Court of Appeal (Vic)|2013-11-28|Before: Ms P, Osborn J, Bell J, Maxwell P

S M v The Queen [2013] VSCA 342 (28 November 2013)

CRIMINAL LAW - Trial - Procedure - Special hearing - Mental impairment - Accused unfit to stand trial - Defence of mental impairment raised - Whether in special hearing judge alone can decide if defence made out - Empanelment of jury required - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Parts 2, 3 and 4.

PRACTICE AND PROCEDURE - Question of law reserved - Case stated - Criminal law - Special hearing - Mental impairment - Accused unfit to stand trial - Defence of mental impairment raised - Whether in special hearing judge alone can decide if defence made out - Empanelment of jury required - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Parts 2, 3 and 4 - Criminal Procedure Act 2009 (Vic) ss 302, 305.

1 This proceeding comes before the Court by way of the case stated procedure under pt 6.3 div 5 of the Criminal Procedure Act 2009 (Vic). It raises an important question of criminal procedure, which arises where an accused has been found to be unfit to stand trial and where it is agreed between prosecution and defence that the defence of mental impairment is available in relation to the offence charged.

2 The consequence of a jury finding that an accused is not fit to stand trial (and a finding by the judge that the accused is not likely to become fit within the next 12 months) is that the proceeding must be conducted as a 'special hearing' under pt 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the 'CMI Act'). Part 4 of the CMI Act deals with the defence of mental impairment and makes provision, under s 21(4), for a trial judge ― rather than a jury ― to decide whether the defence is established, in circumstances where both prosecution and defence agree that it is. (I will refer to this as the 'judge-alone procedure'.)

3 The question for consideration is whether the judge-alone procedure is available in a special hearing, as distinct from a trial. There has been a divergence of views on that question in the Trial Division of this Court. In a 2008 decision, Osborn J held that the procedure was available in a special hearing.[1] Earlier this year, Bell J came to the opposite conclusion.[2]

4 It was this division of opinion which prompted the judge in the present case to reserve the following question of law under s 302 of the Criminal Procedure Act 2009 (Vic):

Whether pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, following a jury determination that the accused is unfit to stand trial and where the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may, if satisfied that the evidence establishes the defence of mental impairment, direct that a verdict of not guilty because of mental impairment be recorded or whether it is necessary to empanel a jury to determine the verdict at a special hearing.

If I may say so respectfully, this is a very good example of the case stated procedure being used as Parliament intended it should be.

5 For reasons which follow, I have concluded that the question should be answered in the affirmative. That is, on its proper construction, the CMI Act discloses an intention that the procedure under s 21(4) be available in a special hearing, in the circumstances specified in the subsection.

6 SM[4] is charged on indictment with committing an indecent act with, or in the presence of, a child under 16, contrary to s 47 of the Crimes Act 1958 (Vic). SM was 15 years' old at the time of the alleged offending. She is now 17. The complainant was five years' old at the relevant time, and is now seven.

7 Under s 7(3) of the CMI Act, the question of a person's fitness to stand trial is a question of fact to be determined (on the balance of probabilities) 'by a jury empanelled for that purpose'. On 3 September 2013, a jury was empanelled for the purpose of determining whether SM was fit to stand trial. Evidence was adduced that Dr Teresa Flower, consultant psychiatrist, and Dr Adam Deacon, consultant psychiatrist at Forensicare, were both of the opinion that SM was unfit to stand trial when considered against the criteria specified by s 6 of the CMI Act.[5] The undisputed evidence was that SM has an IQ of 43 and therefore has a moderate to severe intellectual disability.

8 The jury found that SM was not fit to stand trial. Pursuant to s 11(4)(a) of the CMI Act, the judge then found, by reference to the uncontested evidence and on the balance of probabilities, that SM would not become fit to stand trial within the next 12 months. That finding having been made, s 12(5) of the CMI Act required the Court to proceed to hold a special hearing under pt 3 of the Act within three months.

9 On the basis of further reports from Dr Flower and Dr Deacon, the prosecution and the defence are in agreement that the evidence which the experts would respectively give establishes that SM was mentally impaired at the time of the alleged offending. In other words, the parties agree that 'the proposed evidence establishes the defence of mental impairment', as contemplated by s 21(4) of the CMI Act. As already noted, the question for determination is whether the procedure provided for by that subsection is available in the special hearing which the Court must now conduct.

10 As will already be apparent, this question arises because of the intersection in a case such as this of two separate aspects of the CMI Act, concerned respectively with unfitness to stand trial (pts 2 and 3) and the defence of mental impairment (pt 4). The key distinction between the two sets of provisions concerns the time to which the relevant investigation is directed. The question of fitness to stand trial is, of course, to be determined as at the date of the proposed trial. The defence of mental impairment, by contrast, concerns the time of the alleged offence.

