1 Following a County Court trial the appellant was convicted of raping a woman after she visited his residence for the purposes of receiving a massage. He was sentenced to six and a half years' imprisonment with a minimum term of four and a half years.

2 On 19 August 2011 I granted the appellant leave to appeal against conviction and sentence. At the hearing of the appeal on 22 September 2011, this Court ordered that, among other things, the appeal against conviction be allowed, the conviction be quashed and the sentence set aside and a re-trial ordered. What follows are my reasons for the Orders made.

3 The appellant's matter was first listed for a filing hearing on 6 March 2009. After various directions' hearings and a contested committal in August 2009, the matter was listed for trial in June 2010. However, due to the unavailability of a judge, the trial was adjourned to 7 March 2011.

4 The appellant's solicitor remained the same throughout these pre-trial proceedings and the trial, but counsel briefed to appear for the appellant changed a number of times. As a consequence, counsel who represented the appellant at trial was only briefed days before the trial and first met the appellant the day before the trial commenced.

5 Counsel, of significant experience at the bar, became immediately concerned about the appellant's fitness to plead, and in particular, communicate instructions. He raised the issue of the appellant's fitness to plead with the trial judge on the morning of the first day of trial and sought an adjournment to have the appellant assessed. The trial judge refused the application and ordered that the trial proceed.

6 However, during the trial, it became even more apparent to the appellant's legal team that the appellant may have been suffering from a mental illness. He was observed to be muttering and making odd gestures to the jury and himself. For this reason, the trial judge revoked his bail.

7 During the plea, a Forensicare pre-sentence psychiatric report was tendered indicating the appellant suffered paranoid schizophrenia and had been prescribed anti-psychotic medication.

8 On the application for leave to appeal, the appellant sought to admit fresh evidence by way of a psychiatric report and affidavits from the appellant's trial counsel and instructing solicitor for the purpose of establishing that the appellant was unfit to be tried. Counsel for the Crown did not seek to oppose the admission of the fresh evidence and leave was given to the applicant to furnish the new evidence on the application.

9 The appellant appeals against conviction on three grounds. First, that there was a miscarriage of justice as a consequence of the trial judge's refusal to adjourn his trial to enable a report to be obtained as to the appellant's mental state, including his fitness to stand trial. Second, the trial judge erred in admitting into evidence an email written by the applicant to the Office of Public Prosecutions and misdirected the jury by instructing them that they could rely on part of the email as admissions concerning elements of the charge of rape. Thirdly, that the trial miscarried because the trial judge made a comment to the jury during the course of his charge which conveyed to the jury that the judge did not consider there was substance in the appellant's defence. In view of my conclusions on the first ground, it is unnecessary to consider the merits of the second or third grounds.

10 I would allow the appeal on the first ground and order a re-trial. Firstly, on the basis that it was not reasonably open to the trial judge to exercise his discretion to refuse the application to adjourn; and secondly, because the refusal of the adjournment produced a miscarriage of justice, in the sense that there was a trial where there should not have been.[1] These two appeallable errors are interrelated, since it is likely that the trial judge's wrongful exercise of discretion goes some way toward demonstrating that the trial judge's decision to refuse the adjournment produced a miscarriage of justice.

11 Before turning to consider the trial judge's exercise of discretion, I pause to briefly restate in general terms the principles governing a defendant's fitness to plead or stand trial.[2]

12 Fitness to plead is a concept that derives from the common law, but is also regulated by legislative development of the concept,[3] such as sub-section 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('Crimes (Mental Impairment) Act'):

(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be -

(a) unable to understand the nature of the charge; or

(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or

(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

13 These criteria represent some of the 'minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice.'[4] Every person standing trial is presumed to be fit to stand trial.

