R v SEXTON No. SCCRM-00-53, SCCRM-00-54, SCCRM-00-143 [2000] SASC 276

The questions reserved for consideration and determination by this Court should be answered in the manner he proposes.

WILLIAMS J I agree that the questions reserved should be answered in the manner proposed by Gray J for the reasons which he has given.

GRAY J The Court has before it a case stated for consideration and determination on questions reserved pursuant to sections 350 and 351 of the Criminal Law Consolidation Act 1935 (SA). The case stated has arisen from applications by the accused, William Alfred Sexton (Sexton) to have his trial stayed or adjourned on the grounds of ill-health. The questions of law to be considered primarily concern the procedure for determination of unfitness to stand trial, where the accused is charged with a federal offence.

Sexton was jointly charged with five others with "Being Knowingly concerned in the Importation of a Prohibited Import" contrary to section 233B(1)(d) of the Customs Act 1901 (Cth). The offence is alleged to have been committed in 1997. Sexton was first arraigned in the District Court on 31 August 1998, at which time he pleaded not guilty.

By application dated 8 November 1999, Sexton sought to have the proceedings permanently stayed on the basis that he was medically unfit to stand trial.

On 3 December 1999, Olsson J in R v Burns & Ors (No 2)[1] held that Division 6 of the Crimes Act 1914 (Cth) applied, the provisions of which effectively oust the operation of the court's common law powers to grant a permanent stay of proceedings. Citing Kesavarajah v R[2], Olsson J held that once a question of fitness to be tried is raised in relation to a federal offence, the issue should be tried by jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried.[3] On the merits, Olsson J found that the medical evidence did not disclose a situation requiring the issue to be put to a jury.

On 23 February 2000 Sexton made a further application that the proceedings be stayed permanently or until further order. In the alternative, he argued that the trial should be adjourned. The application contained the following particulars:

"That the applicant Sexton suffers from coronary artery disease which is medically inoperable. Medical opinion is that the stress and emotional demands of a criminal trial will cause the applicant to suffer severe chest pains, angina or further heart attacks, all of which could necessitate periods of hospitalisation. Each episode will cause further deterioration to the applicant's medical condition. The applicant's medical condition is unlikely to improve due to several factors. It is in the interests of justice and fairness to the applicant that his trial in these proceedings be permanently stayed. The enormous extra stress placed on the applicant's heart due to his hearing loss will of itself be traumatic. In view of the applicant's medical condition and the maximum medication (drugs) prescribed it is highly probable that as the trial progresses he will be unable both physically and mentally to properly defend himself."

On this occasion, Olsson J considered that the material was such that a reasonable jury could find that Sexton was not fit to be tried. A jury was empanelled and the application was heard on 7 March 2000.

The jury unanimously decided that Sexton had not satisfied them on the balance of probabilities that he was unfit to be tried.

On 13 March 2000 immediately before the trial was due to commence, Sexton sought leave to appeal the jury's decision. In the alternative, he sought a stay of the trial. Olsson J refused both applications and a jury was empanelled to hear the trial. The matter was then adjourned until 14 March 2000.

Immediately before the jury entered the court room, Sexton left as he was feeling unwell. He was later hospitalised and the matter was eventually adjourned until some assessment could be made of his medical condition. Following these events, the prosecution agreed that Sexton be severed from the trial. His trial has been adjourned, sine die.

On 17 March 2000 Sexton filed a notice of appeal and an application for leave to appeal against the antecedent decision. The application was heard by the Court of Criminal Appeal on 19 April 2000 and judgment was delivered on 16 May 2000.

The court[4] unanimously decided that the purported appeal and application for leave to appeal were incompetent.

Notwithstanding this decision, the court gave some consideration to the question of whether the correct procedure had been followed in determining Sexton's fitness to stand trial. By way of obiter dicta, they intimated that the procedure followed by Olsson J was incorrect. Debelle J (with whom Nyland J agreed) stated at [17]:

"Standing alone, the expression 'fit to be tried' includes both physical and mental capacity or incapacity. However, when regard is had to the context in which s 20B appears, it seems that the procedure there prescribed is intended to deal only with the question whether a person is mentally fit to plead or to be tried."