20 Defence of mental impairment

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that -

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.[6]

12 As counsel acknowledged in argument, the timing difference means that three possible situations may be imagined, as follows:

(a) the accused is unfit to stand trial but was not mentally impaired at the time of the conduct constituting the alleged offence;

(b) the accused is fit to stand trial but was suffering from a mental impairment at the time of the conduct in question; or

In a case such as the present, where the accused has a significant intellectual disability, the same mental impairment typically requires consideration for both purposes and will typically mean that - as here - the case falls into the third of these categories.

13 The question of fitness to stand trial is to be determined in accordance with s 6 of the CMI Act, which provides as follows:

6 When is a person unfit to stand trial?

(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.

(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.

14 In the present case, this Court was told, both experts concluded that SM was unfit in each of the respects identified in paragraphs (a)-(f) of s 6(1). That is, her unfitness to stand trial was constituted in part by, but was not limited to, her inability to give instructions to her legal practitioner. As will appear, this is an aspect of unfitness to stand trial which was viewed by Bell J as being of particular significance to the question presently under consideration.[7]

15 A special hearing, unlike a trial, is wholly a creature of statute. The nature and purpose of such a hearing, and the procedure to be followed, are spelt out in pt 3 of the CMI Act. It is necessary to set out the relevant provisions at some length.

15 Purpose of special hearings

The purpose of a special hearing is to determine whether, on the evidence available, the accused -

(a) is not guilty of the offence; or

(b) is not guilty of the offence because of mental impairment; or

(c) committed the offence charged or an offence available as an alternative.

16 Procedure at special hearings

(1) A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

(2) Without limiting subsection (2), at a special hearing -

(a) the accused must be taken to have pleaded not guilty to the offence; and

(b) the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;

(c) the accused may raise any defence that could be raised if the special hearing were a criminal trial, including the defence of mental impairment;

(d) the rules of evidence apply;

(e) section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused) applies as if the special hearing were a criminal trial;

(f) any alternative verdict that would be available if the special hearing were a criminal trial is available to the jury.

(3) At the commencement of a special hearing, the judge must explain to the jury -

(a) that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and

(b) the meaning of being unfit to stand trial; and

(c) the purpose of the special hearing; and

(d) the findings that are available; and

(e) the standard of proof required for those findings.

17 Findings at special hearings

(1) The following findings are available to the jury at a special hearing -

(a) not guilty of the offence charged;

(b) not guilty of the offence because of mental impairment;

(c) the accused committed the offence charged or an offence available as an alternative.

(2) To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative.

18 Effect of findings

(1) If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial.

(2) A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.

Note

Section 24AA provides for appeals against a verdict of not guilty because of mental impairment.

(3) A finding under section 17(1)(c) -

(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and

(b) constitutes a bar to further prosecution in respect of the same circumstances; and

(c) is subject to appeal in the same manner as if the person had been convicted of the offence in a criminal trial.

(4) If a jury makes a finding under section 17(1)(c), the judge must -

(a) declare that the person is liable to supervision under Part 5; or

(b) order the person to be released unconditionally.

16 It is likewise necessary to set out in full ss 21 and 22 of the Act, which deal with the defence of mental impairment.

21 Presumptions, standard of proof, etc.

(1) A person is presumed not to have been suffering from a mental impairment having the effect referred to in section 20(1) until the contrary is proved.

(2) The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1) -

(a) is a question of fact; and

(b) subject to subsection (4), is to be determined by a jury on the balance of probabilities.

(3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.

(4) If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and -

(a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or

(b) if the trial judge is not so satisfied, must direct that the person be tried by a jury.

22 When may the question of mental impairment be raised?

(1) The question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution.

(2) If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled -

(a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and

(b) if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.

(3) An accused must not be discharged in a committal proceeding only because the defence of mental impairment has been raised.

17 As is made clear by ss 16(2)(c) and 17(1)(b), an accused who is unfit to stand trial may raise the defence of mental impairment at the special hearing. One of the findings available to the jury at a special hearing is a finding that the accused is not guilty of the offence because of mental impairment. It was, accordingly, common ground in this proceeding that some at least of the provisions of pt 4, dealing with the defence, must be incorporated by reference into pt 3, in order to provide the necessary machinery to enable that question to be decided at the special hearing. The debate between the parties concerned whether s 21(4) was, or was not, one of the provisions thus incorporated.

18 According to the submission for the Director, the relevant provisions demonstrated that the judge-alone procedure was not intended to be available at a special hearing. There were two parts of the submission, the first being that adjudication at a special hearing was a task committed by s 17(1) exclusively to a jury; the second was that, in any event, the language of s 21(4) made unambiguously clear that the procedure was to be available only at a trial properly so-called, not at a special hearing.

19 As to the first argument, it was pointed out that s 17 deals exhaustively with the findings available at a special hearing. Three are specified, one of which is a finding of not guilty because of mental impairment. In each case, the finding can only be made by a jury. There is no suggestion of the judge being authorised to make any such finding.

