If HW is not fit to plead, what order can be made in the Local Court; is the appropriate order in the Local Court one for discharge or for permanent stay of proceedings, or some other order?
- As discussed above I have found that the Local Court has jurisdiction to determine whether HW is fit to plead. The issue is then what order may or should be made. In order to determine this issue I have conducted a review of the authorities. There is significant authority for the position that if a person is not fit to plead the person should be discharged - Mantell, Eastman and Ngatayi (refer below). There is also some suggestion that the order should be an order for permanent stay of proceedings as discussed below. The defence submit that the order should be an order for permanent stay, and provide detailed written submissions to this effect.
- In Mantell Adams J states (at [28]-[29]):
"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.
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".
- I note that Pioch v Lauder involved a mute and deaf Aboriginal defendant who did not suffer from a mental condition, was deemed not fit to plead, and the magistrate, having reached the conclusion he reached as to the defendant's capacity, should simply go no further and desist from hearing the charge.
- In Mailes Hunt CJ at CL stated (at [149]-[154]):
"In Ngatayi v The Queen (1980) 147 CLR 1, a case involving s 631 of the Criminal Code (WA), it was confirmed that it was not necessary for the accused to understand the law which governs his or her case, as distinct from having the capacity to understand the nature of the proceedings and to make a proper defence.
That was a case where the accused, by reason of his Aboriginality, was unable to understand that, under the law of the State, gradations of homicide existed and that he may have had a defence to wilful murder based upon intoxication.
The provisions applicable were different from those contained in the Procedure Act, insofar as the requirement for a fitness hearing, under the Code arises "if, when the accused person is called upon to plead … it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial. As Gibbs, Mason and Wilson JJ observed, the Code has been set in a context in which the incapacity has no necessary reference to insanity, or to incapacity, arising from a physical or mental condition.
Notwithstanding the differences in the relevant legislation, the following extract from their judgment has some relevance for the present appeal, if it be the case that the New South Wales legislation does apply to the intellectually disabled:
"Once a real question as to incapacity is raised, the judge must follow the procedure laid down in the section. If counsel raises an issue of incapacity he should indicate the nature of the facts which in his submission will support the view that the accused is incapable of understanding the proceedings so as to be able to make a proper defence. The judge should leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make a proper defence." (at p 8)
Of interest concerning the dispositions available in relation to an accused who is found unfit, is the following passage in their judgment (at 7-8):
"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 case no doubt he should be discharged. In fact in Reg v Willie (1885) 7 QLJ (NC) 108, Cooper J ordered the discharge of four aboriginals when no interpreter could be found competent to communicate the charge to them. The report does not however disclose the authority, statutory or otherwise, for taking this course."
Whether authority for that course, which was said to be available in R v Willie (1885) 7 QLJ (NC) 108, survived the Criminal Lunatics Act 1800, with its mandatory judicial order for detention in strict custody, is dubious: R v Judge Martin ex parte Attorney General (1973) VR 339. The question of whether a person, who would never be fit to plead, could be detained indefinitely, was considered, although not decided in Jabanardi (1983) 50 ALR 147, where the repugnancy of such a consequence was mentioned".
- As can be seen from the forgoing discussion of the authorities, many decisions are based on the orders which should be made, and the process which should be adopted, given applicable statutory provisions. It is clear that a trial, including a Local Court summary hearing, cannot proceed where an accused is not fit to plead. However it is by no means clear what order should be made, upon a finding that an accused is unfit, in the Local Court, given the absence of applicable statutory provisions. The authorities set out above would appear to indicate that in the absence of statutory provisions the accused should be discharged. This would not however exclude the possibility that an order for a permanent stay of proceedings should be made in a case where the evidence indicates that an accused will in all probability remain not fit to plead.
