R v R.T.I.

LOWER COURT District Court JURISDICTION : LOWER COURT 00/41/0192 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60001/2003

TOBIAS JA HOWIE J SHAW J

FRIDAY 3 OCTOBER 2003 R v R.T.I. Judgment 1 TOBIAS JA: I agree with the reasons of Howie J for the orders previously made by the Court. 2 HOWIE J: On 1 October this Court made orders allowing the appeal and quashing the convictions and sentences arising from trials before Judge Twigg. The Court ordered a new trial in respect of the charges upon which the applicant had been convicted. These are my reasons for concurring in the making of those orders. 3 The appellant stood trial before Judge Twigg and a jury on two separate occasions for offences of child sexual assault offences allegedly committed against two of his daughters. The first trial related to the complainant K.I. and commenced on 25 February 2002. On 5 March 2002 the jury convicted the appellant of four counts involving offences under each of ss 61E(1), 66A, 61E(2A) and 61E(1)(A) of the Crimes Act. The second trial related to the complainant M.I. and commenced on 4 March 2002. On 8 March 2002 the jury convicted the appellant of two counts being an offence under s 66A and an offence under s 66C(2) of the Crimes Act. 4 On 20 June 2002 Judge Twigg sentenced the appellant as follows. In respect of the convictions relating to K.I. as follows:

(i) imprisonment for 2 years to date from 10 May 2000;

(ii) imprisonment for 5 years to date from 10 May 2000;

(iii) imprisonment for 2 years to date from 10 May 2000;

(iv) imprisonment for 3 years to date from 10 May 2000.

His Honour declined to fix a non-parole period in respect of any of these sentences because of the sentence that he was to impose upon the fourth count in the second indictment. The date of 10 May 2000 was the date upon which the appellant first went into custody. 5 In respect of the convictions relating to M.I. and arising from the second indictment, his Honour sentenced the appellant as follows:

(i) 10 years imprisonment to date from 5 May 2005 with a non-parole period of 5 years to expire on 9 May 2010;

(ii) imprisonment for 5 years to date from 10 May 2000. 6 The effective head sentence was, therefore, 15 years imprisonment to date from 10 May 2000 with an overall non-parole period of 10 years. The appellant is eligible for release to parole on 9 May 2010. 7 There is only one ground of appeal against conviction being:

A miscarriage of justice occurred due to the absence at the trial of evidence which was not available at the time of the trial.

The fresh evidence, which is relied upon in support of this ground of appeal, is psychiatric and psychological evidence as to the accused's fitness to stand trial at the time of the two trials with which the appeal is concerned. A number of reports have been placed before us which relate to the appellant's mental state at various times both during and subsequent to the trials before Judge Twigg. 8 The question as to the appellant's fitness arose following the second trial. The appellant was to stand trial on two further indictments one relating to allegations of sexual misconduct raised by his son R.I. and the other to allegations of a third complainant, R.P. of a similar nature to those the subject of the trials with which this Court is now concerned. 9 As a result of disquiet felt by his legal representatives about the appellant's mental state, a psychologist, Katherine Barrier, was asked to assess him. In a report dated 14 March 2002 Ms Barrier indicated that the issue of his fitness could not be answered until he was assessed by a psychiatrist. In the course of her report Ms Barrier stated, with regard to the appellant's presentation to her at the time of her interview with him:

He was mentally oriented and alert throughout the meeting but there were signs of psychomotor slowing and lethargy. He was only able to give a very sketchy personal history. Whilst there were no critical indications of thought disorder, he reports hearing voices and it is noted he is on antipsychotic medication.

Ms Barrier concluded from IQ tests administered to the appellant that he would fall within the Mildly Intellectually Handicapped category so far as his general functioning was concerned. In respect of this finding, she stated:

Whilst [the appellant's] IQ test results alone would not necessarily preclude him from giving consistent evidence to the Court providing the recommended allowances for those with an intellectual disability are made, it is certainly possible that other factors, namely his mental health status, likely specific organic deficits from chronic substance abuse and stress about giving evidence, are further eroding already very limited memory functions. 10 On 18 March 2002, as a result of the tender of this report, Phelan DCJ adjourned the trial that was to have commenced on that day so that the appellant's mental condition could be further assessed. 11 In a report dated 10 April 2002 Dr Wong, a psychiatrist briefed by the Crown, stated:

As mentioned above, the accused had a satisfactory knowledge of the criminal justice system which is certainly adequate for him to stand trial. I agree with Ms Barrier that his subnormal intelligence by itself probably would not render him unfit to be tried.

The accused was alleged to have committed the offences on [R.P.] between the years 1982 and 1987. He was not aware that such was the case and appeared unconcerned when told. As well, he did not bother to find out other details of the allegations and dismissed them as unimportant. In relation to pleading not guilty, all he would like to tell his solicitor was that he did not do it and that the victims lied. He was happy to leave it at that and say no more. I am not suggesting he was disabled because he was unable to come up with a credible defence. It might well be that there was not any. What concerned me was the observation that he did not appear to be motivated or have the incentive to defend himself. This could be put down to his undue indifference and apathy. Such emotional abnormalities are not by themselves severe. However, coupled with his subnormal intelligence and perhaps some memory impairment, they would I feel render him incapable of giving meaningful instructions. As well, these disabilities, acting in combination, would adversely affect his ability to follow the evidence given by witnesses and the court proceedings generally.