14 Under the Crimes (Mental Impairment) Act, it is the responsibility of a specially empanelled jury to determine whether a defendant is fit to plead or stand trial.[5] However, before such a jury is empanelled, the Court must be satisfied that there is a question as to the defendant's fitness to plead or stand trial, according to the criteria under sub-section 6(1) of the Crimes (Mental Impairment) Act.[6] This question can be raised by either party to a proceeding, the judge or an independent person.[7] The question of fitness has been variously characterised as a 'real' question or a 'real and substantial' question or a 'serious question on the material before the court.'[8] If it is raised by the defence, the defence must rebut the presumption as to the defendant's fitness[9] on the balance of probabilities.[10]

15 The question of fitness is a material consideration not only during the pre-trial proceedings, but throughout the course of a trial.[11] The terms of section 6(1) of the Crimes (Mental Impairment) Act makes this clear,[12] as does the case law in which the question of fitness is relevant even though it may only be raised at the final stages of a trial.[13] In Eastman v The Queen, Gaudron J said: [14]

a question may arise as to an accused person's fitness to plead at any stage during the trial. Particularly is that so in a case involving mental illness.

16 The special consideration extended to mental illness may be due to the fluctuating effect such illness may have on an accused person's fitness to plead: while a person may be permanently impaired by a mental illness, the illness may only sporadically or episodically give rise to a question of fitness.[15]

17 In describing the significance of the question of the defendant's fitness, Gaudron J in Eastman v The Queen said:[16]

The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead there can be no trial. Certainly, that is the position where the issue of fitness to plead is raised before or during a trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, 'no proper trial has taken place [and the] trial is a nullity.' To put the matter another way, there is a fundamental failure in the trial process. The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum, 'the trial [is] a nullity', the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law.[17]

18 Despite potential differences between a fundamental flaw in the trial process and a miscarriage of justice, these concepts have been referred to interchangeably.[18] In dealing with the question as to an appellant's fitness to plead, Hayne J remarked in Eastman v The Queen: [19]

It is one which goes, not to the fairness of the trial, but to whether there could be a trial at all. The miscarriage of justice said to have occurred is that there has been a trial where there should not have been.

19 These principles are relevant to the present appeal, to the extent that they should have informed the trial judge's discretion to adjourn the trial at the time of the application, and demonstrate that the trial judge's refusal to adjourn the trial produced a miscarriage of justice, in the sense that there was a trial where there should not have been.

20 At the time of the appellant's application to adjourn, the refusal to adjourn was not reasonably open to the trial judge and demonstrated an exercise of discretion that bespoke appeallable error.

21 It is well established that the decision to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision.[20] An appellate court's review of such a discretion is governed by the principles in House v The King.[21] It is not for the reviewing or appellate court to consider whether it would have exercised the discretion to adjourn differently, but rather to consider whether the exercise of the discretion was wrong in law[22] or reasonably open to the judge below.

22 The guiding principles for exercising the discretion to refuse an adjournment are set out by Kaye J in Brimbank Automative Pty Ltd v Murphy:[23]

The guiding principle for the exercise of the discretion is that a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise. Thus, in Walker v Walker Simon P stated:

... Where the refusal of an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should only be refused if that is the only way that justice can be done to the other party ...[24]

23 It was not suggested that the grant of the adjournment would have occasioned irreparable prejudice to the Crown. The relevant question in this appeal was whether it was reasonably open for the trial judge to decide that refusing the appellant's application to adjourn would not result in a serious injustice to the appellant. In my respectful opinion, that question must be answered in the negative, given that it is a prospective question with a view to whether or not there was a risk,[25] likelihood[26] or threat[27] that an injustice would result from refusing the adjournment at the time of the application.

24 Although the question as to fitness usually rests upon some form of admissible evidence,[28] it may not be necessary to receive such evidence - even for the purposes of establishing that there was a real and substantial question as to fitness - leave alone to cause an adjournment of the trial to investigate such a question. In Eastman v The Queen, Callinan J cited without disapproval the English decision of R v Dashwood:[29]

Humphreys J in R v Dashwood did not seem to think that existence of the possibility of unfitness to plead even needed to be founded on admissible evidence. His Lordship said:

It does not matter whether the information comes to court from the defendant himself or his advisers or the prosecution or an independent person, such as, for instance, the medical officer of the prison where the defendant has been confined.[30]

25 Assertions from the bar table included submissions from highly experienced counsel: expressing serious concerns regarding the appellant's general ability to give instructions; relaying the professional opinion of the appellant's treating physician that it was prudent to arrange an assessment of the appellant's mental condition by a forensic psychiatrist before trial; and conveying general information that the appellant suffered from mental illness including schizophrenia and was prescribed anti-psychotic medication.