20 In support of the second argument, counsel for the Director drew attention to the repeated references in s 21(4) to the 'trial judge' and, in particular, to the language of s 21(4)(b), which provides that if the trial judge is not satisfied that the defence of mental impairment is made out, the judge 'must direct that the person be tried by a jury'. This language demonstrates, so it is said, that the procedure could not apply to a special hearing since ex-hypothesi the accused is not fit to be 'tried by a jury', that being the very reason a special hearing is being held.

21 Were the statutory construction question confined to a consideration of the language of ss 17(1) and 21(4), I consider that there would be no answer to these arguments. Standing alone, the language of the subsections is intractable. I would reject the argument of counsel for SM that it is open to the Court, on ordinary principles of interpretation, to read into s 21(4) the additional words which would be needed in order to make the provision applicable to a special hearing.

22 It is quite clear - and counsel for SM did not dispute this - that a special hearing is not a trial. So much is apparent from the language of s 16(1), which requires that a special hearing be conducted 'as nearly as possible as if it were a criminal trial'. (There are similar references in s 16(2)(c), (e) and (f).) When s 21(4)(b) refers to the person being 'tried by a jury', it means what is says. And, plainly enough, Parliament cannot have intended that a judge conducting a special hearing, itself necessitated by the accused's inability to stand trial, could be obliged (if not satisfied about the defence of mental impairment) to direct that the accused 'be tried by a jury'.

23 Of necessity, however, the interpretive task which the Court must undertake is not confined to an examination of the language of the subsections in isolation. On the contrary, the Court is obliged to interpret each provision in the context of the legislation as a whole. In the present case, there is a particular - and quite unusual - provision which I consider shows that the strictures which the literal language of s 21(4) imposes were not intended to prevent the procedure being used in a special hearing.

24 I refer to s 16(1), the relevant part of which provides:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial ...[8]

Self-evidently, this is a legislative command expressed in very strong terms. The judge conducting a special hearing must strive to ensure that the conduct of the hearing bears the closest possible resemblance to the conduct of a criminal trial.

25 The imperative force of the words 'as nearly as possible' is illustrated by what the High Court said in relation to the same phrase as it appears in s 64 of the Judiciary Act 1903 (Cth), which provides:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

In Commonwealth v Evans Deakin Industries Ltd,[9] the High Court said (referring to the Court's previous decision in Maguire v Simpson[10]):

That case establishes that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory and otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. That result seems entirely just; the Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject.[11]

26 Adapting that language to this different statutory context, it follows, in my view, that all procedures which are applicable to a criminal trial must be treated as applicable to a special hearing 'except where it is not possible' for a procedure to be so applied. In this context, I consider, such 'impossibility' would only arise if the trial procedure in question were irreconcilable with an express provision of pt 3 or would otherwise be repugnant to the distinctive character and purpose of a special hearing as defined by pt 3.

27 The language of s 16(1) reveals, in my view, a clear legislative intention that the provisions of legislation enacted to govern trials - such as the Crimes (Criminal Trials) Act 1999 (Vic) and the Criminal Procedure Act 2009 (Vic) - are to be applied 'as nearly as possible' to a special hearing. Plainly, procedural provisions in legislation of that kind will be expressed - as s 21(4) is expressed - in language applicable to a criminal trial, and not to a special hearing. But the effect of the 'as nearly as possible' command in s 16(1) is that those procedures are to be treated as applicable to a special hearing, with whatever necessary adaptation or modification is required for that purpose.[12]

28 On this analysis, there is no difficulty in regarding the judge-alone procedure as available in a special hearing. The language of the subsection is readily adapted to that end. The only change which would be necessary is in the reading of s 21(4)(b). It would mean, in the context of a special hearing, that if the judge were not satisfied that the evidence established the defence of mental impairment, the judge would be obliged to proceed with the special hearing, and empanel a jury for the purpose of deciding the remaining questions under s 17(1), namely, whether the guilt of the accused was established or not. Plainly, there would be no procedural difficulty with that course.

29 It is said, however, that this result would be incompatible with the nature of a special hearing, at least in cases where the unfitness of the accused to stand trial was constituted, in whole or part, by the accused's inability to give instructions to his/her counsel. It was this which prompted Bell J in Watson to say:

[I]t is a very serious thing to conclude that counsel can exercise decisionmaking capacity on behalf of an accused without instructions, especially where the consequence would be that the accused would thereby lose the opportunity to test the prosecution case and obtain an acquittal. As I saw it, such an interpretation had to be made unmistakably clear by express words or necessary implication. The terms of s 24(1) did not seem to me to be unmistakably clear. The terms of s 24(1) are general and to be contrasted (for example) with the terms of s 16(2)(b), which expressly authorises the legal representative of the accused to exercise the rights of challenge of an accused in the selection of a jury in a hearing under pt 3.[13]

30 Counsel for SM addressed this issue in two ways. First, it was pointed out that inability to give instructions was only one of the enumerated indicia of the unfitness to plead. Whether an accused found to be unfit was, or was not, able to give instructions would vary from case to case. It followed that an inability to give instructions was not to be seen as a defining characteristic of a special hearing, and the question of the applicability of s 21(4) should not therefore be determined on the assumption that the accused would always lack that ability.