As a result of their concern, the court unanimously ordered that the learned trial judge state a case for consideration and determination by the Full Court:

"on the issue whether the application of the appellant that his trial be stayed or adjourned on the ground of his ill health should be determined pursuant to s 20B of the Crimes Act 1914 (Cth) or by the trial judge".

The following questions, in slightly different terms, have been reserved for consideration and determination by this court:

(1) Was it correct that the application of the accused William Alfred Sexton that his trial be stayed or adjourned (and, if so, for how long) on the grounds of his ill-health be determined pursuant to Division 6 of the Crimes Act 1914 (Cth)?

(2) If the answer to Question 1 is "no", is the procedure to determine the application that usually adopted under Rule 8 or Rule 9 applications with the hearing of any evidence and argument before and determination by the trial judge sitting alone?

Question 2 obviously requires rephrasing to be worded as follows:

(2) If the answer to Question 1 is "no" is the procedure to determine the application that which is usually adopted under Rules 8 or 9 of the Supreme Court Criminal Rules 1992 with the determination being made by the trial judge sitting alone?

The trial judge and the majority in the Full Court considered that s 20B prescribed the procedure for determining whether a person charged with an offence against the law of the Commonwealth is fit to plead or be tried.

The trial judge said in the course of summing up to the jury:

"Under the Commonwealth Crimes Act, which governs the procedural aspects related to the trial of the charge against Mr Sexton, it is the province of the jury to determine whether or not he is fit to stand trial."

Debelle J (with whom Nyland J agreed,) said at [17]:

"Section 20B prescribes the procedure for determining the question whether a person charged with an offence against the law of the Commonwealth is fit to be tried."

Lander J took a different view. At [96] he said:

"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. 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."

Submissions were heard on the questions of law reserved on 17 July 2000. On that occasion, there was some discussion about the appropriate interpretation of the questions reserved. The first question identifies the application as one relating to the ill-health of Sexton.

Counsel for the Commonwealth DPP (DPP), submitted that the court should answer the questions reserved on the basis that they refer solely to physical ill-health and not based upon any form of mental impairment. Counsel for Sexton, supported the submission of the DPP.

As has been earlier noted, Sexton's application asserted that his medical condition was such that he would "be unable both physically and mentally to properly defend himself." Expert medical evidence about his abilities to cope with stress and its effect on his concentration was provided. His Honour's summing up to the jury left open the issue of Sexton's physical and mental capacity to cope with the trial.

To rephrase the question as suggested would beg the issue that arose before Olsson J. It is well settled that physical impairment alone, such as arises with an accused who is deaf and dumb may lead to a finding of unfitness to stand trial.[5]

Changing the basis of the case stated would lead to the posing of questions purely hypothetical to Sexton's application. The Court ordered that the case be stated with respect to ill health. The learned trial judge stated the case and reserved questions in those terms. The questions reserved would be hypothetical, thereby causing this Court's answers to be in the form of an advisory opinion rather than a declaratory judgment. In Bass v Permanent Trustee Co Ltd[6] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at [48]:

"... one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments (Zamir & Woolf, The Declaratory Judgment, (2nd ed 1993)) emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:

'If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.' "

Rephrasing the case stated in the way counsel suggested will not resolve the issue of what was the correct procedure to determine Sexton's application. This situation can be compared to Bass where the Full Court of the Federal Court gave certain answers to questions reserved on the issue of pleadings. Having made the above observations, the High Court went on to say at [49]:

"At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred."

These remarks are of particular relevance if the case stated is rephrased as counsel suggested. I reject the submission that Question (1) of the case stated be rephrased. Question (2) is to be rephrased as earlier discussed.

Division 6 of the Crimes Act is titled "Unfitness to be tried". It should be noted from the outset, however, that the provisions in Division 6 do not prescribe the procedure for determining whether a federal offender is unfit to be tried. As the title of s 20B suggests, the Division only sets out the consequences of a preliminary finding that a person is unfit to be tried.

"20B Consequences of preliminary finding that person unfit to be tried

(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.

