides, actually express an opinion about the best interests of the accused. As I said in R v Dunn [2011] ACTSC 84 (at [10]):

It is important, however, that the record is clear for there are many reasons why an election for trial by judge alone may be made. It may be that it is cheaper or quicker to have such a trial. These are considerations an accused may take into account, but the statute requires that the guardian forms a particular opinion, namely that it is in the best interests of the accused that the special hearing be a trial by a single judge without a jury. Other matters may or may not be relevant to that opinion.

10. In this case, I was satisfied that Mr Fisher was incapable of making the election for trial by a single judge without a jury, principally because of his lack of understanding about challenging jurors and the jury (see R v Fisher (at [47]).

11. As a guardian had been appointed, it was not necessary for me to act under s 316(3). I had a copy of the Guardianship Order. It was tendered in the investigation as to Mr Fisher's fitness to plead. It gave the Public Advocate, as guardian, "powers limited to legal issues." In my view, that is sufficient to permit the guardian to act in accordance with s 316(2)(b)(ii).

12. Initially, the guardian sought to hand up an election as if by Mr Fisher himself. That is to say, it was in the form of Approved Form 4.11 (AF2006-504). It does not seem to me that this is what is required. I rejected the document but accepted a letter from the guardian that notified me of the opinion set out in s 316(2)(b)(ii). The Joint Rules Advisory Committee (s 11 of the Court Procedures Act 2004 (ACT)) has now recommended the making of an approved form for this purpose.

13. As I noted in my earlier decision, R v Fisher (at [6]), no indictment had yet been filed.

14. In W v The Queen [2001] FCA 1648; (2001) 115 FCR 41 (at 65; [73]), the Federal Court of Australia (which was then the appeal court from this court) held that an indictment must be filed before criminal proceedings are on foot.

15. That decision, however, depended, in part, on the definition of "criminal proceedings" in the Dictionary of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).

16. Although s 310 of the Crimes Act makes Div 13.2 (Unfitness to Plead), in which division, ss 311 to 319A occur, apply to "criminal proceedings", that term is not defined in the Crimes Act, nor in Pt 1 of the Dictionary to the Legislation Act 2001 (ACT) (the Legislation Act). I cannot say that the term is used in the Crimes Act with the same precise meaning as in the Supreme Court Act.

17. Having regard to s 314 of the Crimes Act, whereby the Magistrates Court can reserve a question for consideration by the Supreme Court, it is not likely that an indictment would ordinarily have been filed before the court was then legislatively required to reserve the question for investigation. Accordingly, my present view is that it was not necessary for an indictment to be filed before I considered Mr Fisher's fitness to plead, which I had legislative power to do under the Crimes Act.

18. Nevertheless, it seems to me that ordinarily it would be prudent for an indictment to be filed prior to the investigation of an accused's fitness to plead. This would put beyond question the issue of jurisdiction but would also deal with the matter that the fitness should be dealt with by reference to the actual charge: R v Fisher (at [29]15); R v Stevens (2010) 107 SASR 456 (at 468; [57]).

19. After I had delivered my earlier decision and been notified of the guardian's opinion, an indictment dated 1 April 2011 was then presented, containing two counts, namely:

FIRST COUNT: ... THAT on the 10th day of November 2010 at Canberra in the Australian Capital Territory DENNIS FISHER did dishonestly and without consent, drive a motor vehicle, namely an orange coloured Toyota Corona bearing NSW registration YFK 694, belonging to Renny Herbert Field.

SECOND COUNT: AND FURTHER THAT on the 11th day of November 2010 at Canberra aforesaid DENNIS FISHER did dishonestly and without consent, ride in a motor vehicle, namely an orange coloured Toyota Corona bearing NSW registration YFK 694, belonging to Renny Herbert Field.

20. Naturally, Mr Fisher was not arraigned on the indictment, for my finding as to his fitness to plead precluded that step from being taken. It appears, however, that the charges in the indictment should be formally read out (see R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1 (at 4)), though there does not seem to be the need for a formal arraignment in this Territory as there is no equivalent to s 21(3)(a) of the Mental Health (Criminal Procedure) Act 1990 (NSW) which deems the accused to have pleaded not guilty at the special hearing.

21. On presentation of the indictment, I set a hearing date for the special hearing and it was agreed by counsel that it should commence immediately.

22. Section 316(1) of the Crimes Act, provides that a special hearing shall be conducted as nearly as possible as if it were an ordinary criminal trial.

23. In this regard, I accept that the approach taken to trials by judge alone under s 68C of the Supreme Court Act is the proper approach to take to special hearings where it is to be conducted by a single judge without a jury.