31 Secondly, it was submitted, the responsibility of counsel acting for a person who has been found - on whatever basis - to be unfit to stand trial is a particularly weighty one. The Court should proceed on the assumption that counsel who find themselves in that position take that responsibility very seriously. In particular, counsel would not give consent on behalf of their client to the judge-alone procedure unless it was perfectly clear that there was no defence to the charge on the merits and, likewise, that the medical evidence was unequivocal about the availability of the defence.

32 In my opinion, these submissions should be upheld. There is, in my opinion, no reason to doubt that a decision by counsel for an accused in such circumstances, to opt for the judge-alone procedure, will be made conscientiously and carefully and will, to the greatest extent possible, be based on consultation with the accused (and the accused's family and/or advisors). It should also be emphasised that a decision to opt for this procedure does not involve the accused 'losing the opportunity to test the prosecution case and obtain an acquittal'. As I have said, no counsel acting properly could agree to the judge-alone procedure without first being satisfied that there was no reasonable possibility of acquittal.

33 My conclusion regarding the construction of the provisions is reinforced by the legislative history, to which I now turn.

34 When the CMI Act was first enacted, it did not contain s 21(4) (or the qualification in s 21(2)). In its original form, s 21(2) provided simply that the question whether a person was suffering from a mental impairment at the time of the alleged conduct was 'to be determined by a jury'. There was no exception allowing for a judge-alone determination. In this respect, s 21(2) mirrored s 7(3)(b) (in relation to fitness to stand trial).

35 The enactment of s 21(4) was effected by the Crimes (Homicide) Act 2005 (Vic). The Parliament adopted a recommendation of the Victorian Law Reform Commission, in its final Report on 'Defences to Homicide'.[14] The relevant part of the Commission's Report, which was helpfully provided to the Court by counsel for the Director, concluded that it was unnecessary to empanel a jury in order to decide the question of mental impairment in a case where there was no dispute between the parties or the experts. The Commission's view was that:

Such a process only highlights the perfunctory nature of the process and adds to the perception that the role of the jury in such hearings is ceremonial only.[15]

36 At the same time, in the Commission's view, there was a need for the evidence to be heard, and the decision made, in open court, but this could be met by having a hearing before a judge alone. The Commission said:

If the evidence supported a verdict of not guilty by reason of mental impairment, allowing the expert evidence to be heard before a jury is empanelled would allow it to be heard in an open court, and would allow the judge to determine that a jury trial was unnecessary because the court would accept the plea of not guilty by making a finding that the accused is not guilty of the offence because of mental impairment. If at any time the judge determined the matter would be more appropriately dealt with by a jury, he or she would be able to direct that the issue be dealt with by a jury.

Procedurally, this could happen by way of a hearing on the expert evidence

once a plea of not guilty by reason of mental impairment has been entered by the accused and the decision to go to trial has been made. Where the prosecution and the defence agree that the accused should be found not guilty by reason of mental impairment, a judge could hear the expert evidence in support of this finding. If the judge was satisfied, on the basis of this evidence, that it would not be possible for a jury to find the accused guilty of murder, then the judge would make a finding that the person is not guilty on the grounds of mental impairment and the disposition of the accused could then be determined without the need to empanel a jury. As would be the case for a jury trial, the hearing could be held in open court. In cases where the issue of mental impairment arises after the jury is empanelled and the trial has begun, the jury would determine the issue of whether the accused was mentally impaired.[16]

37 Plainly enough, the Commission's Report - and the Bill which followed - were concerned with, and only with, criminal trials and the availability of the defence of mental impairment in a criminal trial setting. There was no occasion for the Commission to consider whether the procedure which it was recommending would be suitable for a special hearing concerning a person who was unfit to stand trial.

38 The new sub-s 21(4) was inserted into pt 4 of the CMI Act, which likewise deals only with criminal trials. Hence the reference in s 22(1) to the raising of the question of mental impairment 'at any time during a trial by the defence, or, with the leave of the trial judge, by the prosecution'.[17] Thus understood, s 21(4) is a procedural provision intended to govern criminal trials. It has the same character as other procedures enacted for, and only for, criminal trials. As explained earlier, however, it is provisions of that character which the judge conducting a special hearing is required - in accordance with s 16(1) - to apply 'as nearly as possible' to the special hearing.

39 I have had the considerable advantage, in this case, of reading in draft the reasons for judgment prepared by the President and by Tate JA. Regrettably, their

Honours are unable to agree upon the outcome of this proceeding. The President has concluded that a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the 'CMI Act') is capable of being conducted before a judge alone. Tate JA has arrived at the opposite conclusion.

40 It therefore falls to me, at least practically speaking, to resolve this issue.

General principles of statutory interpretation

41 Questions of statutory interpretation abound in modern litigation, and often give rise to difficulty. Yet there is usually a clear path to resolution once the High Court's strictures as to how to perform the interpretative task are followed.

