R v R.T.I.

R v R.T.I. - [2003] NSWCCA 283 - NSWCCA 2003 case summary — Zoe

[34]

In the records of interviews on 30 March 2000 and 11 May 2000, he provided laconic and at times monosyllabic answers. Most of them were reasonably to the point. It was when he gave extended answers that they became rather rambling and at times difficult to follow. However, answers similar to those I noted in the more recent documents were not found. They were also not found in his evidence given on 15 March 2001. It is thus possible that there has been some deterioration in him over the past year. I can only speculate on the possible causation. It might be the result of a progressive dementing process or the side effects of the increased dosage of his medication. In any case, as mentioned above, for the purpose of determining his fitness to be tried, it is his more recent level of functioning as revealed in the more recent documents that is more relevant. 14 On 19 September 2002 Judge Phelan, after a fitness hearing, found that the appellant was unfit to be tried in respect of the indictment relating to R.I. and referred the appellant to the Mental Health Review Tribunal. 15 By report dated 12 February 2003 Dr Westmore, after reviewing the evidence of the appellant at the two trials before Judge Twigg, concluded that the appellant was unfit to stand trial on both occasions. Dr Westmore was of the opinion that, given the chronic nature of the appellant's abnormalities observed by both him and Dr Wong after the trials, the abnormalities were likely to have been present and impacting upon the appellant in February and March 2002. 16 On 30 May 2003, after a fitness hearing, Judge Phelan found the appellant unfit to stand trial in respect of the indictment relating to R.P. 17 On 13 August 2003 the Mental Health Tribunal concluded that, on the balance of probabilities, the appellant would not become fit to stand trial during a period of 12 months after he was found unfit to stand trial. 18 On 19 September 2003 Dr Wong made a further report to the Crown in respect of the question whether the appellant was unfit to stand trial at the time of the trials before Judge Twigg. In the course of that report Dr Wong stated:

[37]

In coming to my conclusion that he was unfit to be tried at the two trials in February and March 2002, I did not rely on my assessment, based on my perusal of the transcripts of his evidence as to the extent to which he was disadvantaged at those trials by his disabilities. As I indicated in my report of 1.8.02, "I did not follow the trials and did not have the opportunity to observe his demeanour and assess the answers he gave in the context of the other available evidence". Furthermore, it was my opinion that his disabilities would render him incapable of giving meaningful instructions and adversely affect his ability to follow the evidence given by witnesses and the court proceedings generally. Such disabilities were not adequately revealed in his evidence. 19 The final two sentences, in particular, of the last paragraph Dr Wong's report quoted above reveal an apparent deficiency in the material provided to this Court in support of this ground of appeal. There is no direct evidence of any inability of the appellant during the trials before Judge Twigg to instruct his legal representatives or to follow adequately the evidence given by witnesses and the proceedings generally. No material has been placed before this Court to indicate why it was that his legal representatives determined to have the question of his fitness considered by a psychologist in April 2002. However, there is a reference in Dr Westmore's first report to observations by his legal representatives as to some difficulties that the appellant appeared to experience in relation to questioning while giving evidence. 20 For completeness I should note that there was material before Judge Twigg at the sentencing hearing of the appellant that indicated that the appellant was suffering from a psychotic disorder and would be a "mentally ill person" for the purposes of the Mental Health Act. 21 The Crown concedes that, based upon all the material available, the appellant was unfit at the time of the trials before Judge Twigg. It is unnecessary for this Court to determine whether the appellant was unfit at that time. In order to enliven this Court's jurisdiction, it is sufficient if there is material before the Court raising a question as to the appellant's fitness to stand trial before Judge Twigg. If such material exists, the Court has to determine whether there was the possibility of a miscarriage of justice arising. If the appellant was unfit at the time of the two trials before Judge Twigg, each of those trials was a nullity and the convictions would have to be quashed. 22 In Eastman v The Queen (2000) 203 CLR 1 the High Court was concerned with the question of whether the Federal Court had power to raise the issue of the appellant's fitness to stand trial in the absence of any ground of appeal relating to that issue and where it had not been raised by the parties either at the trial or on appeal. In considering that question some members of the Court considered the response of an appellate court where an issue arises as to the appellant's fitness to stand trial for the first time on appeal. 23 Gaudron J stated (footnotes not reproduced):

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[323] The analogy with cases of fresh evidence breaks down, in my view, in relation to the degree of persuasion the appellate court must have that the relevant issue is a live issue. (In a fresh evidence case, the issue is of guilt or innocence; in the present case, it is the issue of fitness to plead.) Gallagher held that there must be a "significant possibility" of acquittal, although Gibbs CJ warned against regarding the particular form of expression adopted as "an incantation that will resolve the difficulties of every case". How to formulate the quality which must attach to fresh evidence to ground a successful appeal was considered further in Mickelberg [(1989) 167 CLR 259 at 273, 274, 301-302] but it is not necessary, for present purposes, to stay to consider details of that discussion. Fitness to plead, going as it does to whether there could be a trial, raises different issues from those that arise in relation to cases of fresh evidence. In cases of fresh evidence (where guilt has already been decided by a jury) there is the competing consideration of the desirability of treating jury verdicts as final. No such issue intrudes in relation to fitness to plead for, as I have said, the issue is not guilt or innocence of the charge or how the trial should have proceeded. The issue is whether there should have been a trial. Accordingly, I consider the appropriate test in the present case to be as I have stated earlier: must the Tribunal, if the question had been put to it and it had acted reasonably, have found the accused to be fit to plead and stand trial? (my underlining) 25 The High Court gave further consideration to the impact of a finding of unfitness on a criminal conviction after trial and the approach of an appellant court to the issue of fitness being raised on an appeal against that conviction in Eastman v Director of Public Prosecutions (ACT) (2003) 77 ALJR 1122. That case was concerned with whether an inquiry into the guilt of an accused under s 475 of the Crimes Act (ACT) could encompass an inquiry as to the accused fitness to be tried. In holding that it could, Heydon J stated (footnotes not reproduced):