I am therefore of the opinion that the accused was not fit to be tried. 12 By a report dated 3 May 2002, Dr Westmore, a psychologist retained by the defence, found that the appellant was "on his current clinical presentation, unfit to be tried". The Doctor was of the opinion that:

[The appellant] qualifies for the diagnosis of alcohol abuse and substance abuse. His current clinical presentation is consistent with either a chronic schizophrenic illness with a significant mood state component or a chronic depressive illness with a psychotic component. He is also of compromised intelligence.

[The appellant] is a fifty-four year old man who is on his current clinical presentation, unfit to be tried. While he presents clinically as being of dull intelligence, he has had I note limited education. I concur with the opinion of the psychologist, that his intellectual deficit problems would not in and of themselves result in him being unfit to be tried.

His [un]fitness arises from his overall cognitive impairment which is being impacted upon by his mental illness. His mental illness also is adversely impacting on his fitness to be tried.

While a definitive diagnosis may be unclear, the history would suggest this man has a chronic mental illness of some type. The essential features on his current presentation are his blunted affect, his flat unresponsive depressed mood state and his reported auditory hallucinations. He has in addition memory difficulties and some comprehension problems in relation to the Presser issues.

I note in the brief provided to me that during his previous trials [the appellant] appeared tired and ill, he was observed to sweat and drink large amounts of water. The consumption of a large amount of water may arise as result of the dry mouth occurring secondary to antipsychotic medications and/or antidepressants and/or levels of anxiety. Long term use of some antipsychotic medication can produce the side effect of polydipsia. You note in addition that his instructions did not always correlate with the evidence he had given or with earlier instructions. You note he only had vague recollections at times of being asked certain questions and that he provided different responses to the same question

These descriptions by you of [the appellant] are consistent with his current presentation. I think he would be a most unreliable witness both in evidence and in chief and this unreliability arises from his intellectual problems and his chronic mental illness.

I do not believe that [the appellant] would be able to attend and concentrate or follow a trial adequately, he would not be able to provide [his legal representatives] with instructions regarding the allegations or ongoing instructions during the course of a trial. He would miss critical aspects of the trial due to his intellectual and psychiatric problems. 13 The Crown requested that Dr Wong review his opinion having regard to material arising from the two trials before Judge Twigg and the evidence given by the appellant on sentence. By a report dated 1 August 2002 Dr Wong indicated that he was prepared to stand by his earlier opinion. During the course of his report, Dr Wong referred to specific parts of the evidence given by the appellant during the two trials and during the sentencing hearing on 20 June 2002. Dr Wong stated:

The answers referred to above were consistent with and in some cases, highly suggestive of him having difficulty in adequately grasping the questions asked and/or having an impaired memory and thereby being disadvantaged. In some instances, it was fairly obvious from the answers themselves that such disabilities existed. In other instances, this was not as readily evident and unwarranted adverse inferences might be drawn, thereby further disadvantaging him.

While giving evidence, he was asked to recall certain past events. I am unable to determine whether some of the answers he gave were factually accurate. As well, I was unable to say whether they were genuine. It was therefore difficult for me to determine, by cruising the documents, to what extent he had been disadvantaged by his memory impairment.

In conclusion, the documents made available to me tended to bear out the presence in him of the disabilities identified in my last report. Having very carefully reviewed the matter, I stand by my conclusion the accused is unfit to be tried.

Some of the documents perused indicated that he was capable of making mitigatory or exculpatory statements……….. This was not inconsistent with the presence of the disabilities in him. As I stated in my last report, his disabilities were not profound and I did not consider they were such as would preclude him from making such statements. I reached my conclusion on his fitness on the basis that notwithstanding his capacity in this regard, he would nevertheless be significantly disadvantaged by his disabilities. In his report, Dr Westmore referred to the observations by the accused's legal representatives that "his instructions did not always correlate with the evidence he had given or with earlier instructions" and that "he only had vague recollections at times of being asked certain questions and that he provided different responses to the same question during his trials". These were the more subtle difficulties I envisaged he would have as a result of his disabilities.

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:

Most of the disabilities present in him when seen on 2.4.02 were slowly evolving. They were unlikely to fluctuate significantly in severity within, say, five to six weeks. The two trials in question took place from 25.2.02 to 5.3.02 and from 4.3.02 to 8.3.02 respectively. When I examined him, it was just over a month after the commencement of the earlier of the two trials. I am of the opinion that more likely than not, his disabilities were in place during the two trials, thus rendering him unfit to be tried at the time. It was unlikely that there would be any significant difference in his functioning then compared with his functioning on 2.4.02.