42 Writing extra-judicially, the former Chief Justice of New South Wales, the Honourable James Spigelman, described statutory interpretation as a 'constant wrestle with text and context',[18] adding that the application of the principles of statutory interpretation is always a 'matter of emphasis and nuance'.[19]

43 Chief Justice Spigelman analysed recent High Court authority on statutory interpretation as the theme for his paper. He concluded that throughout the period from about 1987 until the end of the 1990s,[20] the High Court had increasingly adopted a 'contextual' or 'purposive' approach to statutory interpretation. This contrasted with the narrowly based 'strict literalism' that had once prevailed. He referred, in particular, to two decisions of the Court, CIC Insurance Ltd v Bankstown Football Club Ltd[21] and Project Blue Sky Inc v Australian Broadcasting Authority[22] which he saw as exemplifying that purposive approach.

44 Plainly, Chief Justice Spigelman was attracted to this broader, more flexible method of statutory interpretation. He cited, with apparent approval, the following well known observation by Judge Learned Hand:

Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, sources of interpreting the meaning of any writing; be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.[23]

45 The former Chief Justice even permitted himself what he described as 'the indulgence of self-quotation', repeating his earlier observation that 'the courts no longer approach a statute with scissors in one hand and a dictionary in the other'.[24] No doubt, he would be receptive to a recent comment by Judge Richard Posner who, in one of the latest of his many books, said:

Interpretation is a natural mental activity. It is also ubiquitous. It is not improved by rules of interpretation. Literature professors and literary critics address daunting problems of interpretation in classics of literary modernism without the benefit of canons of construction. Does anyone think they are worse at interpreting difficult texts than judges are?[25]

46 The point of Chief Justice Spigelman's paper was to consider whether there had been a shift, in recent years, within the High Court, towards a narrower and more strict literalism, in dealing with statutory interpretation.

47 The view that the Court had moved in that direction seems to have been espoused by Kirby J who, in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council[26] observed, in relation to the views of the majority in that case:

I see ... hints of a return to the literal interpretation of legislation which this court has (in my view rightly) earlier discarded ... I would resist any return to that earlier narrowing of the judicial focus.[27]

48 Yet, as Chief Justice Spigelman noted, Kirby J's lament may perhaps have been an overstatement. Even his Honour, with his characteristically assertive views on all manner of subjects, fully recognised that the task of statutory interpretation sometimes compelled a result that was unattractive, and possibly difficult to reconcile with the clear legislative purpose underlying the Act under consideration.

49 Nonetheless, it is true that the High Court, in a number of recent judgments, appears to have given greater primacy to the actual language used in the text than to contextual matters.[28]

50 Perhaps the clearest example of this 'reversion to text' is to be found in a short passage in the joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory).[29] There it was said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[30]

51 In Baini v The Queen[31] the High Court made essentially the same point. It reiterated what had earlier been said in Fleming v The Queen[32] to the effect that:

'[t]he fundamental point is that close attention must be paid to the language' of the relevant provision because '[t]here is no substitute for giving attention to the precise terms' in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute.[33]

52 More recently still, in Certain Lloyd's Underwriters v Cross[34] French CJ and Hayne J said of what is generally described as the 'purposive approach':

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. [Emphasis added.] And as the plurality went on to say in Project Blue Sky:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

To similar effect, the majority in Lacey said:

Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.[35]

A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. [Emphasis added.]

And as the plurality said in Australian Education Union v Department of Education and Children's Services:

In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.[36]

54 In Lee v New South Wales Crimes Commission,[37] French CJ said of the process of statutory interpretation:

What Mason CJ said in Hamilton concerning 'a clear legislative intention' should be understood today in light of the court's consideration of the concept of legislative intention in Project Blue Sky Inc v Australian Broadcasting Authority and, more recently, in Lacey v Attorney-General (Qld). In Project Blue Sky the majority framed the object of statutory interpretation as 'giv[ing] the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. One of the canons of construction identified by the majority was the principle of legality. In Lacey the court held that the ascertainment of legislative intention does not involve discovery of an objective, collective mental state but is asserted as a statement of compliance with the applicable principles of construction, both common law and statutory, which are known to parliamentary drafters and the courts. Identification of statutory purpose, a concept which is not logically congruent with that of legislative intention, although the two may coincide, is involved in the process of construction. As the majority observed in Lacey, statutory purpose:

...may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.[38]

55 The fact that the High Court now regularly reminds courts that the process of statutory interpretation requires them to focus first upon the structure and text of the Act, and to move to broader contextual matters only at a later stage, most definitely does not mean that these 'purposive' considerations can be ignored. However, the emphasis in statutory interpretation does seem, in recent times, to have shifted somewhat. It might be said that the current approach to the interpretative task requires courts to both begin and end with the text. That is, of course, always bearing in mind that any provision must be read in context, and against the background of the Act as a whole.

56 Legislative history can, in some cases, shed light upon the meaning of particular provisions that might otherwise be problematic. So too, can reference to extrinsic materials, in accordance with the requirements of s 35 of the Interpretation of Legislation Act 1984. So far as I can ascertain, neither legislative history, nor extrinsic materials, provide any useful assistance in determining the issue before the Court in this case.