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[115] If an appeal is allowed on the ground that an accused person was unfit to plead, it is not possible to apply the "proviso" that permits criminal appeals to be dismissed if the appellate court considers that, despite the ground of appeal having been made good, no substantial miscarriage of justice has actually occurred. That is because the case is one "where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings". There has been "a fundamental failure in the trial process". If the accused is not fit to plead, the key adversary in a partly adversarial proceeding falls below a minimum level of competence. In this case, if the appellant had been unfit to plead, it would mean that he was incapable of understanding what he had been charged with, or incapable of pleading to the charge, or incapable of exercising rights of jury challenge, or incapable of understanding that the trial was an inquiry into whether or not he did what he was charged with, or incapable of following the course of the proceedings, or incapable of understanding the substantive effect of the evidence given against him, or incapable of deciding what defence to rely on, or incapable of instructing legal representatives, or perhaps incapable of doing any combination of these things. If the appellant had been unfit to plead, there could have been no adequate testing of the Crown case in cross-examination; no adequate process of objection to inadmissible Crown evidence; no adequate process of preventing erroneous rulings by the trial judge; no proper attention given to the defence answer to the Crown case or to any proper case which the defence might have been well advised to advance, whether that answer or case be testimonial, documentary or otherwise; and no proper development of defence submissions. 26 The Crown has drawn the Court's attention to the decision in R v Kent (NSWCCA, 25 September 1996, unreported). In that case a question of the appellant's fitness arose after trial but before he was sentenced. The trial judge refused to pass sentence on the appellant, who then appealed against his conviction. This Court determined that the appropriate course for it to take was to return the matter to the District Court under s 12 of the Criminal Appeal Act so that there could be a fitness hearing. This was a course proposed by those appearing for the appellant and it was a course to which the Crown consented. The Court ordered that, if the appellant was found unfit, the finding was to be reported back to it. 27 The matter was returned to the District Court and the appellant was found unfit to be tried. However, the judge making that finding did not make an order pursuant to s 14 of the Mental Health (Criminal Procedure) Act referring the appellant to the Mental Health Tribunal, notwithstanding the mandatory requirement to do so found in s 14(a). Instead the matter was again referred to this Court. It was not until 8 October 1998 that the matter came on for hearing. On that date the Court referred the appellant to the Mental Health Tribunal in accordance with s 14, see R v Kent (NSWCCA, 8 October 1998 unreported). 28 Before us the Crown has submitted that the procedure adopted in Kent should not be followed because there is no jurisdiction for a court to hold a fitness hearing after conviction and referred us to the provisions of the Mental Health (Criminal Procedure) Act in support of that submission. The provisions relevant to when a question of the accused's fitness may be raised and the procedure to be adopted where the question is raised are as follows:

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Procedure where question of unfitness raised after arraignment If the question of a person's unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence. 10. Procedure on raising question of unfitness (1) If, in respect of an offence: (a) the Attorney General determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or (b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence, the Court must (except as provided by this section), as soon as practicable after the Attorney General's determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence. (2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith. (3) Before conducting an inquiry, the Court may do any one or more of the following: (a) adjourn the proceedings, (b) grant the accused person bail in accordance with the Bail Act 1978 , (c) remand the accused person in custody for a period not exceeding 28 days, (d) request the accused person to undergo a psychiatric examination or other examination, (e) request that a psychiatric report or other report relating to the accused person be obtained, (f) discharge any jury constituted for the purpose of those proceedings, (g) make any other order that the Court considers appropriate. (4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released. 29 In my view the Crown's submission should be accepted. It is further supported by a consideration of the procedure laid down in the Act upon a finding of either fitness or unfitness. If the accused is found fit to be tried, the trial of the offence commences or continues: s 13 of the Act. If the accused is found unfit, the judge must refer the accused to the Mental Health Tribunal for a determination whether the accused will become fit within 12 months from the date of the hearing: s 14(a) of the Act. If the Tribunal determines that the accused will not become fit, there may be a special hearing directed: s 19 of the Act. This procedure is clearly not apposite to a situation where the accused has already been convicted of the offence in respect of which the question as to fitness has arisen. The provisions of the Act in relation to a special hearing and, in particular, the verdicts available at such a hearing cannot be sensibly applied where the accused has already been convicted of the offence to which the hearing relates. Similarly, s 23 of the Act, which is concerned with the fixing of a limiting term, can have no application where the accused has already been sentenced for the offence. 30 The Crown has pointed out that this Court has quashed a conviction in circumstances where the question of the accused fitness had been raised during the trial but the procedures of the Mental Health (Criminal Procedure) Act were not followed; R v Mailes (2001) 126 A Crim R 155 and R v Zhang [2000] NSWCCA 344. In each case it was held that there was a fundamental defect in the trial. 31 In light of the passages quoted above from Eastman v The Queen and Eastman v DPP (ACT) it seems to me that the procedure adopted in R v Kent is no longer appropriate. If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the Court can come to that finding that there will be no possibility of a miscarriage of justice. I do not believe that such a finding is open in the present case. Therefore, the convictions and sentences must be quashed and a new trial ordered. 32 SHAW J: I agree with Howie J.

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