R v Peterson

The issue 6When the matter was called for special hearing, the learned Senior Crown Prosecutor raised a question going to the Court's power to conduct the special hearing after 26 July 2014, the anniversary of Justice Bellew's finding and orders under s 14 of the Act. It was said the expression "during the period of 12 months after the finding of unfitness" in s 19 of the Act were words creating a limitation period during which the special hearing must be completed.

The submissions 7The Crown argument was predicated upon the Tribunal's statutory duty to determine whether on the balance of probabilities, the accused, during the period of 12 months after the finding of unfitness had become fit to be tried for the offence. Different statutory consequences depend upon that finding. If the determination is that the accused is likely to "become fit to be tried during the period of 12 months after the finding of unfitness" the Court's power is limited and conditioned by the provisions of ss 17, 29 and 30. On the other hand, the power to hold a special hearing conferred by s 19 is conditioned upon the Tribunal's determination "under s 16(3), 45(3) or 47(5)" that the person will not become fit to be tried "during the period of 12 months after the finding of unfitness". In that event the duty of the Court "was to conduct the special hearing as soon as practicable, unless the Director of Public Prosecutions advises that no further proceedings will be taken". Whether s 16 or s 45 or s 47 is invoked, the Tribunal's function is limited to a consideration of the accused's fitness "during the period of 12 months after the finding of unfitness", and that period is a limitation upon the Court's power to conduct the special hearing. Once the period expired, so too did the Court's power. If the question of the accused's unfitness continued to arise, or arose again, after the expiration of the 12 month period, and s 7 of the Act contemplates the possibility of the question arising on more than one occasion, then the process would need to start again. Obviously this would involve a further inquiry and a finding of fitness or unfitness, and if the latter a further referral to the Tribunal under s 16, and so on. 8No evidence was led on the application suggesting that the accused had become fit, or was likely to. 9Mr Smith of Counsel for the accused argued that once the condition upon which s 19 was predicated was satisfied, the Court not only had the power, but had the duty to conduct a special hearing as soon as practicable, whether or not practicability permitted that to occur during the 12 months after the finding of unfitness.

Decision 10I have decided that the Crown's argument should be rejected. In my judgment the words "during the period of 12 months after the finding of unfitness", or their like, where they appear in the provisions of Part 2 of the Act are not words of limiting the power of the Court to conduct a special hearing: they create no statutory bar.

Reasons 11The starting point, of course, must be the statute itself, but it is notable that the concept of fitness to be tried is not a statutory construct. Rather, the concept expresses fundamental values of the common law as Wood CJ at CL demonstrated in R v Mailes [2001] NSWCCA 155; 53 NSWLR 251 (Spigelman CJ and Greg James J agreeing). Its origins may be traced to the procedural formalities of the medieval courts of law. By the early 18th century, as his Honour demonstrated by reference to Sir Matthew Hales's The History of the Pleas of the Crown (1736), it was clearly established law that if a "sane" offender became "mad" before his arraignment "he ought not by law to be arraigned during such his frenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment" (cited in Mailes at [114]). 12Notwithstanding frequent statutory intervention the fundamentals of these principles have not changed much over centuries. The locus classicus of the content of the concept of unfitness to plead in Australian jurisprudence is the judgment of Smith J in R v Presser [1958] VR 45 approved by the High Court of Australia in Kesavarajah v The Queen (1994) 181 CLR 230. The Act recognises that although it is better if, as in this case, the question of unfitness is raised before the accused is arraigned, it may be raised at any time "during the course of the hearing of the proceedings in respect of the offence". Moreover it may arise more than once "in respect of the same proceedings": s 7 of the Act; Mailes [7] - [16] per Spigelman CJ; [223] - [224] per Wood CJ at CL. 13Once the question is raised, it is for the trial judge to decide whether an inquiry should be conducted into the question (s 10) and if so, the determination is one for a judge alone (s 11). An "inquiry" might be refused if the question cannot be seriously entertained. If following inquiry the accused is found fit, the proceedings recommence, or continue, in accordance with the usual criminal procedures (s 13). If unfit, the proceedings may not continue and the Court must refer the accused to the Tribunal for the determination of the likely duration of the unfitness. The Court may also make consequential orders. 14A key provision relevant to the present question is s 15 which creates a rebuttable statutory presumption of continuity in respect of a finding either of unfitness or fitness, as the case may be. Where as here, there is a finding of unfitness s 15 provides: It is to be presumed: (a) that a person who has, in accordance with this part, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary, is on the balance of probabilities, determined to be the case, and (b) ................ 15This presumption is not rebutted by a determination of the Tribunal that the accused is likely during the period of 12 months after the finding to become fit. In such circumstances, subject to other statutory conditions, the Court is to hold a further inquiry as to the person's fitness: s 29 of the Act. Only if the Court, following further inquiry, finds the accused to be fit may the accused be tried for the offence: s 30. As can be seen, s 30 contemplates that after further inquiry, notwithstanding the determination of the Tribunal, the Court may yet find that the accused is unfit to be tried. In which event, the consequences spelt out in s 30(2) follow: see R v Wilson (No. 1) [2013] NSWSC 1146 and R v Wilson (No. 2) [2013] NSWSC 1288 at [17] - [22]. 16Moreover, the jurisdiction of the courts to conduct a special hearing is not contingent upon the conditions expressed in s 19 being satisfied (see Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 at 391 per Dixon J). As s 19(4) makes clear, it was within the contemplation of Parliament that the Court might have conducted a special hearing already before receiving notification of the initial determination of the Tribunal. The same contemplation animates s 30(2)(b). And nothing in the provisions of s 45, 46 or 47 displaces the conclusion I have expressed so far. Indeed, s 46 obliges the Tribunal to review the case of each forensic patient "every 6 months". This seems to contemplate an ongoing process extending beyond a period of 12 months. All of which is consistent with the common law foundation of the relevant principle. 17The clearest language would be necessary to support a construction that a special hearing must not only be commenced but also must be finalised within a period of 12 months from a finding of unfitness by the Court. Rather the legislation recognises that the question may arise at any time, and more than once. The Act creates a statutory presumption of continuity once a finding is made. As the provisions I have referred to demonstrate the presumption may only be rebutted not by a determination of the Tribunal but by a finding of the Court after further inquiry. This further inquiry may be triggered by the Tribunal's determination, but this is not the sole consideration contemplated by the legislation. This statutory context does not support the construction of s 19 advanced by the Crown. 18My ruling is that the language of s 19 Mental Health (Forensic Provisions) Act 1990 does not create a statutory bar to the continuation of this special hearing beyond the anniversary of the making of the finding of unfitness of Bellew J.

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