"It appears to me, on the whole of the material before me, that there is a real and substantial question to be considered, in relation to the accused's fitness to be tried. And that being so, I think that I am under a duty to have that matter determined by a jury before I allow the trial to proceed. I think that the case of Beynon , is of importance on that aspect of the matter."
147 At p 48, his Honour said, relevantly for present purposes:
"There is one further thing that I think I should add … The cases to my mind show clearly that the word "insane" in s 426 does not mean "insane" in the colloquial sense. It means 'of impaired mentality to such a degree as to be unfit to be tried'. Whether an accused man is insane in that sense is, of course, a very different question from the question whether he is insane in the colloquial sense. A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried when he is far from being insane in the colloquial sense. Dixon J, as he then was, mentioned in Sinclair v R , that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion. And the question I consider, 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."
148 These standards, his Honour, defined in terms which have been widely adopted as follows:
"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 inquiry 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 the 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 and 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 to his counsel, if any." (at p 48)
149 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.
150 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.
151 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.
152 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)
153 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."
154 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.
155 Kesavarajah v The Queen (1994) 181 CLR 230 was a case involving s 393 Crimes Act 1958 (Vic) and S 20B(3) of the Crimes Act 1914 (Cth). Mason CJ, Toohey and Gaudron JJ there observed, at 245:
"…it cannot be doubted that, in the context of s 393,
'[o]nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section. ( Ngatayi ) at p.9)
Sometimes the test has been stated in terms of whether there is a reason to doubt the accused's fitness to stand trial. However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find the accused was not fit to be tried." (references omitted)
156 Relevantly for the jurisdictional question, their Honours said, at 244:
"In conformity with the opening words of s. 393, which are based on the language of s. 2 of the Criminal Lunatics Act (1800) that question is to be determined by a jury specifically empanelled for that purpose.
… it has long been recognised that, in a context such as s 393, the word 'insane' does not mean 'insane in the colloquial sense'. or 'insane within the M'Naughten Rules' . In England, the courts have always applied Alderson B's interpretation in R v Pritchard of s 2 of the Criminal Lunatics Act, namely, that:
'the question is, whether the prisoner has sufficient understanding to comprehend the nature of his trial, so as to make a proper defence to the charge'.
In the context of s 393, the word signifies inability, by reason of some physical or mental condition , to follow proceedings of the trial and to make a defence in those proceedings." (references omitted)
157 In the Northern Territory, the position of a deaf mute Aboriginal youth who was unable to communicate, except by using his hands to ask for simple needs, who did not know of what he stood charged, and who was unable to communicate with his lawyers, arose for consideration, in the case of Roland Ebatarinja, at the committal stage. The relevant legislation was again in very different terms from that in New South Wales, S 357(1) of the Criminal Code being in similar terms to the Code provision considered in Ngatayil.
158 Mildren J, held that, as the accused was not required to plead at committal, there was no bar to those proceedings continuing, the question of fitness properly being reserved until the time for him to plead was reached (1997) 92 A Crim R 270.
159 An appeal from this decision was dismissed by the Court of Appeal of the Northern Territory. However, an appeal to the High Court (Ebatarinja v Deland & Ors (1998) 157 ALR 385) was allowed, and an order prohibiting the further hearing of the committal was made. This was upon the basis that any committal for trial would occur in circumstances where the evidence was not taken "in the presence or hearing of the defendant", and where the defendant could not be given the right to give evidence or to say something in answer to the charge.
160 It was held by the Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) that the Magistrate would have no authority to commit the accused for trial, in those circumstances, since:
"(24) When s 106 (of the Justices Act) directs the justice to take preliminary examination 'in the presence or hearing of the defendant', it lays down a condition precedent to the authority of the justice to commit for trial. The words 'presence or hearing of the defendant' have more than a formal significance. It is hardly to be supposed that the conditions of the section can be complied with by taking the preliminary examination in the presence of defendant who is in a coma.
(25) Whether the examination is conducted in the physical presence or within the actual hearing of the defendant, s 106 will not be complied with unless the defendant is able to understand what has been put against him or her by the 'persons who know the facts and circumstances of the case'. The necessity for the defendant to understand what is put against him or her is emphasised by the words which s 110 directs the justice to say to the defendant:
'Having heard the evidence for the prosecution, do you wish to be sworn and give evidence … or do you desire to say anything in answer to the charge [?]'
These words would be meaningless ritual unless the defendant had not only 'heard' the evidence for the prosecution but was able to comprehend what was being put against him or her."
161 These observations have potential relevance for committal proceedings generally, including those conducted in New South Wales, since the Justices Act 1902 similarly makes provision for a defendant to give evidence and to examine and cross examine witnesses (s36), requires evidence for the prosecution to be "taken in the presence of" the defendant (S41 (1B)(a)), and requires the Justice to give the defendant the opportunity of saying anything in answer to the charge before making an order for committal. (S41 (4)). No provision or allowance is made in respect of defendants whose fitness to plead or to be tried is in question.
162 The Court indicated in Ebatarinja that there was no reason why the Crown should not move to lift the stay of an ex officio indictment which had been filed in the Supreme Court, so as to allow the question of fitness to heard in that Court, there being no authority residing in a Magistrate to deal with the question. That was the course subsequently taken.
163 In R v Miller (No 2) (2000) SASC 152, Martin J held that an accused, who was suffering from a similar intellectual disability to that of the present appellant, as well as possible frontal lobe damage, was "mentally unfit to stand trial," upon the basis that he was unable to understand the charge. This decision, however, as outlined previously, was made in the context of the definition provided by S 269H of the Criminal Law Consolidation Act 1935 as follows:
"269H. A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is:
a) unable to understand or to respond rationally to the charge or the allegations on which the charge is based; or
b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
164 In Eastman v The Queen (2000) 74 ALJR 915 the issue arose in the context of s 428E Crimes Act 1928 (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, ie where the matter had not been raised at trial.
165 Although in the minority, in relation to whether or not the Full Court of the Federal Court should have inquired into the appellant's fitness, the statement of principle contained in the judgment of Gaudron J has considerable relevance for the present case, it being a statement not questioned in any of the other judgments.
166 Her Honour observed (at pp 49-51):
"(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 Kasavarajah v R , 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." (References omitted).