26 However, even though the trial judge did not doubt the veracity or sincerity of these assertions, he erroneously expected more substantial evidence before deciding to adjourn the trial to investigate the question as to fitness. His Honour remarked: [31]

Ultimately, the information placed before me was extremely vague, had no evidentiary foundation and was more in the manner of an application to adjourn to explore matters that could and should have been explored well before the matter coming before me.

27 Putting to one side the lateness in bringing the application,[32] to the extent that the absence of material supporting the assertions was important, his Honour could have obtained such material through a number of avenues. The trial judge could have required affidavits or viva voce evidence from the appellant's instructing solicitor - who had also spoken with the appellant's treating physician on the morning of the application and shared counsel's concerns about the appellant's fitness, or required the appellant's treating physician to testify on the appellant's history of mental illness and the professional view he had conveyed to counsel that

27 the appellant be assessed before trial.[33]

28 In McColl v Lehmann,[34] Kaye J dealt with an appeal from a Magistrate's refusal to adjourn proceedings against an applicant charged with a summary offence. Counsel for the applicant sought the adjournment for the purposes of obtaining evidence that might assist in presenting the applicant's defence. The appellant's fitness to plead or stand trial in this case was a distinct, logically antecedent and procedurally more important, question.[35] Especially after taking that distinction into account, the following remarks by Kaye J are particularly pertinent to these proceedings:[36]

... the refusal of the application for the adjournment prevented the applicant from seeking documentary evidence which his counsel anticipated might have been material to his defence, and his counsel was precluded from obtaining what he considered to be sufficient instructions to enable him to present properly the defence. There were, therefore, proper and adequate grounds upon which the Magistrate might have exercised his discretion, and by refusing the application he failed to exercise his discretion properly or at all. As a consequence there was a real risk that justice was denied to the applicant.

29 In light of the assertions from the bar table, and the options available to the trial judge to investigate them further, it was not reasonably open to his Honour to refuse an adjournment of the trial. At the time of the application, there was an appreciable likelihood that a real and substantial question about the appellant's fitness could arise: having the trial continue in such circumstances gave rise to a threatened miscarriage of justice or a fundamental flaw in the trial process.

30 The trial judge also justified the refusal to adjourn on the grounds of case management issues, including the appellant's tardiness in bringing the application and the practical outcomes caused by granting the adjournment.[37] With respect, these issues did not demonstrate that an adjournment would occasion irreparable prejudice to the Crown and did not warrant a refusal to adjourn.

31 A court must particularly in a criminal case, prioritise the considerations of justice over those of efficiency and case management in exercising its discretion to adjourn proceedings: it is not an opportunity to punish parties for delay or tardiness in raising a material issue. In Brimbank Automotive Pty Ltd v Murphy, Kaye J said:[38]

In determining whether to grant an adjournment, a court is entitled to take into account, as a relevant circumstance, the exigencies of case management. However, that consideration should not be permitted to prevail over the rights of the parties before the court, and in particular it should not predominate over the right of a particular party to be able to present its case properly to the court. The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties. The point was stated in authoritative terms in the joint judgment of Dawson J, Gaudron J and McHugh J in The State of Queensland & Anor v JL Holdings Pty Ltd, as follows:

In our view the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.

32 While the trial judge acknowledged these principles,[39] his Honour ruled as follows: [40]

... it is not open to suggest that the instructors have not been awake to these issues from at least that point in time ... [D]espite there being discussion between counsel for the accused and his instructors at the time of the committal, that that issue, the issue of fitness to be tried, ... was not raised with the court below, that is the Melbourne Magistrate's Court; nor was it raised with this court, the County Court, at any stage in the lengthy chronology that I will turn to shortly of the listing of this matter; nor, for that matter, has it been raised with the Crown until they heard it raised this morning in their presence. The chronology therefore assumes a level of importance in this case.