- A review of the authorities indicates that the order may be one for discharge. But, on what basis would a Local Court make an order for discharge - there appears to be no jurisdiction to make an order that an accused be discharged because he or she unfit. The Local Court is a Court of statute. The Local Court Act 2007 provides, in relation to the Courts criminal jurisdiction, at s9(c), that the Court has "a criminal jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to criminal proceedings." The Criminal Procedure Act 1986 provides for summary hearings in criminal matters, and section 202 provides for determination by the court of summary proceedings. Section 202 (2) provides for determination of the matter by conviction, by making an order as to the accused person, or by dismissing the matter. There is no provision for an order for discharge. I note that pursuant to s66 of the Criminal Procedure Act 1986 a magistrate may discharge an accused in committal proceedings. This provision is inapplicable to the present matter. The Local Court may make an order for a permanent stay of proceedings. This is implicit in the decision of the Supreme Court in Mantell, and is specifically stated by the Court of Appeal in DPP v Shirvanian (1998) 44 NSWLR 129 per Murphy P with whom Beazley JA agreed (Powell JA dissenting):
In my view Jago v. The District Court (NSW) resolves the question in Australian law whether a court has the power in an appropriate case to stay criminal proceedings permanently for oppression amounting to abuse of process. The narrowness of the criteria upon which the power might properly be exercised was expressed in different ways by the various justices. However each (with the exception of Brennan J) asserted the ultimate proposition: see (at 33-34), per Mason CJ; (at 58), per Deane J; (at 71), per Toohey J; (at 75), per Gaudron J. Jago involved an inferior statutory court, the District Court of New South Wales Unless something can be found in the relevant legislation to deprive a magistrate of the Local Court of similar power then there is no basis in point of principle for distinguishing between the District Court and the Local Court. This was the view taken by the Queensland Court of Criminal Appeal in Williamson v Trainor [1992] 2 Qd R 572 in relation to a Magistrates Court in that State. Since the passing of the Local Courts Act 1982 and the enactment in 1992 of Pt 9 of the Constitution Act 1902 (later doubly entrenched), magistrates of the Local Court have become constitutionally tenured judicial officers. They have power to impose substantial fines and terms of imprisonment. They are, like all judicial officers, charged with the duty to administer justice according to law.
- Since the principle which gives rise to the power in a proper case to grant a stay is that "the public interest in holding a trial does not warrant the holding of an unfair trial" (Jago (at 31), per Mason CJ), it follows that such power resides in a magistrate of the Local Court hearing a (summary) trial unless excluded by clear words. The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of parliament unless clearly excluded in a particular context. In my view, the same can be said about the power to prevent abuse of process as an incident of the duty to ensure a fair trial. And I can see no principled ground for excluding a power to grant a stay to prevent or nullify other categories of abuse of process.
- In Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 at 552, a Full Court of the Federal Court of Australia comprising Morling J, Beaumont J and Gummow J said:
"It is clear that, in an appropriate case, the Local Court has the power to stay civil or criminal proceedings before it which are an abuse of process (see Jago (at 25-26), per Mason CJ; Spautz (at 518-521); Newby v Moodie 130E (1988) 83 ALR 523 at 526). The power of a court to stay a proceeding as an abuse of its process is an essential attribute of the exercise of the jurisdiction with which it is invested: see Spautz (at 520-521)." See also Coleman v Gray (1994) 55 FCR 412 at 437.
- It will be plain from the foregoing that I respectfully agree.
- It is noted that in the decision of the High Court in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Mason CJ stated (at 29):
Moreover, objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v. Cross 143 (1978) 141 CLR 54; Reg. v. Sang (1980) AC 402. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process.
- A decision to make an order for a permanent stay involves a test of fairness in which the interests of the community that those charged with criminal offences are brought to trial are to be considered, and the interests of the accused cannot be considered in isolation. Chief Justice Mason in Jago stated (at 33):
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at pp 102, 106; Sang, at p 437; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264.
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton, at p 111, per Wilson J.
- In the Court of Criminal Appeal decision in TS v R [2014] NSWCCA 174, Bellew J, with whom Leemings JA and Adams J agreed, provided the following summary of relevant principles (at [61]-[64]):
In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ.
In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 in the following terms (at 720):
".... whether, in all of the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process".
The categories of circumstance which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases; Barton per Wilson J at 475; Jago per Mason CJ at 582.
The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].
- In this context I note the discussion in Mantell that there was nothing which the Magistrate in that case could do to cure the unfairness of proceeding with the summary trial where the accused was unfit.
- I note the authorities referred to above indicate that for a trial to proceed where an accused is unfit would constitute a fundamental failure in the trial process. I must, on this basis, conclude that an order for a permanent stay may be an appropriate order to be made. I note that the decision whether to grant a permanent stay involves a discretionary decision by the judicial officer (refer Gaudron J in Jago at [13]).
- In the exercise of the discretion whether to order a permanent stay, I note the importance of not considering the accused's interests in isolation, and that consideration must also be given to the interests of the community in the criminal process proceeding. Where an accused's criminal offending places other members of the community at risk, because of its violent or sexual nature, then the community interest in a prosecution proceeding is significant.