(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 20B is followed in Division 6 by ss 20BA to 20BH which further regulate the procedure to be followed when dealing with an accused who has been found unfit to be tried. In particular, the sections set out criteria for deciding whether the accused should be detained in a prison or hospital, whether the accused should be released subject to certain conditions, or whether the charges should be dismissed.[7]

The High Court considered s20B in Kesavarajah v R[8]. Mason CJ, Toohey and Gaudron JJ (with whom Deane and Dawson JJ agreed on this issue) said at (241):

"The Commonwealth Act does not make provision for the manner in which the issue of fitness to be tried is to be determined. However, s 68(1) of the Judiciary Act 1903 (Cth) makes applicable to persons who are charged with offences against the laws of the Commonwealth the laws of a State or Territory respecting the procedure for trial of persons charged with offences and their conviction. And s 79 of the Judiciary Act provides that the laws of each State, including laws relating to procedure, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable."

"The Commonwealth Act does not prescribe a procedure for determining whether an accused person is fit to be tried except in so far as it relates to a court finding a person charged unfit to be tried. These references are capable of being understood as references to a finding in conformity with the procedure prescribed by the law of a State in accordance with ss. 68 and 79 of the Judiciary Act."

"The result of this interpretation is that, in relation to proceedings for an offence against a law of the Commonwealth, the provisions of the State law must necessarily give way to the specific provisions of the Commonwealth Act to the extent of any inconsistency. The consequence would be that State law would regulate the mode of determination of fitness to be tried, ie, by jury in Victoria pursuant to s 393, but the consequences flowing from the determination would be regulated by Commonwealth law."

In my view, Olsson J and the majority in the Full Court were in error in considering that s20B of the Crimes Act prescribed the procedure for determining the question of whether a person was fit to be tried for an offence against Commonwealth law.

Upon Sexton's initial application for a stay of proceedings on the grounds of unfitness to stand trial, Olsson J in his ruling R v Burns & Ors (No 2)[9] said at [42]:

"Kesavarajah v The Queen ... stands as authority for the proposition that, once a question of fitness to be tried is raised in relation to a federal offence, the issue should be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried."

As earlier observed, Kesavarajah does not stand for such a proposition. That case was an appeal from the Supreme Court of Victoria and dealt with the question of the fitness to plead of an accused charged with both federal and state offences. The need to empanel a jury arose from the fact that under s 393 of the Victorian Crimes Act 1958, a jury determines the question of whether a person is fit to be tried. It was held that state law regulates the mode of determination.

"It seems to me that, in relation to the types of federal offence to which it applies, it effectively ousts the operation of the common law inherent powers of the court to grant a permanent stay on the ground of existing unfitness to be tried."

In my view this proposition is not correct. A statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or it is a matter of necessary implication. There is nothing in section 20B to suggest that the inherent jurisdiction of the court to grant a permanent stay has been abrogated. The reasoning in Kesavarajah v R is inconsistent with such a proposition.

Sections 68(1) and 79 of the Judiciary Act 1901 (C'th) operate. In this case, the mode of determination is regulated by state law subject to one matter provided for by section 20B of the Crimes Act raising an inconsistency. This provision is discussed later.

Section 79 of the Judiciary Act

As observed, Parliament in enacting s20B did not set out to identify what factors the court should have regard to when determining "unfitness to be tried". No test is propounded. No criteria are identified.

Section 79 of the Judiciary Act provides that the laws of each state, including the laws relating to procedure, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that state, in all cases to which they are applicable.

Although this point did not directly arise for decision in Kesavarajah, the reasoning in that case recognised that section 79 of the Judiciary Act had the effect of picking up section 393 of the Victorian Act which together with the common law provided the test of unfitness for trial. As Mason CJ, Toohey and Gaudron JJ said at 244:

"In the context of s 393, the word [insane] signifies inability, by reason of some physical or mental condition, to follow proceedings of the trial and to make a defence in those proceedings. Thus, it has been said that the test needs to be applied 'in a reasonable and commonsense fashion'. The test looks to the capacity of the accused to understand the proceedings and, in some cases, complete understanding may require intelligence of quite a high order. But it does not mean that the accused is required to have sufficient capacity to make an able defence."

As section 79 has application, state law will provide the criterion. It may do so through the common law and by statutory provision.