33 The relevant question before his Honour at the time of the application was whether the trial should be adjourned to investigate a question as to the appellant's fitness that had only just arisen. There was no indication that the appellant's mental health raised a question as to fitness during the pre-trial proceedings. Neither the appellant's legal team, the prosecution, nor the numerous judicial officers conducting the various pre-trial proceedings thought it necessary to raise the question at any earlier stage. The question as to the appellant's fitness may have only materialised immediately before the trial commenced because the appellant's mental health only became so impaired as to give rise to the question at that stage: this appears consistent with the evaluation in the pre-sentence Forensicare report that at around the time the trial commenced, the appellant may have been prescribed inadequate medication and may not have been fully compliant.[41] Given the question as to the appellant's current fitness, his Honour's preoccupation with the lateness with which it was raised was a distraction from the need to adjourn for the purpose of facilitating further investigation of the question.

34 It was also an unfortunate distraction that a potential mental impairment defence was raised in tandem with the question going to current fitness. It was plainly open to the trial judge to altogether reject the appellant's submissions that there may have been a mental impairment defence, given the considerable delay in raising it. While his Honour rightly commented that the two matters were separate,[42] the appellant conceded that intertwining the appellant's mental impairment with his fitness to plead, especially so late during the course of proceedings, may have distracted his Honour from focusing on the latter issue as the matter of priority.

35 The trial judge's attention during the adjournment application was also drawn to an email from the appellant to the Crown solicitor in September 2009 the subject of ground 2. The email was said to include possible admissions. Reliance on this email as evidence of the appellant's possible mental issues related to a period of time before any question about the appellant's fitness arose. This also served to conflate the issues regarding the appellant's long-standing, pre-trial, mental illness - that the appellant should have ideally investigated and agitated well before the time of the application - with the particular episode of that illness manifesting itself in a question as to fitness at the time of the application.

36 The trial judge's discretion to adjourn miscarried, given that it prevented investigation of the question as to the appellant's current fitness to stand trial. The principles of natural justice demanded that the adjournment be granted to avoid the risk of serious injustice to the appellant.

37 The events of the trial, the evidence on the plea and fresh evidence furnished before this Court together demonstrate there was in fact a real and substantial question as to the appellant's fitness to plead at the time of the trial. Accordingly, the refusal to adjourn the trial also bespeaks appeallable error because it produced a trial that was a nullity and a miscarriage of justice; there was a trial where there should not have been.

38 In Naidu v The Queen, Maxwell P, with Weinberg JA and Ross AJA agreeing, said:[43]

Although the ground of appeal challenges the judge's exercise of her discretion to refuse the adjournment, the question to be addressed in such circumstances is not whether the discretion miscarried but whether the decision arrived at was productive of a miscarriage of justice in the trial.

39 The present case concerns an appeal from a refusal to adjourn proceedings that progressed to their finality. It is questionable whether all the principles articulated by the President would be applicable to, for instance, an interlocutory appeal from a refusal to adjourn. In such circumstances, demonstrating the discretion to adjourn miscarried may be more apposite than an examination as to whether the refusal to adjourn produced a miscarriage of justice. Here, the refusal to adjourn the trial involved a wrongful exercise of the discretion for the reasons previously mentioned, and also resulted in a miscarriage of justice for the reasons that follow.

40 As Gaudron J set out in Eastman v The Queen, an appeal court considers the issue of an appellant's fitness from the vantage point of hindsight and with the potential benefit of fresh evidence:[44]

If after inquiry, it is determined that it cannot be said that the appropriate tribunal could not reasonably have found the appellant not fit to plead, the verdict must be set aside and an order made for a new trial at which, if there is still an issue as to his or her fitness to plead, it can be properly determined.

41 To put it another way, Hayne J in the same case said (with no emphasis added):[45]

... 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.

42 In my respectful opinion, in light of the assertions from the bar table at the time of the application, the appellant's behaviour during the trial, the evidence at the plea and the fresh evidence furnished during this appeal, there was a question as to the appellant's fitness at the time of the trial: the appellant may not have been fit to plead and stand trial. To put it another way, it cannot be said that a jury specially empanelled under the Crimes (Mental Impairment) Act could not reasonably have found the appellant not fit to plead. In view of the following evidential considerations, the refusal to adjourn resulted in a miscarriage of justice, in the sense that there was a trial where there should not have been.

43 First, a defendant's abnormal or eccentric behaviour during the course of a trial may give rise to a real and substantial question as to the defendant's fitness.[46] According to fresh evidence adduced on the appeal, during the trial it became apparent to certain members of the appellant's legal team that he was acting erratically. The appellant's behaviour included imitating the act of bringing down an imaginary gavel and placing his hands around his throat and smiling in the direction of the jury. The behaviour came to the attention of at least one juror and was also commented on by the trial judge.