57 It is with these principles in mind that I now turn to consider the particular question of construction that arises in the case stated.

58 Several things can immediately be noted. As is now customary, the CMI Act contains what might be described as an 'objects clause'. Section 1 provides as follows:

The purposes of the Act are―

(a) to define the criteria for determining if a person is unfit to stand trial;

(b) to replace the common law defence of insanity with a statutory defence of mental impairment;

(c) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

59 Part 3 of the CMI Act is headed 'Special Hearings'. It links back to pt 2 (which is headed 'Unfitness to Stand Trial'), and particularly ss 6 and 7 within pt 2.

60 Section 6 defines when a person is unfit to stand trial. Section 7 creates a statutory presumption in favour of being fit to stand trial and also establishes that the question of fitness is one of fact, which is to be determined on the balance of probabilities. The onus rests on the party seeking to rebut the presumption.

61 Part 3 sets out the new procedures established under the CMI Act for dealing with persons unfit to stand trial. Putting to one side ss 6 and 7, to which I have just referred, pt 3 contains the only provisions within the CMI Act that are directed specifically to the issue of fitness to stand trial and, in particular, the manner in which special hearings are to be conducted.

62 Part 4, which is headed 'Defence of Mental Impairment', is plainly intended to deal with the second of the three purposes stated in s 1, namely the replacement of the common law defence of insanity with a new statutory defence of mental impairment.

63 The first thing to note about the CMI Act is that there is obviously a degree of overlap between pts 3 and 4. Section 20(1), which falls within pt 4, defines the defence of mental impairment. Without that definition, the many references to mental impairment in pt 3 would be entirely devoid of content.

64 The question that must be determined is, what is the extent of that overlap? In my view, the answer to that question is that the extent of the overlap is quite limited.

65 To illustrate the point, s 21, which appears under the heading 'Presumptions, standard of proof, etc.', should be closely examined. Subsection (1) provides that a person is presumed not to have been suffering from mental impairment until the contrary is proved. Subsection (2) makes it clear that the question whether a person was suffering from a mental impairment at the time of the alleged offending is (a) a question of fact; and (b) subject to sub-s (4), is to be determined by a jury on the balance of probabilities. Subsection (3) casts the onus of proof in relation to rebutting that presumption upon the party raising the defence of mental impairment. Finally, and most importantly for present purposes, sub-s (4) makes provision for trial by judge alone in the circumstances therein set out. Thus, if a person is charged with an indictable offence, and before the empanelment of a jury, the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and, if satisfied that it establishes that defence, direct a verdict of not guilty because of mental impairment. If not so satisfied, the trial judge must direct that the person be tried by a jury.

66 Self-evidently, each of the matters dealt with in s 21, is, in explicit terms, applicable only where there is a 'trial', and the defence of mental impairment is raised. The question to be determined in this proceeding is whether, notwithstanding the language used in that section, it can properly be construed to enable the judge alone procedure to be used in relation to a special hearing. Self-evidently, any construction that leads to that result will require a certain amount of judicial licence through some form of implication.

67 In that regard, it is important to note that s 7 of the CMI Act deals with procedural matters in relation to questions of fitness to stand trial, and is obviously linked, in that sense, to special hearings. Such a hearing will be conducted only if a jury, empanelled for that purpose, has found such unfitness. The language of s 7 is closely analogous to that utilised in s 21. Indeed, the heading immediately above s 7 is identical to that which appears above s 21.

68 Had the legislature intended to allow a special hearing to be conducted before a judge alone (without the need to empanel a jury) it could easily have made that position clear. It would only have been necessary to deal with the matters currently dealt with under ss 7 and 21, as well as procedural issues arising in special hearings, within the one section. That would have ensured that the issue of fitness to stand trial, the outcome of a special hearing and the defence of mental impairment could all be dealt with using essentially the same procedures.

69 Yet the legislature chose to use s 7 for the purpose of specifying the procedures to be followed when dealing with fitness to stand trial, and s 21 for the purpose of doing so when dealing with the defence of mental impairment. In addition, s 17(2), which is concerned with the standard of proof in relation to a finding under s 17(1)(c) that the accused committed the offence charged or an offence available as an alternative, makes it clear that, unlike the standard of proof that applies on fitness to plead, the jury must be satisfied beyond reasonable doubt if it is to make such a finding. That, of itself, provides some support for the view that the legislature intended to keep quite separate the procedure applicable under pts 3 and 4.

70 It is important to note that the procedural requirements set out in s 21(4) (which is the pivotal provision so far as this particular proceeding is concerned) are preceded by a series of related requirements, all of which are, self-evidently, applicable to trials at which the defence of mental impairment is raised. None of these provisions have any apparent application to the entirely distinct procedures associated with special hearings.