24. Of course, all that has to be determined, under s 317 of the Crimes Act, is whether I am satisfied "beyond reasonable doubt that the accused engaged in the conduct required for the offence charged".

25. Applying this, I then approach the task in the following way.

26. Sitting as a judge alone, I may make any finding that could have been made by a jury as to whether Mr Fisher engaged in the relevant conduct and any such finding has the same effect as the verdict of a jury. I am required to include in my judgment the principles of law that I apply and the findings of fact upon which I rely. Where a warning would have been required to be given to a jury were the proceedings a trial before a judge and jury, I am to take the warning into account when considering my verdict.

27. I give myself the general directions that would ordinarily be given to a jury before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts, and to draw inferences from them, as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving that Mr Fisher engaged in the relevant conduct lies wholly on the prosecution and no burden at all lies upon him. If Mr Fisher makes or points to an explanation which is consistent with innocence, he does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant; otherwise the prosecution will not have proved its case. Mr Fisher is presumed not to have engaged in the relevant conduct until at the conclusion of the hearing the evidence establishes that fact. Both the onus and the standard of proof lie upon the prosecution and the prosecution must prove each and every element of the relevant conduct and whether Mr Fisher engaged in it beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

28. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a finding that Mr Fisher engaged in the relevant conduct can be made. If I am satisfied that there may be an explanation consistent with Mr Fisher not having engaged in the relevant conduct in respect of the charge in the indictment, or I am unsure where the truth lies, then, in those circumstances, I must find that Mr Fisher is not guilty of the offence charged to the level of satisfaction required by the law and must acquit him in respect of that charge.

29. The prosecution sought to prove its case by the tender of certain documents. Ms Boss, who appeared for Mr Fisher, consented to the tender of those documents. I was satisfied that, for that consent to be accepted, the provisions of s 184 or, alternatively, s 190 of the Evidence Act 1995 (Cth) had been met, having regard to my findings on the issues particularly of s 311(1)(c) and (e) of the Crimes Act. She expressly affirmed that she had advised Mr Fisher as required and that he understood the consequences of the consent to the tender of the documents and, having regard to my findings as to his fitness to plead, I am satisfied that he understood the consequences of making the admission. This is the procedure approved in R v Zvonaric (at 5-6; [11] to [19]), though on slightly different legislation. My reliance on the advice of counsel is appropriate: R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 (at 494; [13]).

30. As noted, Mr Fisher was represented by Ms Boss of counsel. Such representation is mandated, unless the court otherwise orders, under s 316(6) of the Crimes Act. The finding of unfitness does not mean that there can be no relevant interaction between the accused person and his or her legal representative.

31. Such a practitioner can explain procedures to the accused: R v Zvonaric (at 6; [15]). Indeed, in R v Smith [1999] NSWCCA 126, James J (with whom Barr J and Carruthers JA agreed) said (at [47] to [48], [54]):

1. ... Accordingly, it must follow, in my opinion, that at a special hearing the accused's legal representative has a greater power to make decisions, without receiving instructions from his client, than would be the case in an ordinary trial. In many cases, it will be impossible for the accused's legal representative to obtain instructions. However, I have reached the conclusion that I should not accept the submissions made by counsel for the appellant that at a special hearing the power to make decisions on behalf of the accused is exclusively vested in the accused's legal representative, to the exclusion of the accused himself, with the consequence that a judge at a special hearing makes an error of law, if he permits the accused to take a step which is opposed by the accused's legal representative.
2. In my opinion, even in the case of a person who has been found unfit to be tried, a court should be cautious in finding a legislative intent that an accused person has been deprived of fundamental rights which he would have had in an ordinary trial, in the absence of clear legislative provision to that effect. I do not consider that such a clear legislative provision can be discerned in the Act.

1. ... If an accused person at a special hearing is able to communicate and communicates that he wishes to give evidence (or make a statement), then I do not consider that the judge at the special hearing makes an error of law, if he permits the accused person to give evidence (or make a statement), even though counsel for the accused person is opposed to such a course.

32. The obligation on defence counsel is significant and complex. Howard D and Westmore B, in Crime and Mental Health Law in New South Wales (LexisNexis Butterworths: Sydney, 2005), refer to the following comments of "one experienced commentator" (at 132):

... it falls to defence Counsel to walk that very delicate and difficult tightrope of appearing for their client, acting as their advocate and also being an officer of the court ensuring that injustice does not occur as a result of their client's incapacity.

33. As a result, I admitted the following into evidence:

(a) a Statement of Mr Renny Herbert Field made on 7 January 2009;

(b) a Statement of Mr Bill Aldcroft made on 10 November 2009;

(c) a Statement of Constable Matthew McVicar made 22 January 2010;

(d) a photograph of the vehicle in which it was alleged Mr Fisher was driving;

(e) a record from Rego ACT, Road Transport Information Management, of the licence records in relation to Mr Fisher.