44 Second, during the plea, a Forensicare pre-sentence report was tendered and evidence was lead from its author, a consultant psychiatrist. She indicated that at the commencement of the trial the appellant may not have been fully compliant with his prescribed medication and may have been prescribed a dosage that was not adequately controlling his illness. The same psychiatrist reported that within two days of the jury verdict, on 17 March 2011, a nurse at the Thomas Embling Hospital concluded that the appellant was psychotic and that this diagnosis was confirmed by the psychiatric registrar at the hospital the following day.

45 Third, the fresh evidence furnished by the appellant during the appeal process included a psychiatric report dated 14 August 2011. The author of the report, a consultant forensic psychiatrist, had examined the appellant on 31 July 2011 at the request of the appellant's counsel, and also been requested to consider whether the appellant was 'fit to stand trial and whether his behaviour during trial was associated with his mental health problems or would have been apparent to legal observers.' The author concluded:

At the time of the trial in March 2011, it appears that [the appellant] was in the throes of a relapse of psychosis. As noted by [the author of the pre-sentence Forensicare report], he was prescribed a sub-therapeutic dose of antipsychotic medication at the time. His described courtroom behaviour was in my opinion consistent with psychotic symptoms and this is in accord with his descriptions, for instance of experiencing auditory hallucinations and being distracted by these; and engaging in bizarre behaviour influenced by emerging psychotic symptoms. These are clearly documented by staff following remand into custody and were sufficient to require prompt transfer to Thomas Embling Hospital as a security patient under the Mental Health Act 1986.

I believe that at the time of the trial [the appellant] was experiencing distracting psychotic symptoms which would have rendered him unable to follow the course of the trial. In addition his capacity to instruct his legal representatives may have been impaired, although this is less certain. Nevertheless, at the time he was likely to have been unfit to be tried according to criteria set out in s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

46 Of course, it is now ultimately a question for this Court, and not for the author of this report or any other expert, to determine whether or not there was a real and substantial question as to the appellant's fitness to stand trial at the time of the trial.[47] However, for those purposes, I find the conclusions reached in this psychiatric evaluation to be persuasive that there was such a question.

47 I would add that apart from these evidential considerations, the aforementioned discussion regarding the erroneous exercise of the trial judge's discretion at the time of the application to adjourn also goes some way toward demonstrating that the refusal to adjourn produced a miscarriage of justice. So much is clear from the decision of Ashely JA in R v Dupas (No 3):[48]

In all, it appears that if an exercise of the discretion was shown to be infected by House v The King error, it would carry an applicant a long way in showing that a miscarriage of justice occurred - although the presence of the one might not mandate a conclusion that the other was present. On the other hand, absence of demonstrated error in the exercise of the discretion might not mean, as the trial unfolded, that the subject matter of the exercise of discretion had not caused a miscarriage. Yet again, if the exercise of the discretion was not shown to have been infected by error - this necessarily focusing upon the time of its exercise - it might tend to show, notwithstanding the different temporal viewpoints - the improbability that refusal to stay proceedings had in fact brought about a miscarriage.[49]

48 Accordingly, in addition to the trial judge's discretion miscarrying at the time of the application to adjourn, I am satisfied that in light of the fresh evidence and the case on appeal the decision to refuse an adjournment for the purposes of exploring the question as to the appellant's fitness produced a miscarriage of justice, in the sense that there was a trial where there should not have been.

49 As there is to be a retrial I would make only this observation about the email to the Crown solicitor in 2009. It is a matter for the trial judge as to whether the appellant's email was written at a time when the appellant's state of mind was such that it would be unfair to admit the email. Subject to that consideration, the probative value of the email is not in dispute.

50 I have had the benefit of reading in draft the reasons for judgment of Redlich JA. I joined in the orders made by the Court in this matter substantially for the reasons stated by his Honour.

51 The relevant issue on this appeal was whether, upon a review in hindsight, a miscarriage of justice had occurred.[50] On that issue the appeal in this matter had to be allowed for the reasons set out by Redlich JA in paragraphs 40 to 46 of his judgment.