In my report of 1.8.02, I observed that there was some apparent deterioration when his functioning in March 2000, May 2000 and March 2001 on the one hand, was compared with his functioning in February and March 2002 on the other hand. However, that occurred over a significantly longer period of time.

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):

[86] Unless there is material to suggest otherwise, a person is presumed fit to plead. And that is so both at trial and on appeal. At trial however, that presumption is displaced if there is material which raises a question as to that person's fitness to plead. Moreover, if there is a question as to the accused person's fitness to plead, the trial must stop unless and until the appropriate body determines that he or she is fit to plead.

[87] Once it is accepted that the law acknowledges that a person who is not fit to plead may also lack the capacity to raise that issue, it must follow that the role of an appellate court differs from that of a trial judge in one respect only, namely, that it looks to the past whereas the trial judge is concerned with events as they are happening. More precisely, if there is material suggesting that the appellant was not fit to plead, an appellate court must inquire whether, at the time of the trial, the appropriate tribunal could not reasonably have found the appellant not fit to plead . (my underlining) 24 Hayne J stated (footnotes not reproduced):

[319] The Full Court was bound to set aside the conviction if there was a miscarriage of justice. And there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. That is, to adopt the terms used earlier, there is a miscarriage of justice if there is a real and substantial question to be considered about the accused's fitness. The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this Court and in intermediate appellate courts in which questions of fitness have been raised on appeal. There the question for the appellate court has been treated as being whether there was a question as to the accused's fitness, not whether the appellate court was persuaded that the accused was not fit. Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside .

[320] A conclusion by a Court of Criminal Appeal that an accused may not have been fit to plead or stand trial requires the court to quash the conviction. There has been a trial where the accused may not have been fit and that is a miscarriage of justice. But the further question which then arises is, what consequential order should be made? If the appellate court were affirmatively persuaded that the material before it demonstrated that the accused was not fit, not only would the conviction be set aside, the appellate court would make such order as the trial judge should have made on such a finding. If, however, as would ordinarily be the case, the appellate court could not reach that affirmative conclusion, it would set aside the conviction and order a retrial, thus allowing the statutorily prescribed tribunal to determine the issue of fitness. This was what was done by this Court in Kesavarajah and it is what has often been done by intermediate courts in cases where it was said that the trial judge should have concluded that there was a case for investigation of the accused's fitness.

[321] In this respect the question of fitness does not differ from many cases which come before a Court of Criminal Appeal. In some cases of miscarriage of justice, the court will set aside the conviction and order a new trial; in others, it will set aside the conviction and order the entry of a verdict of acquittal. There is no reason to say of cases where fitness to plead first emerges as an issue on appeal that a Court of Criminal Appeal must itself try that issue to finality and decide whether unfitness is demonstrated.

[322] Cases of fresh evidence offer a useful analogy in some, but not all, respects. If evidence which was not available at trial is adduced on an appeal against conviction, and if there is a significant possibility that a jury, acting reasonably, would have acquitted the accused if the evidence had been before it, the unavailability of that evidence amounts to a miscarriage of justice. Miscarriage of justice is not confined to cases of demonstrated error at trial. Further, the assessment of evidence (at least evidence going to the issue of guilt) is ordinarily a matter for the tribunal of fact -- the jury -- not for the appellate court. It follows that, ordinarily, in such a case, the appellate court sets the conviction aside and orders a new trial. But, as Barwick CJ pointed out in Ratten v The Queen [(1974) 131 CLR 510 at 518], there may be cases where the new evidence persuades the appellate court that the accused is innocent, or at least that a reasonable jury must entertain a doubt as to guilt. In such a case the conviction would be set aside and a verdict of acquittal entered.

[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):

[114] An essential function of the criminal trial is to minimise the risk that innocent persons will be convicted. It does this by ensuring that the prosecution case, taken as a whole, consists of potentially reliable evidence presented in an unprejudiced manner. The legal system is prepared to tolerate some lack of concordance between those who are convicted and those who are in truth guilty, in the sense that it is prepared to accept the practical possibility that some persons who are not innocent are acquitted. But it does not accept that any persons who are innocent should be convicted. Because it does not accept the latter outcome, it employs numerous means to prevent accused persons who are innocent from being convicted. Those means centre on the institutions and techniques used to ensure a fair trial - an independent judiciary and, where applicable, an independent jury; an ethical code binding the prosecution which is in part reflected in rules of law; the burden and standard of proof; the applicable rules of evidence; and the rule preventing an accused person from being tried unless that person is fit to plead. That last rule is among the key rules of criminal procedure which seek to ensure that a successful prosecution case rests on reliable evidence. If the accused is not fit to plead and stand trial, there can be no trial.

[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:

7. Time at which question of unfitness may be raised (1) The question of a person's unfitness to be tried for an offence is, so far as practicable, to be raised before the person is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence. (2) Nothing in this section prevents the question of a person's unfitness to be tried for an offence from being raised on more than one occasion in respect of the same proceedings.

8. Procedure where question of unfitness raised before arraignment (1) If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. (2) The Attorney General may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted.

9. 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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