34. From these documents, I find the following facts.

35. Mr Fisher, who is now 22 years old, does not have and has not held a licence to drive a motor vehicle.

36. On 10 November 2009, Mr Fisher's case worker arrived at Jerilderie Court, Reid ACT, where Mr Fisher lives. He saw Mr Fisher leaving a motor vehicle described as an older model Toyota Corona registration number YFK 694, orange in colour. The case worker spoke to Mr Fisher. He denied to his case worker that he was driving the vehicle.

37. The case worker telephoned police and was informed that the car had been stolen. Later that morning, while Mr Fisher's case worker was waiting for police to arrive, he saw Mr Fisher driving the motor vehicle out of the car park at Jerilderie Court. He called police again and told them the direction in which the car had gone.

38. At about 1.15 pm that day, Constable McVicar, of the AFP, was driving to Jerilderie Court when he received a communication that informed him that Mr Fisher was driving away from Jerilderie Court.

39. The next day, 11 November 2009, Constable McVicar was on mobile patrol and noticed the Corona motor vehicle in Coranderrk Street. He followed the vehicle, which accelerated and travelled at speed through several give way signs and then turned into Gooreen Street, Reid. Constable McVicar followed and found the car stopped in Gooreen Street but did not see any of the four passengers he had earlier seen.

40. He later saw Mr Fisher and approached him, arrested him and took him back to the vehicle, where another police officer had arrested one of the other passengers in the vehicle. A caged police vehicle soon arrived and the two arrested persons were taken to the City Watch-house.

41. The owner of the Corona vehicle, registration number YFK 694, had left the vehicle at about 10.15 pm on 9 November 2009 in the off street parking area between London Circuit and Vernon Circle, opposite the Sydney Building in Civic. He locked the car and took the keys with him.

42. When he returned shortly before midnight, the car was not at the location where he had left it. He assumed it had been stolen and walked over to City Police Station and reported it as stolen.

43. He was later contacted by police on 11 November 2009 to advise that his car had been located. He went to Gooreen Street and inspected it, noting that nothing seemed to have been taken from the car.

(i) driving a motor vehicle, an orange coloured Toyota Corona;

45. The element of dishonesty is, it seems to me, part of the mental element of the charge which I do not need to consider. See R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552 (at 90), though that case was concerned with legislation that was worded slightly differently.

46. The conduct involved in the second charge was:

(i) riding in a motor vehicle, an orange coloured Toyota Corona;

47. On the facts as I have found them, I am satisfied beyond reasonable doubt that Dennis Fisher engaged in the conduct required for each offence with which he has been charged in the indictment.

48. The offences specified in the indictment were both offences contrary to s 318(2) of the Criminal Code 2002 (ACT). They carry a maximum penalty of 500 penalty units (which, at the time, amounted to a fine of $55,000: s 133(2) of the Legislation Act) or imprisonment for five years or both.

49. In order to decide how to proceed, I need to determine whether the offences are serious offences: if they are s 319 of the Crimes Act applies; if they are not, s 318 applies.

50. "Serious offence" is defined in s 300 of the Crimes Act to mean:

(a) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or

(b) an offence against section 27(3) or (4).

1"> 51. Section 27 is not relevant here because that is not the section under which either of the charges in the indictment is laid.

52. In my view, neither offence involves actual or threatened violence. They are purely offences of dishonesty. Accordingly, they are non-serious offences. That means that s 318 applies and where it applies, s 318(2) provides:

... the Supreme Court may make the orders that it considers appropriate, including the following:

(a) That the accused be detained in custody until the ACAT orders otherwise;

(b) That the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order.

53. In determining whether Mr Fisher should be detained in custody, I am required to consider the criteria set out in s 308 of the Crimes Act, as follows:

(a) the nature and extent of the accused's mental impairment, including the effect it is likely to have on the person's behaviour in the future;

(b) whether or not, if released -

• (i) the accused's health and safety is likely to be substantially impaired; or
• (ii) the accused is likely to be a danger to the community;

(c) the nature and circumstances of the offence with which the accused is charged;

(d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;

(e) any recommendation made by the ACAT about how the accused should be dealt with.

54. I have sought the advice of ACAT (that is the ACT Civil and Administrative Tribunal) and will then hear the submissions of the parties as to the appropriate order to be made.