52 In my view it is unnecessary to determine whether the judge's exercise of discretion to refuse the application for an adjournment which was made to him was erroneous, in the sense articulated in House v The King.[51]

53 On the one hand, what might be compendiously described as case management considerations could never justify a course which meant that a legitimate concern as to fitness to be tried was not pursued.

54 On the other hand, there were factors here which were relevant and which militated against acceding to the application which was made. The issue was raised before the Court for the first time on the morning of the trial, notwithstanding numerous prior appearances including a fully contested committal and prior trial dates (28 and 29 June 2010) when the matter had been not reached. This ought to have been relevant only insofar as it suggested that no earlier counsel or solicitors had apprehended a problem which warranted being raised with the Court. The application was for an indefinite adjournment; not, for example, to have the matter

stood down whilst urgent steps to compile evidence as to fitness for trial or to undertake even a preliminary psychiatric assessment of fitness for trial were taken. No evidence at all was called or tendered, or was sought to be called or tendered. This was a factor the trial judge obviously considered to be significant as he referred to it four times in his ruling.[52] Reliance was placed entirely on assertions from the bar table, some of which, on one view at least, were not consistent with an absence of fitness to be tried.[53] Finally, there is the statutory presumption of fitness to be tried.

55 But, in my view, all of this is beside the point. The only relevant issue on the appeal was whether a miscarriage of justice had occurred, on a hindsight review. In that respect the psychiatric evidence contained in the pre-sentence report and the fresh psychiatric evidence relied upon in the appeal were of paramount importance.

[1] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 105 [317] (Hayne J).

[2] The distinction between the two concepts was not pressed during submissions and the two terms were generally used interchangeably. While it may be technically inaccurate to do so, it is not uncommon for the two terms to be used interchangeably: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, 234 (Mason CJ, Toohey and Gaudron JJ); Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 97 [291] (Hayne J).

[3] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 21 [59] (Gaudron J).

[4] Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, 245 (Mason CJ, Toohey and Gaurdon JJ).

[5] See eg s 11 of the Crimes (Mental Impairment) Act. See also R v Khallouf [1981] VR 366, 365 (Young CJ, McInerney and Tadgell JJ).

[6] See eg s 9 of the Crimes (Mental Impairment) Act. See also R v Khallouf [1981] VR 366, 365 (Young CJ, McInerney and Tadgell JJ).

[7] R v Dashwood [1943] KB 1, 4 (Humphreys, Hilbery and Tucker JJ); Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 98 [296] (Hayne J).

[8] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 133 [400] (Callinan J) (citations omitted).

[9] See eg s 8(4) of the Crimes (Mental Impairment) Act.

[10] Ross on Crime (3rd ed 2007) [6.1115].

[11] See eg Hale, The History of the Pleas of the Crown (1736) Vol 1, 34-35 cited in Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 Ftn 83.

[12] Although the issue is not entirely free from doubt, there is authority to suggest that an evaluation of an accused person's fitness should be made with a view to his or her prospective fitness during the expected course of a trial: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, 246 (Mason CJ, Toohey and Gaudron JJ); contra 249 (Deane and Dawson JJ).

[13] Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, 247 (Mason CJ, Toohey and Gaudron JJ), 249-250 (Deane and Dawson JJ).

[14] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 13 [22] (Gleeson CJ), 21 [60] (Gaudron J).

[15] See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 14-15 [24]-26], 16-17 [40], 18 [48] (Gleeson CJ).

[16] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 21 [62]-[63] (Gaudron J) (citations omitted).

[17] See also R v NCT (2009) 26 VR 247, 250- 51 [11]-[12] (Nettle JA, with Neave JA and Lasry AJA agreeing).

[18] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 67 [204], 69 [211], 96 [286] (Kirby J); see also 91 [272] and the references cited therein (Kirby J).

[20] Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395 (Wilson J, with Gibbs CJ, Murphy, Aickin and Brennan JJ agreeing).

[21] [1936] HCA 40; (1936) 55 CLR 499. See El Hajje v Chief Executive Officer of Customs [2003] VSCA 217, [14] (Buchanan JA, with Phillips and Batt JJA agreeing).

[22] DPP v Easwaralingam [2010] VSC 437 [9] (Pagone J).

[23] [2009] VSC 26, [12].