- If HW was before the District Court because an election had been made for the Table 1 matters with which he is charged, an order for a permanent stay would not be the outcome on a finding that he was unfit. Instead HW would be subject to the provisions of the MHFPA which apply in the District Court. Those provisions provide for referral to the Mental Health Review Tribunal (MHRT) for assessment of whether the person is likely to become fit within the next 12 months, review by the MHRT as to whether the person has become fit, and where found unfit for trial, the Court conducts a special hearing. If not acquitted at special hearing, the defendant can be found Not Guilty Mental Illness, or found unfit and not acquitted, and the likely result is the defendant will be detained, and may be referred to MHRT as a forensic patient.
- For the result in the Local Court to be an order for a permanent stay would appear to be in conflict with the process in the District and Supreme Courts of monitoring the accused's fitness for a period so that the trial may be held if the person becomes fit, and for orders that an unfit defendant be detained (refer provisions of MHFPA and s 27 of that Act, refer also the discussion of Justice Hulme in Mailes v DPP And 1 Or [2006] NSWSC 267).
- However, an accused who is not fit to plead who is before the Local Court faces a further unfairness issue - there is no provision for acquittal by a process such as the special hearing which applies in the District and Supreme Courts under the statutory provisions of the MHFPA.
- The only process which does not require a finding of guilt at law, available in the Local Court, is an order under section 32 of the MHFPA. Perhaps such an order does cure the unfairness as no finding of criminal guilt is made. However it is not an acquittal, and section 32 also provides for an accused to be called up for breach of an order under that provision and further dealt with at that time, according to law. However, it would follow that if an accused was called up for breach of a section 32 order, at the time of dealing with the matter according to law the Local Court would be required to again be satisfied whether the accused was fit to plead.
- The NSW Law Reform Commission (NSWLRC) in its report People with Cognitive and Mental Health Impairments in the Criminal Justice System. Criminal Responsibility and Consequences, Report No. 138 (2008) noted the effect of the common law and considered the options of adjournment and stay of proceedings. An adjournment would be appropriate where the unfitness was temporary, and bail conditions could ensure treatment in the interim. The NSWLRC was of the view that a stay order was not appropriate and that the order to be made was one of discharge.
- The legal authorities which deal with the consequences of a finding of unfitness in the absence of a statutory scheme are therefore of some guidance to the Local Court, and on review, it appears that the order may be one for discharge. However, as discussed above, the Local Court appears to have no power to make such an order for discharge of an accused on the basis of a finding that the accused is not fit to plead.
- As discussed above the appropriate order may be for a stay. The decision of the Supreme Court in Mantell involved an appeal against a magistrate's refusal of a section 32 application and refusal to order a stay of proceedings on the grounds that the defendant was unfit. The Supreme Court found that the Local Court had erred in its approach to the fitness issue. Given what was argued on appeal, Adams J did observe, on remitting the matter for redetermination by the Local Court, that if the Local Court did not deal with the matter under section 32 it would be required to consider any application for a stay.
- The various authorities on stay of proceedings indicate that central considerations include abuse of process, including issues of the fairness of the trial. As was stated in the Court of Criminal Appeal decision in DPP v Shirvanian (1998) 44 NSWLR 129, per Murphy J with, whom Beasely JA agreed (at 190):
Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited" [1995] Crimple 864. Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway (at 41, 43)), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) (1989) 168 CLR 23), or are being conducted for a purpose which in the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown C (1989) 17 NSWLR 472 at 478-479; Ridgeway (at 75).
- It has been submitted in the current matter that the appropriate order once a finding that the accused is not fit is made, in an order for a permanent stay. It was conceded by defence legal representative that an order pursuant to s32 of the MHFPA could be made but it is submitted that the court would need to be satisfied that this would address the unfairness issues faced by the accused due to his status of not being fit for trial. It was submitted that the proper order, given unfairness, is an order for permanent stay of the proceedings.
- An order for a permanent stay may be appropriate where the abuse of process or unfairness is not temporary, or cannot be cured. However it is a very significant order because of the permanence. This is a relevant consideration where the Local Court is being asked to order a permanent stay of proceedings for offences which include offences of sexual violence, and the ground for the application for a stay is that the accused is not fit to plead. No other unfairness, such as delay, or other abuse of process is asserted. In deciding whether to exercise the judicial discretion to order a permanent stay the Local Court should consider the authorities set out above, as to the interests to consider, and should also properly consider whether it would be appropriate to make another order which is available to the Court, that of diversion under section 32 of the MHFPA.