55. In this regard, I am not at all sure what is intended by s 318(2), where it provides that the court "may make the orders that it considers appropriate." It cannot include any order under the Crimes (Sentencing) Act 2005 (ACT), for they all depend upon an offender being "convicted or found guilty of an offence". See, for example, in relation to a good behaviour order, s 13(1) of that Act.

56. There are similar pre-conditions expressed in ss 10(1), 14(1), 16(1), 17(1), 19(1) and 27(1)(a) of that Act before the orders provided for in it can be made.

57. Similarly, the imposition of a common law bond depends on conviction. The common law bond was defined by Jacobs J in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 (at 319) as follows:

where a convicted person is bound over to be of good behaviour for a certain period and to come up for sentence if called upon during that period in the event of a breach of the condition for good behaviour.

58. A power that judges of the Supreme Court have is to bind over a person to keep the peace. See Forbutt v Blake (1981) 51 FLR 465 (at 474) per Connor ACJ. That power, however, is directed to persons who are suspected of a breach of the peace, or who are thought likely to cause a breach of the peace. See R v County of London Quarter Sessions Appeal Committee; Ex parte Metropolitan Police Commissioner [1948] 1 KB 670 (at 673). This hardly applies here.

59. It does not seem to me that a provision that permits a court to make "the orders it considers appropriate" is a grant of unlimited power but must refer to an order that is otherwise within the power of the court to make.

60. In this case, no other orders are specified in the Crimes Act than those set out in s 318. The Explanatory Statement for the Bill, the Crimes (Amendment) Bill 1994 (ACT) which inserted the provision, then numbered s 428L, suggests that the section should be given a wide interpretation, for it states in this section (at 6):

New section 428L gives the Court great flexibility in deciding what is the most appropriate disposition option if a person has not committed a serious offence.

61. As I have not heard full argument, I simply raise these issues for further consideration.

62. One matter that is of immediate concern, however, and which has not been addressed by the legislature, is the question of the ancillary powers available should I require Mr Fisher to submit to the jurisdiction of ACAT. This may well be a sensible course of action given that Mr Fisher may benefit from a Community Care Order.

63. The question arises as to whether I can grant Mr Fisher bail for that purpose or otherwise make ancillary orders to ensure his attendance and that he does not commit further offences in the meantime. It seems to me that s 5 of the Bail Act 1992 (ACT) (the Bail Act) prevents me from doing this. The section provides:

An accused person may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged.

"Accused person" is defined in the dictionary to the Bail Act in the following way:

(a) a person charged with, convicted of, or found guilty of, an offence; and

(b) a person mentioned in section 8(1)(c), (d) or (e); and

(c) a person whose conviction for an offence is stayed; and

(d) a person subject to an order under the Crimes (Sentencing) Act 2005, section 17 (Non-conviction orders - general); and

(e) a person in relation to whom an appeal relating to an offence is pending; and

(f) a person in relation to whom a new trial has been ordered to be held for an offence.

64. The only paragraph that could apply here is (a) where, of course, Mr Fisher was charged with the two offences in the indictment. That, however, must be restricted to charges which are pending and have not been resolved. If that were not so, it would not be necessary to include "convicted ... or found guilty" for such persons have always been charged with an offence. It would also be far too wide a definition, for anyone who has ever been charged would be encompassed in the meaning and this cannot have been intended. It would also include all those acquitted, for they have also been charged. I consider it can only mean those charged where the charges are pending and have not been finalised. The position where they have been finalised is dealt with by the use of the terms "convicted of, or found guilty of, an offence".

65. Thus, I do not consider that, in the case of a person found unfit to plead, once a finding of non-acquittal (see ss 318 and 319 of the Crimes Act), following a special hearing, has been made, the person the subject of that finding is an accused person within the meaning of s 5(1) of the Bail Act. I cannot, therefore, grant such a person bail.

66. In any event, there will be no further court appearances and so the undertaking required under s 28 of the Bail Act cannot be signed before the person is released.

67. There appears also not even to be an inherent power to grant bail, even were that to be otherwise available in these circumstances, for bail is now an entirely statutory power, given that s 57AA of the Bail Act has now abolished any inherent power of this Court to grant bail.

68. In my view, I cannot grant Mr Fisher bail if I release him under s 318(2)(b) of the Crimes Act. That seems to me to be a gap in the legislation and one which the Legislature may wish to address.

69. I note that Mr Fisher has already spent time in custody pending the determination of these charges. He has been in custody for about nine months. How that is to be taken into account is also not readily apparent. I shall hear counsel on these issues.

70. I will make formal findings under s 317 of the Crimes Act and beyond reasonable doubt that Mr Fisher engaged in the conduct set out in each of the offences charged in the indictment.

71. I shall hear counsel as to the further disposition of these proceedings.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the accused: Craig Lynch & Associates