[24] See also McColl v Lehmann [1987] VicRp 46; [1987] VR 503, 506 (Kaye (William) J); Naidu v The Queen [2011] VSCA 14, [29] (Maxwell P, with Weinberg JA and Ross AJA agreeing).

[25] McColl v Lehmann [1987] VicRp 46; [1987] VR 503, 510 (Kaye J).

[26] See eg Dietreich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 311 (Mason CJ and McHugh J).

[27] McColl v Lehmann [1987] VicRp 46; [1987] VR 503, 506 (citations omitted); see also Naidu v The Queen [2011] VSCA 14, [29] (Maxwell P, with Weinberg JA and Ross AJA agreeing).

[28] See eg R v Khallouf [1981] VicRp 38; (1981) VR 360, 363-364 (Young CJ, McInerney and Tadgell JJ); See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

[29] [1943] KB 1 (Humphreys, Hilbery and Tucker JJ).

[30] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 133 [403]- 404].

[31] Director of Public Prosecutions v SM (Unreported, County Court of Victoria, Judge Tinney, 25 May 2011) [20].

[33] There may have also been options to explore the effect of the appellant's mental health on the proceedings more expediently than the trial judge anticipated. Pilot programs, such as the Mental Health Practitioner, may assist judges in the County Court on questions of the mental health of participants in legal proceedings. The Practitioner is not entitled to make an assessment of a defendant's fitness to plead or provide a provisional diagnosis as to mental illness, however, he or she may assist a County Court Judge for the purposes of accessing psychiatric treatment records and preliminary mental health assessments to determine if a person before the court has mental health needs. See eg County Court of Victoria Annual Report: 2008-2009 2, 5, 6, 8, 18; Department of Justice Justice Mental Health Strategy (January 2010) 35.

[34] [1987] VicRp 46; [1987] VR 503.

[35] See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 98 [294] (Hayne J).

[36] McColl v Lehmann [1987] VicRp 46; [1987] VR 503, 510.

[37] Director of Public Prosecutions v SM (Unreported, County Court of Victoria, Judge Tinney, 25 May 2011) [20].

[38] [2009] VSC 26, [12] (citations omitted).

[39] Director of Public Prosecutions v SM (Unreported, County Court of Victoria, Judge Tinney, 25 May 2011) [20].

[40] Transcript of Proceedings, Director of Public Prosecutions v SM (County Court of Victoria, CR-09-01484, Judge Tinney, 7 March 2011) 26-27.

[41] See eg Director of Public Prosecutions v SM (Unreported, County Court of Victoria, Judge Tinney, 25 May 2011) [23], [24].

[42] Transcript of Proceedings, Director of Public Prosecutions v SM (County Court of Victoria, CR-09-01484, Judge Tinney, 7 March 2011) 26-27.

[43] [2011] VSCA 14, [19].

[44] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 28 [88] (Gaudron J); see also 98 [295] (Hayne J).

[46] R v Khallouf [1981] VR 366, 364-365 (Young CJ, McInerney and Tadgell JJ); Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 99 [296] (Hayne J).

[47] R v Khallouf [1981] VicRp 38; (1981) VR 360, 364 (Young CJ, McInerney and Tadgell JJ).

[48] [2009] VSCA 202, [157].

[49] See also R v Naidu [2011] VSCA 14, [21] (Maxwell P, with Weinberg JA and Ross AJA agreeing).

[50] Naidu v The Queen [2011] VSCA 14, [19] and Eastman v The Queen [2000] HCA 29; [2000] 203 CLR 1, 106; and in analogous contexts: R v Vjestica [2008] VSCA 47; [2008] 182 A Crim R 350, 353-354; R v Ferguson (2000) 24 VR 531, 581; The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592, 606.

[51] [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[52] Transcript of Proceedings, Director of Public Prosecutions v SM (County Court of Victoria, CR-09-01484, Judge Tinney, 7 March 2011) 30, 31, 32, 33.

[53] The Crown in its submissions referred to the applicant's counsel's agreement before the trial judge that the issue was consent and the applicant could give instructions on that, that the applicant understood the nature of the charge, that the applicant could exercise his right to challenge jurors, that the applicant could understand the evidence, and that counsel could get instructions though counsel maintained the instructions were not satisfactory.