R v SEXTON No. SCCRM-00-53, SCCRM-00-54 [2000] SASC 124

That amended "ground of appeal" was as a result of the members of the court also indicating to counsel when the matter was first called on that it may have been that the procedure which was adopted was not appropriate and that the question was not one for a jury but a question for the judge.

That application also has to be refused. It suffers from the same procedural difficulty as the original application for leave to appeal from the trial Judge's refusal to grant leave to appeal.

But where does that leave the applicant if in fact the wrong procedure has been adopted. It would be unfortunate if this 'verdict' could not be challenged before the applicant's trial was concluded, especially so because the applicant's case is that if he participates in the trial he will be caused physical harm. The applicant cannot, in this case, seek judicial review. Judicial review does not lie from this Court to another Judge of this Court: R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 263; Bird v Free (1994) 126 ALR 475.

The applicant is charged with a Commonwealth offence. The learned Trial Judge adopted the procedure he did because he felt obliged because of the provisions of s 20B of the Crimes Act 1914.

"20B (1) Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial. (2) If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable. (3) Where a court: (a) to which proceedings have been referred under subsection (1); or (b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences; finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned. (4) Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail. (5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail. (6) For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence. (7) In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established: (a) the person may give evidence or make an unsworn statement; and (b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and (c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter."

Section 16 provides that "unfit to be tried" includes unfit to plead.

Section 20B(1) requires a magistrate on any committal proceedings, being proceedings begun after the section has commenced, to refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial if the question of the persons fitness to be tried is raised by the prosecution, or the accused or the accused's legal representative.

The procedure in s 20B(2) is relevant if, on a matter referred by a magistrate under s20B(1), the court determines that the person is fit to be tried.

Section 20B(3) applies where a court finds a person charged unfit to be tried, upon referral by a magistrate. The court must determine whether there has been established a prima facie case that the person committed the offence concerned.

Section 20B(3) has two limbs to it. First it requires a court to determine that a person is unfit to be tried. Secondly if a court finds a person unfit to be tried the court must determine whether there has been established a prima facie case that the person committed the offence concerned.

The legislation does not make it clear in s 20B(3) whether the court there referred to is the court consisting of the judge or the court consisting of a judge and jury. I will return to that.

If however a court does find a person charged unfit to be tried then the court must determine whether a prima facie case has been established. Section 20B(6) provides that a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.

The exception provided in s 20B(6) would have at first blush appear to apply to any mental element which is lacking by reason of the person being unfit to be tried or unfit to plead. It is not easy to imagine any physical ailment especially of the kind that the applicant is suffering which would have any impact on s 20B(6). That may suggest that s 20B(6) has no application where the person is seeking a determination that he is unfit to be tried by reason of a physical ailment entirely unconnected with the offence for which he is charged.

Section 20B(7) allows the accused person to participate in the prima facie case even though that accused person is unfit to be tried or indeed unfit to plead.

In the circumstances where the person has a physical ailment which is of itself so serious that the person cannot participate in the trial and is therefore unfit to stand trial then of course that same physical ailment would prevent that person participating in the determination of the prima facie case.

If s 20B were to apply in such circumstances presumably the accused person would also apply to have the prima facie case stayed because he or she could not participate in the hearing of that case.

Again that might suggest that s 20B does not apply to applications for an adjournment or a stay based upon a physical ailment unconnected with the offence charged.

Section 20B is but one section in Division 6 of Part 1B of the Crimes Act. That division is headed "Unfitness To Be Tried".

Section 20BA(1) provides that if the court determines that there has not been established a prima facie case the court must dismiss the charge against the person and, if the person is in custody, release the person from custody.

If on the other hand, however, there has been established a prima facie case, but the court is of the opinion having regard to matters mentioned in s20BA(2), that it is inappropriate to inflict any punishment, or inflict punishment other than a nominal punishment, the court must again dismiss the charge and if that person is in custody order the release of the person from custody.

Where a court determines there has been established a prima facie case but the court does not form the opinion that it is inappropriate to inflict any punishment, the court must, as soon as practicable, after making the determination of a prima facie case, determine whether "on the balance of probabilities" the person will become fit to be tried within the period of 12 months after the day the person was found to be unfit to be tried; s20BA(4).