As Gaudron J remarked in Eastman v R[10] fitness to plead is a concept that derives from the common law and statutory provisions usually bear upon the determination of the issue.

Most jurisdictions now provide detailed legislation outlining the procedure a court is to follow when determining unfitness. In South Australia, the issue is addressed by Part 8A of the Criminal Law Consolidation Act. Division 3 of Part 8A is titled "Mental unfitness to stand trial".

" (1) An investigation under this Part by the Supreme Court or the District Court into -

is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone."

Section 269H deals with mental fitness to stand trial and provides:

" A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is -

(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or

(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or

(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings."

It is to be observed that this section makes reference to mental unfitness, in contrast to mental illness. Mental unfitness is identified as a disorder or impairment to a person's mental process so that the person is, in general terms, unable to understand the trial process and their part in that process.

A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause is the relevant criterion to determine unfitness for trial. Section 269H encapsulates the same criterion as the common law in regard to the determination of unfitness for trial.

In Eastman v R[11] at [64-65] Gaudron J spoke of the common law guarantee of a fair trial and that an accused person not be tried "unless he or she is fit to plead". She said:-

"Traditionally, an accused person has not been put on trial unless fit to plead because of 'the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing'. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.

It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication. There is nothing in s 428E to suggest any departure from the common law's guarantee of a fair trial according to law or, if there be a difference, the common law's requirement that an accused person not to be tried unless he or she is fit to plead. On that basis, s 428E is to be construed as doing no more than directing the trial judge as to the steps to be taken if 'on the trial of a person ... the issue of fitness to plead ... is raised'. It says nothing as to the situation if, for whatever reason, there is a question as to the accused's fitness to plead but the issue is not raised at the trial."

At common law the issue of fitness to plead is left to the jury.[12]

Nothing in section 269H or Part 8A suggests that there should be any departure from the recognition of an accused's right to a determination that he or she is unfit to stand trial, as provided for, and protected by, the common law.

An early discussion of fitness to plead can be found in the case of R v Pritchard[13] where it was said in general terms that a person is fit to plead if he or she has sufficient understanding to comprehend the course of proceedings on the trial, so as to make a proper defence to the charge. As was said in Ngatayi v R[14] at (6):

"His Lordship was there explaining to a jury the effect of s 2 of the Criminal Lunatics Act 1800 (39 and 40 Geo III c 94) which contained the words:-

'if any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment ...'

Alderson B said (1836) 7 Car & P at p 304 [173 ER at p 135]:

'The question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge.'

He went on to say that there are three points to be inquired into, of which the third is:-

'whether he' [the prisoner] 'is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.'

The word 'comprehend' in this passage meant no more than 'understand' (see Reg v Podola [1960] 1 QB 325, at p 354.

In R v Pritchard the prisoner was not insane but deaf and dumb. And the words of s 2 of the Criminal Lunatics Act 'have in many cases since 1800 been construed as including persons who are not insane within the M'Naughten Rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings': Reg v Podola [1960] 1 QB, at p 353."

Smith J in R v Presser[15], said (at 48) that, to be fit to plead, a person must be able:

"... to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand ... the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is ... [H]e must, ... have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."

These comments have been approved by the High Court in Ngatayi v R[16], Kesavarajah v R[17] and Eastman v R[18].

In Eastman v R[19] a number of members of the High Court considered the content of the expression fitness to plead and its significance to the trial process.[20] Gaudron at [59] said:

"A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb (see Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444) or, more generally, because language difficulties make it impossible for him or her to make a defence (see R v Grant [1975] WAR 163; Ngatayi v R [1980] HCA 18; (1980) 147 CLR 1 at 9 per Gibbs, Mason and Wilson JJ; Begum (1985) 93 Cr App R 96). The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue."

"No doubt in deciding whether the accused may not be fit to plead or to stand trial, regard must be had to the relevant tests of fitness. As was pointed out by the majority in Kesavarajah v R (1994) 181 CLR 230 at 245; 123 ALR 463 at common law those tests were based on the explanation given by Alderson B to the jury in R v Pritchard [1836] EngR 540; (1836) 7 Car & P 303; 173 ER 135 and require the ability: (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge. (See also R v Presser [1958] VicRp 9; [1958] VR 45 at 48 per Smith J.) Properly understood, these tests may not be very difficult to meet."

Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one's inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment.

In Kesavarajah v R[21] at (245) Mason CJ, Toohey, and Gaudron JJ addressed the issue of whether a jury should be empanelled as follows:

"The question whether the accused is fit to be tried is a matter that can be raised by the prosecution as well as the accused. It may also be raised by the judge. Although s. 393 is not as specific as s. 631 of the Criminal Code (W.A.), which requires a jury to be empanelled for the determination of the issue 'if it appears to be uncertain, for any reason, whether [the accused] is capable of understanding the proceedings at the trial', it cannot be doubted that, in the context of s. 393, '[o]nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section.' Sometimes the test has been stated in terms of whether there is a reason to doubt the accused's fitness to stand trial. However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried."

Section 269J of the Criminal Law Consolidation Act addresses the issue in comparable terms:

" (1) If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant's mental fitness to stand trial.

(2) The court's power to order an investigation into the defendant's mental fitness to stand trial may be exercised -

(a) on the application of the prosecution or the defence; or

(b) if the judge considers an investigation necessary to prevent a possible miscarriage of justice - on the judge's own initiative."

Counsel for the DPP did not challenge the decision to empanel of the jury to consider Sexton's fitness to stand trial. The DPP both encouraged and consented to that course. The issues of whether there were reasonable grounds to suspect that Sexton was mentally unfit, or whether a real question as to incapacity had been raised, or whether there was reason to doubt the accused's fitness to stand trial did not attract explicit consideration.

Having reviewed the evidence before the jury, I am in no doubt that their verdict was correct. Sexton had the necessary understanding and comprehension to stand trial. That conclusion is well justified whether having regard to his condition both at the time of the application and as it was likely to be during the course of the trial. The problems occasioned by Sexton's ill health as presented to the jury was capable of being accommodated by adjournments from time to time and by the adoption of flexible sitting hours.

I consider that section 79 of the Judiciary Act operates and picks up the state law. The state law both through the common law and by statutory provision, regulates the mode of determination. It only does so insofar as that law is not inconsistent with the Constitution or other Commonwealth legislation.

A number of the provisions under the state statutory scheme appear to be in direct conflict with the Crimes Act. For example Section 20B of the Crimes Act provides that where in proceedings for the commitment of a person for trial a question of a person's fitness to be tried arises, the proceedings must be referred to the court where the trial will take place. Under section 269J(4) of the Criminal Law Consolidation Act provision is made for the referral of the issue of mental unfitness but leaving a discretion for the preliminary examination to be continued. The Criminal Law Consolidation Act allows the Court to try the objective elements of the offence before determining the issue of unfitness for trial. Such a course would not be open on the trial of a federal offence. Sections 269L, 269M and 269N would appear to be substantially inconsistent with the terms of section 20B of the Crimes Act.

I consider the tests for determining unfitness for trial are the same at common law as under section 269H of the Criminal Law Consolidation Act. Both tests provide that a person is fit to stand trial if he or she, in general terms, has sufficient understanding to comprehend the nature of the trial so as to make a proper defence to the charge. The question of whether a person is fit to stand trial may arise for reasons other than mental illness. It may arise for example because a person is deaf and dumb or more generally because language difficulties make it impossible for a defence to be made. When mental unfitness is properly raised[22], section 269B of the Criminal Law Consolidation Act requires the matter to be tried by judge and jury. An application of the common law leads to the same result[23].

There remains for consideration, the circumstance where a stay is sought on humanitarian grounds. The ill health of an accused may, in exceptional circumstances, raise humanitarian considerations, notwithstanding that the accused has a sufficient understanding of the nature of the trial process so as to be able to make a proper defence to the charge. When this occurs, the practice in South Australia is for the matter to be decided by a judge alone. Rules 8 and 9 of the Supreme Court Criminal Rules 1992 apply[24].

In my opinion the questions stated should be answered as follows:

(1) Was it correct that the application of the accused William Alfred Sexton that his trial be stayed or adjourned (and, if so, for how long) on the grounds of his ill-health be determined pursuant to Division 6 of the Crimes Act 1914 Cth?