71 Secondly, pt 3 itself is replete with references to the jury as the body chosen by the legislature to determine whether an accused is to be found not guilty of the offence charged (s 15(a)), found not guilty because of mental impairment (s 15(b)) or found to have committed the offence charged or an offence available as an alternative (s 15(c)). More particularly, the jury is expressly designated as the trier of fact in relation to a special hearing in ss 16(1), 16(2)(b), 16(2)(f), 16(3), 17(1), 17(2), 18(1) and 18(4).

72 Thirdly, it must be remembered that the question before this Court is not whether there is any overlap at all between pts 3 and 4. Plainly, as I have earlier indicated, some such overlap does exist. Rather, the interpretative issue to be resolved is whether s 21(4), on its proper construction, allows for a special hearing to be conducted before a judge alone, despite the fact that a special hearing is not a trial. If that construction is to prevail, it must do so in the face of the actual terms employed in the section.

73 Fourthly, a question arises as to whether s 16(1), which provides that a special hearing is to be conducted 'as nearly as possible as if it were a criminal trial', has the effect of converting s 21(4) into a provision that allows for a judge alone special hearing. In that regard, I repeat that a special hearing, whatever else it may be, is most definitely not a trial. Section 16(1) makes that abundantly plain. In those circumstances, the question is, can s 21(4) be so liberally construed as to enable it to give effect to what might be regarded as sound policy?

74 In posing that particular question, it should be remembered that the High Court in Alcan cautioned that fixing upon a particular general legislative purpose carries with it the danger that the text will not receive the attention it deserves.[39] I would add that there is by no means likely to be consensus as to whether it is desirable, from a policy perspective, to have special hearings conducted without juries.

75 Fifthly, and closely related to that fourth point, assuming that a special hearing cannot readily be described as a 'trial', is it even conceivable that any judge who presides over such a hearing can properly be described as a 'trial judge'?

76 Sixthly, does the fact that it is impossible to make sense of some of the provisions within pt 3 without having recourse to s 20 (which is itself within pt 4) mean that pts 3 and 4 are to be read as though they are, in effect, largely interchangeable?

77 It is evident from this brief summary of some of the key features associated with the structure and text of the CMI Act, and also from a number of the questions posed, that I agree with Tate JA as to how this case should be resolved.

78 In his reasons for judgment, the President observes that it is common ground between the parties that at least some of what is contained within pt 4 must, almost by definition, be 'incorporated by reference' into pt 3. That is indeed so. However, for the reasons that I have earlier outlined, and with respect, putting the matter that way does not, of itself, greatly assist in resolving the construction issue before this Court.

79 The President goes on to say that such 'incorporation by reference' must be accepted in order to provide the 'necessary machinery' to enable the special hearing to achieve its stated statutory purpose.[40] Indeed, his Honour pithily identifies the central issue in this case as being 'whether s 21(4) was, or was not, one of the provisions thus incorporated'.[41] I agree, of course, that that is indeed the central issue in this case.

80 I note, as does the President, that the submission put forward on behalf of the Director contains two parts. The first is that adjudication at a special hearing is a task committed by s 17(1) exclusively to a jury. The second is that the language of s 21(4) makes it unambiguously clear that the procedure for a judge alone trial is to be available only at a trial, properly so called. Self-evidently, the Director submits, this does not include a special hearing.

81 Having analysed in some detail a number of the textual arguments upon which the Director relies, the President comments:

Were the statutory construction question confined to a consideration of the language of s 17(1) and s 21(4), I consider that there would be no answer to these arguments. Standing alone, the language of the subsections is intractable. I would reject the argument of counsel for SM that it is open to the Court, on ordinary principles of interpretation, to read into s 21(4) the additional words which would be needed in order to make the provision applicable to a special hearing. [42]

82 The President's summary of the position provides a clear, and eloquent statement of precisely why, in my view, the judge alone procedure in s 21(4) cannot be invoked in relation to a special hearing. The structure and text of the CMI Act are, in truth, intractably against any such interpretation. It is only by recourse to s 16(1), that the President is able to overcome what he accepts would otherwise be the 'intractable' language that appears to support the Director's position.

83 The President's analysis is of course forceful and well-reasoned. Nonetheless, having given this matter careful consideration, and having weighed for myself the competing views regarding the proper interpretation of s 21(4), I find myself unable to accept his conclusion.

84 It must be remembered that s 16(1), which forms the basis of the President's analysis, is in the following terms:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

85 Section 16(1) cannot, of course, be read in isolation. The subsection forms but one component of a series of provisions, all of them within the section itself, which are procedural in nature and clearly predicated upon a special hearing being conducted before a jury. If, as the President concludes, s 21(4), when read in conjunction with s 16(1), does allow for a judge alone special hearing, the result would be that almost the whole of s 16 would have to be put to one side in such a case, or at the very least, significantly 're-written'.

86 It is of course entirely legitimate in appropriate cases to fill in gaps in the textual detail of particular provisions, in accordance with basic canons of construction. For example, sometimes the draftsman's desire to compress language leads to the omission of necessary words which, in order to make sense of the provision, must be 'read in' as part of the process of statutory interpretation.