If a person is then found to be fit to be tried within a period of 12 months the court must, at the time of making that determination, also determine whether the person is suffering from a mental illness or a mental condition for which treatment is available in a hospital and whether the person objects to being detained in a hospital.

Section 20BB then provides for various procedures in the event of a finding of the kind to which I have just referred.

Section 20BC provides for procedures where a person is found that he or she will not become fit to be tried within 12 months after finding that the person was unfit to be tried.

Again it provides for the court determining whether the person is suffering from a mental illness or a mental condition for which treatment is available in a hospital.

Division 6, it seems to me, might be argued to only apply to persons who are suffering from a mental illness or a mental condition.

There is no doubt s 20B applies in circumstances where the unfitness to plead or unfitness to stand trial arises out of some mental disorder: R v Kesavarajah (supra). Indeed s 20B picks up the relevant State legislation. In this State such an inquiry would be governed by Part 8A of the Criminal Law Consolidation Act. But that Part has no application to a person who claims to be physically impaired and therefore unable to stand trial. There is in fact no statutory procedure in this State for an application of that kind.

The question that had to be determined is whether s 20B has any application in circumstances where an applicant is suffering from a physical ailment which might induce stress and might cause further physical injury to the accused and all of which might prevent the accused person participating in the trial. There is no question in this case of the accused's fitness to stand trial.

The purpose of s 20B is to guard against a person being convicted in circumstances where the person was unable to form the necessary intent being an element of the offence or alternatively if he or she has become unable by reason of a mental incapacity to plead or participate in his or her trial. But that does not necessarily answer the question whether s 20B requires the verdict of a jury where the objection to the trial continuing is on the basis that the applicant will be caused physical harm.

There is no right of appeal. Judicial review is not available. What other procedures might be used for the purpose of determining the correctness or otherwise of the procedure which was adopted?

Section 352(2) allows this Court, on an appeal or an application for leave to appeal, to require the court of trial to state a case on the questions raised in the appeal or proposed appeal and the matter will be then dealt with in accordance with the provisions applicable to cases stated in the same way as if the questions had been reserved.

However the applicant could not avail himself of s 352(2) in this case because there is no competent appeal or competent application for leave to appeal to this Court. The jurisdiction which is given to this Court under s 352(2) assumes that the Full Court is either seized of a competent appeal or application for leave to appeal.

The Judge could have, if he had been asked, reserved for consideration of this Court a relevant question on an issue antecedent to trial or relevant to the trial or sentencing of the defendant under s 350(1) of the Criminal Law Consolidation Act. However he was not asked to do that.

"(2) A relevant question must be reserved for consideration and determination by the Full Court if - (a) the Full Court so requires (on an application under this section or under another provision of this Part), or (b) the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court."

Clearly, of course, para (b) has no application. The question is whether para (a) has any application.

A relevant question is defined in s 350 to mean:

"(a) A question of law; or (b) to the extent that it does not constitute a question of law - a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised."

This Court can only require a Judge to reserve for consideration and determination by this Court a relevant question which comes within the definition in s 350(a)(1). I think an application for an adjournment or a stay by reason of physical impairment in the circumstances which are under consideration in this case does give rise to both a question of law and a question about how a judicial discretion should be exercised. It seems to me therefore that the question which was before the trial Judge is a relevant question.

During the hearing the applicant indicated that he would apply under this section for the reservation for consideration and determination of that relevant question and therefore has invoked the jurisdiction given to this Court under s350(2).

It seems to me therefore that the only way this Court can become seized of this matter to determine whether the procedure adopted was correct is if this Court requires the Judge to reserve for consideration of this Court the question whether on an application of this kind the question for unfitness to stand trial is a question for the jury or for the Judge.

It could be said, in a sense, that this matter has become academic. In fact the trial Judge adjourned the trial because the applicant was unfit in the opinion of the Trial Judge to stand trial. He did not refer the matter back to jury but made that determination himself. However, there is a verdict of the Court which says that the applicant was at the time that the verdict was delivered, fit to stand trial.

It seems to me that it would be appropriate in the interests of the administration of justice to ask the Trial Judge to reserve for this Court's consideration a question of law in the terms proposed.

NYLAND J. I agree with the reasons of Debelle J and with the order he proposes.