(2) If the answer to Question (1) is "no" is the procedure to determine the application that which is usually adopted under Rules 8 or 9 of the Supreme Court Rules 1992 with the determination being made by the Trial Judge sitting alone.

The answer - If the trial judge concludes that there are reasonable grounds to suppose that the accused is mentally unfit to stand trial, then the matter is to be determined by a jury. If there are no reasonable grounds to suppose that the accused is mentally unfit to stand trial but other matters are raised in the inherent jurisdiction to stay the trial, the issue is to be determined by the trial judge alone according to the procedures applying under Rules 8 or 9 of the Supreme Court Criminal Rules.

1 [1999] SASC 511 at [35-36]

2 (1994) 181 CLR 230

3 [1999] SASC 511 at [42]

4 R v Sexton [2000] SASC 124

5 Eastman v R [2000] HCA 29; (2000) 172 ALR 39 at [59]

6 [1999] HCA 9; (1999) 73 ALJR 522

7 Kesavarajah v R (1994) 181 CLR 230 at 240-241 Polyukhovich v The Commonwealth [1990] HCA 40; (1990) 64 ALJR 589 at 589-590

8 (1994) 181 CLR 230

9 [1999] SASC 511

10 [2000] HCA 29; (2000) 172 ALR 39

11 [2000] HCA 29; (2000) 172 ALR 39

12 Kesavarajah v R (1994) 181 CLR 230 at 243

13 [1836] EngR 540; 173 ER 135

14 [1980] HCA 18; (1980-1981) 147 CLR 1

15 [1958] VicRp 9; [1958] VR 45

16 [1980] HCA 18; (1980-1981) 147 CLR 1

17 (1994) 181 CLR 230

18 [2000] HCA 29; (2000) 172 ALR 39

19 [2000] HCA 29; (2000) 172 ALR 39

20 Gleeson CJ [21-23]; Gaudron J [57-63], [86]; Gummow J [172]; Hayne J [296-298]; Callinan J [332-333].

21 (1994) 181 CLR 230

22 Kesavarajah v R (1994) 181 CLR 230 at 234 footnote (15)

23 Section 269J of the Criminal Law Consolidation Act 1935 (SA)

24 Kesavarajah v R (1994) 181 CLR 230 at 243

25 R v Dietrich [1992] HCA 57; (1992) 177 CLR 292; R v Hakim (1989) 41 A Crim R 372

[1999] SASC 511 at [35-36]

[2] (1994) 181 CLR 230

[3] [1999] SASC 511 at [42]

[4] R v Sexton [2000] SASC 124

[5] Eastman v R [2000] HCA 29; (2000) 172 ALR 39 at [59]

[6] [1999] HCA 9; (1999) 73 ALJR 522

[7] Kesavarajah v R (1994) 181 CLR 230 at 240-241 Polyukhovich v The Commonwealth [1990] HCA 40; (1990) 64 ALJR 589 at 589-590

[8] (1994) 181 CLR 230

[9] [1999] SASC 511

[10] [2000] HCA 29; (2000) 172 ALR 39

[11] [2000] HCA 29; (2000) 172 ALR 39

[12] Kesavarajah v R (1994) 181 CLR 230 at 243

[13] [1836] EngR 540; 173 ER 135

[14] [1980] HCA 18; (1980-1981) 147 CLR 1

[15] [1958] VicRp 9; [1958] VR 45

[16] [1980] HCA 18; (1980-1981) 147 CLR 1

[17] (1994) 181 CLR 230

[18] [2000] HCA 29; (2000) 172 ALR 39

[19] [2000] HCA 29; (2000) 172 ALR 39

[20] Gleeson CJ [21-23]; Gaudron J [57-63], [86]; Gummow J [172]; Hayne J [296-298]; Callinan J [332-333].

[21] (1994) 181 CLR 230

[22] Section 269J of the Criminal Law Consolidation Act 1935 (SA)

[23] Kesavarajah v R (1994) 181 CLR 230 at 243

[24] R v Dietrich [1992] HCA 57; (1992) 177 CLR 292; R v Hakim (1989) 41 A Crim R 372