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

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

[9]

"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."

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

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

Legislation Cited (2)

Criminal Law Consolidation Act 1935s 348, s

Cases Cited (11)

Judgment No. [2000] SASC 124

Although the High Court held in Director of Public Prosecutions v B [1998] HCA 45; (1998) 155 ALR 539 that a case could not be stated on a matter arising before the commencement of the trial, that decision concerned the terms of s 350 before it was amended in 1996 by the Act No 90 of 1995 which came into operation on 4 January 1996. Section 350 empowers this Court to require a case to be stated. That power is not subject to any qualification expressed in either s 350 or elsewhere in the Criminal Law Consolidation Act. However, it is not a power which will be lightly exercised. Certainly it will not be exercised merely because an appellant finds that his appeal is incompetent. While the court should not usually permit interlocutory appeals in criminal trials, it may exercise its discretion to direct that a case be stated where the questions are of general importance and will not delay the trial: Application for Reservation of Question of Law (No 2) (1997) 196 LSJS 1; Director of Public Prosecutions (Cth) v Gee (1999) 204 LSJS 303 at 312 - 314. As this Court said in R v Gee [1999] SASC 116; (1999) 72 SASR 593 the power should only be exercised in unusual or exceptional cases.

Central to the resolution of that question is how a court should determine whether a defendant's physical ill health should cause a trial for an offence against the law of the Commonwealth to be adjourned or permanently stayed. Should the application be determined pursuant to the requirements of Division 6 of Part 1B of the Crimes Act (ss 20B to 20BH) or pursuant to the court's inherent jurisdiction to stay criminal proceedings which will result in an unfair trial: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; R v Hakim (1989) 41 A Crim R 372; R v Walker (1998) 101 A Crim R 152 at 161.

Furthermore, there is little judicial discussion of the operation of s 20B. One instance is the unreported judgment of Judge Wilson in R v Warming (District Court, 1 October 1993, D2911) which was followed in R v Burns. In Warming the question was whether the physical ill-health of the accused rendered him unfit to be tried and that issue was determined pursuant to s 20B. In Polyukhovich v The Commonwealth [1990] HCA 40; (1990) 64 ALJR 589, a stay was granted of the determination of the defendant's fitness to be tried but that case did not require the court to consider whether s 20B distinguished between physical unfitness and mental unfitness. Similarly, in Kesavarajah v The Queen (1994) 181 CLR 230 it was unnecessary to consider the distinction between physical and mental unfitness for trial.

(1994) 126 ALR 475

(1976) 136 CLR 248

(1998) 155 ALR 539

(1992) 177 CLR 292

(1994) 181 CLR 230

(1990) 64 ALJR 589

(1999) 72 SASR 593

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)