The point at issue - does section 11 infringe the constitutional guarantee of trial by jury contained in s 80 of the Constitution?
22 Section 80 of the Constitution provides:
"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."
23 Although Mr Brewer and Mr Pickin of counsel appear for the accused in the trial, the constitutional argument on his behalf has been presented by Ms Sarah Pritchard and Ms Callan of counsel. Mr Bellew SC appeared on the constitutional argument in the interests of the Crown. The Solicitor-General, Mr Michael Sexton SC, appeared with Mr Mescher, intervening on behalf of the Attorney General of New South Wales.
24 Ms Pritchard acknowledged at the outset that the issue, which had arisen, was a novel one, and one, which had not been the subject of any authority. Ms Pritchard contended that the issue of fitness to plead was an essential feature of trial by jury with all that was connoted by that phrase in constitutional law and in the common law of England; that the common law had long recognised the determination by the jury as to the accused's fitness as a fundamental step in the trial process. Accordingly, s 11 of the Mental Health (Criminal Procedure) Act 1990, as amended, was incompatible with and offended the mandatory direction contained in s 80 of the Constitution.
25 The first limb of counsel's argument placed particular reliance on observations of the High Court in Cheatle v R (1993) 177 CLR 541. The first passage on which counsel relied is in the judgment of Gaudron, Gummow and Hayne JJ at 549.
"By the time of federation, the common law institution of trial by jury had been adopted in all the Australian colonies as the method of trial of serious criminal offences. The reference to 'trial by jury' in section 80 was to that common law institution. As Griffith CJ commented in R v Snow (1915) 20 CLR 315 at 323, section 80's requirement that the trial on indictment of any offence against any law of the Commonwealth shall be by jury represents a 'fundamental law of the Commonwealth' which 'ought prima facie be construed as an adoption of the institution of "trial by jury" with all that was connoted by that phrase in constitutional law and in the common law of England'."
Earlier, in Huddart Parker & Co Pty Limited v Moorehead (1909) 8 CLR 330 at 375, another of the original members of the Court, O'Connor J had sought to identify "the essential features" of the institution of trial by jury adopted by s 80:
It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process."
26 At 557 Gaudron, Gummow and Hayne JJ said:
"As has been seen it was recognised in this Court from an early stage that section 80's mandatory direction that 'a trial on indictment of any offence against any law of the Commonwealth shall be by jury' should be construed as prima facie encompassing 'the essential feature' of 'the institution of trial by jury with all that was connoted by that phrase in constitutional law and in the common law of England."
27 Counsel argued that the Court in Cheatle had reiterated the view of Griffith CJ in Snow that s 80 is "a fundamental law" that guarantees a trial by jury in the common law sense. Secondly, the Court had introduced a distinction between the "essential" and the "inessential" features of a trial by jury, with section 80 constitutionally entrenching the former from legislative impairment.
28 Ms Pritchard pointed to a passage in R v JS (2007) NSWCCA 272, where Spigelman CJ at 288 had recently described Cheatle as "the origin of contemporary jurisprudence on the interpretation of s 80 of the Constitution".
29 Ms Pritchard made brief reference to cases subsequent to Cheatle in which the constitutional ambit of s 80 had been examined. These included Brownlee v The Queen (2001) 207 CLR 278 where, at 298, Gaudron, Gummow and Hayne JJ had referred to the distinction between the essential and the inessential that had been drawn by Cheatle into the constitutional doctrine respecting s 80 of the constitution. In particular, Ms Pritchard, anticipating no doubt the arguments to be advanced by the Crown and the Attorney General, submitted that the distinction between essential and inessential, taken up in Brownlee and later cases, was not relevant to the present issue where trial by jury had been removed altogether from the context of a fitness hearing.
30 The major part of Ms Pritchard's submissions contained a thorough and carefully assembled analysis of the historical situation of "fitness to plead" at common law. This analysis involved compiling a selection of statements from decided cases, learned commentaries and, indeed, modern publications.
31 There is no need for me to refer to this analysis in detail. This is because there is no real dispute between the parties that Ms Pritchard is correct in the aspect of her submissions that suggests that, under the common law of England, the question of fitness was always one for a specially empanelled jury to determine.
32 It will be sufficient if I make brief reference to this analysis by mentioning first a passage from Sir Matthew Hale, The History of the Pleas of the Crown (1736). This passage was referred to by Gleeson CJ in Eastman v The Queen 203 CLR 1 at 13. The reference in Hale's History was to the case of a man who had committed a capital offence but later, before arraignment, "become absolutely mad". In such a case, the learned author said that the man should be remitted to prison "until that incapacity be removed". The reason is "because he cannot advisedly plead to the indictment".
33 In R v Pritchard (1836) 7 C & P 303 at 304 (173 ER at 135), Alderson B instructed the jury that the question was "whether the prisoner has sufficient understanding to comprehend the nature of this trial so as to make a proper defence to the charge".
34 A thorough description of the development of the common law notion of fitness to plead is to be found in Australian authority. In particular see R v Mailes (2001) 53 NSWLR 251 per Wood CJ at CL; and in R v Bradley (No 1) (1986) 40 NTR per Asche J at 7-8. The content of the issues to be determined during a fitness hearing are to be found, in more recent authority, in Presser v R [1958] VR 45 per Smith J at 483 and in Mailes.
35 For the practice in England see the 1826 edition of Blackstone's "Commentaries on the Laws of England", edited by Chitty, "especially volume 4, chapter 25 at 325" and Stephen's "A History of the Criminal Law of England" (1883) at 298.
36 Finally, in relation to this historical analysis, it is sufficient to note as Ms Pritchard points out in submissions, that various statutes in the United Kingdom and Australia have, from time to time, directed that the issue of fitness to plead be determined by a jury especially empanelled for that purpose, although in more recent times legislative changes in the Northern Territory and New South Wales have allocated the determination of the fitness issue to Judge alone. It seems clear that historically fitness to plead and to be tried has been a question for Judge and jury (Kesavarajah v The Queen (1994) 171 CLR 230 at 243), although the trend appears to be changing in modern times.
37 Finally, Ms Pritchard placed reliance upon a decision of the Alabama Supreme Court in Ex Parte LaFlore 445 SO 2d 932 (Ala) (1983). In that case the Alabama Supreme Court, in examining its own State Constitution, held that the common law had recognised the right to trial by jury to determine a person's sanity at the time of trial. The Court held:
"Thus both by the common law in Blackstone's time and through the later Act of Parliament, the question of whether an accused was competent to stand trial was for the jury. This right is preserved to the citizens of Alabama by section 11 of the Constitution of 1901."
38 Drawing together these various strands of argument, Ms Pritchard submitted that, when the Constitution was adopted in this country, an essential feature of a trial by jury was the determination by the jury of the accused's fitness to plead. Counsel submitted that the common law had long recognised determination by the jury of the accused's fitness as a fundamental step in the trial process. Accordingly, Ms Pritchard submitted that the mandatory direction in section 80 required that the issue of fitness be put before a jury, specially empanelled, to decide the issue. The requirement of a trial by Judge alone of the issue in s 11 contravened the constitutional guarantee.
39 Mr Sexton SC, on behalf of the Attorney General, argued, first, that s 11(1) of the State law concerns only the question of a person's unfitness to be tried for an offence and does not concern the determination of a person's guilt or innocence in respect of the offences with which he or she has been charged. Secondly, the Solicitor-General argued that the fitness issue is not "the trial on indictment" of any offence against any law of the Commonwealth, with the consequence that section 80 does not require the fitness issue to be determined by a jury.
40 In relation to this second point, the Solicitor-General submitted that, so long as the ultimate judgment of guilt or innocence in any case where there has been a trial on indictment is the product of the verdict of a jury, it cannot be said that s 80 has not been observed (R v Kim (1993) 65 A Crim R 278 and 283-284 per Zeeman J; R v JS supra at 86-92 per Spigelman CJ and at 167 per Mason P).
41 Further, senior counsel argued that the "trial", in the context of section 80, is the substantive determination of the guilt or innocence of the accused resulting in that conviction or acquittal - the trying of the cause: United States v Curtis (1826) 4 Mason 232; 25 F Cas 726.
42 In further support of his argument, Mr Sexton referred to various aspects of pre-trial procedure, or post conviction procedures, which are generally not to be determined by a jury, even though, loosely speaking, they might be thought to be part of the trial process.
43 In relation to the fitness issue, special reliance was placed on the remarks of Gaudron and Hayne JJ in Eastman v The Queen at pages 21 to 23; and 98 respectively.
44 Overall, the Solicitor-General accepted that historically fitness issues were determined by juries as at federation. He accepted also that such hearings arose either before or during trial without distinction, but argued that, although arising as a matter of necessity throughout the trial process, such issues were not, in essence, part of a trial on indictment. Consequently, it was submitted that s 80 placed no bar on the relevant provisions of the Judiciary Act picking up the subject State law and making it applicable to a Commonwealth prosecution in New South Wales.
45 Mr Bellew SC adopted and reinforced the submissions which had been made by the Solicitor-General. Senior counsel for the Crown accepted the historical position as advanced by Ms Pritchard but argued that this fact, namely that historically the issue of fitness had been determined by a jury, did not of itself lead to the conclusion that this was a constitutional requirement under s 80. There was a commonality of reliance as between the Crown and the Attorney General on the authorities that were said to be relevant to this question.
46 Essentially, Mr Bellew SC argued that the question as to whether the issue of fitness should be regarded as an essential feature of the process of trial by jury involved an examination and appreciation of the objectives of the process itself. Approaching the matter in that way, it was argued that s 11 gives rise to no impairment of the trial process and that, irrespective of the historical situation, the determination of fitness should not be regarded as an essential role or feature of that process. The primary function of a jury is thus the determination of guilt or innocence of the accused. A determination of fitness does not fall within the jury's constitutionally mandated function (Brownlee at 288 (21) per Gleeson CJ and McHugh J; 298 (54) and 302 (65) per Gaudron, Gummow and Hayne JJ).
47 The Crown argued that the fundamental focus of the process of trial by jury is the need to maintain the obligation of the prosecution to prove its case to the satisfaction of the jury beyond reasonable doubt by way of a procedure that is random, independent and properly representative (Brownlee at 288 (21) and 289 (22) per Gleeson CJ and McHugh J).
48 The Crown also made reference to a statement in R v Cheung (2001) 209 CLR 1 at 24 where, in the judgment of Gleeson CJ, Gummow and Hayne JJ, it was said:
"When an accused person is tried upon an indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment and by the plea."
49 By way of contrast the Crown argued that the fitness issue is not one defined by the terms of the indictment, nor is it capable of being defined by the terms of the plea. Moreover, categorising the determination of the fitness issue as a non-essential role or feature of the process by trial by jury produces, in fact, no impairment of the process at all. It has no bearing upon the primary function of the jury, nor any wider bearing on the process as a whole. If found to be unfit, the accused does not face a trial at all (Eastman v R supra per Hayne J at (98). The issue of unfitness falls outside the adversarial process of a criminal trial (R v Mailes per Spigelman CJ at 256 (14)).
50 Ms Pritchard made a number of submissions in reply and I shall mention those that require assessment in resolving the issues between the parties.