87 However, it is one thing to avoid a strained, or possibly even absurd construction by reading into a section words which are not there. It is quite another to treat words that have been specifically included within the text as though they were mere surplusage, to be discarded if inconvenient, or thought to be contrary to the general policy underlying the Act being construed.

88 On the assumption that the legislature does not normally use language that is superfluous, the Court will generally endeavour to give significance to every word contained within the section being construed. It is presumed that if a word or phrase appears, it was put there for a purpose, and is not to be disregarded.[43]

89 The word 'trial' in s 21(4) cannot, in my view, be discounted simply on the basis that s 16(1) provides that a special hearing is to be conducted as 'nearly as possible' as if it were a criminal trial. That would be to give s 16(1) more work to do than the legislature could ever have intended. It would be to attribute to the Parliament an intent to bring about an almost revolutionary change to the procedure stipulated for special hearings in pt 3 by something akin to a mere 'side wind'.

90 I note, for the sake of completeness, that s 16 itself is headed 'Procedure at special hearings'. Section 36 of the Interpretation of Legislation Act 1984 provides that headings form part of the Act in which they appear, and regard may be had to them when engaged in the process of statutory interpretation. The heading above s 16 suggests that what follows represents, exhaustively, a statement of the procedure to be applied in the course of a special hearing. It does not naturally suggest that what follows thereafter is merely one aspect of various procedures that may, at the option of the parties, be available.

91 Moreover, and to the same effect, I would add that the heading immediately above s 21, 'Presumptions, standard of proof, etc.', does not, of itself, suggest any wider application of s 21(4) than that which the language thereafter employed naturally conveys.

92 In arriving at my conclusion that a special hearing under the CMI Act requires the empanelment of a jury, I would not wish to be misunderstood. It seems to me to be perfectly arguable, as a matter of policy, that where otherwise appropriate, the option of a judge alone hearing should be available in such cases.

93 I appreciate the force of Bell J's concern, in his Honour's recent decision in DPP v Watson,[44] that a person who has been found unfit to plead may not be in a position to give instructions to his or her counsel as to whether to consent to a judge alone hearing (still less whether to concede the facts that give rise to a finding under s 15(b) of not guilty because of mental impairment). That is undoubtedly an important policy consideration in favour of retaining juries for special hearings. It must be balanced against the desirability of introducing greater flexibility into the procedures available for determining such matters. However, the balancing exercise seems to me to be one that should be undertaken by the legislature, and not by the courts.

94 For the reasons set out above, I would answer the question posed in the case stated in the negative, as proposed by Tate JA.

95 SM was charged with committing an indecent act with or in the presence of a child contrary to s 47 of the Crimes Act 1958. At the time of the alleged offending SM was 15 and the complainant was five years old. SM was found unfit to stand trial by a jury empanelled for that purpose. A judge of the County Court found that SM would not become fit to stand trial within the next 12 months. The undisputed evidence was that SM has an IQ of 43 and a moderate to severe intellectual disability. The prosecution and the defence agreed that the evidence established that SM was mentally impaired at the time of the alleged offending. The issue arose as to whether the judge, sitting alone, could determine that the defence of mental impairment was made out and record a verdict of 'not guilty because of mental impairment' or whether it was necessary to empanel a second jury to determine the verdict at a special hearing.

96 Against a background of conflicting authority, the judge reserved the following question of law to this Court for determination:[45]

Whether pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, following a jury determination that the accused is unfit to stand trial and where the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may, if satisfied that the evidence establishes the defence of mental impairment, direct that a verdict of not guilty because of mental impairment be recorded or whether it is necessary to empanel a jury to determine the verdict at a special hearing.

97 For the reasons that follow, I would answer the question in the negative; it will thus be necessary for the judge to empanel a jury to conduct a special hearing. In my view, the Crimes (Mental Impairment and Unfitness to be Tried) Act ('the Act') provides that, when an accused has been found unfit to stand trial, the defence of mental impairment, if raised, must be determined at a special hearing by a jury. I do not consider that a judge alone can determine that defence, or record a verdict of 'not guilty because of mental impairment', in relation to an accused who is unfit to stand trial.

98 I consider that it is a matter for the Legislature to determine whether the Act should be amended to confer the relevant power upon a judge alone.

(1) to define the criteria for determining if a person is unfit to stand trial;

(2) to replace the common law defence of insanity with a statutory defence of mental impairment;

(3) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

100 The third of the purposes identified indicates that the procedures for dealing with people who are unfit to stand trial because of mental impairment are all created by the Act.

101 Under the Act a person is presumed fit to stand trial.[47] The presumption is rebutted only if it is established, on an investigation under Pt 2 of the Act, that the person is unfit to stand trial.[48] Whether a person is unfit to stand trial is a question of fact.[49] Under Pt 2 the question of whether a person is unfit to stand trial is to be determined by a jury empanelled solely to answer that question. This is provided for in s 7(3):

The question of a person's fitness to stand trial -

(a) is a question of fact; and

(b) is to be determined on the balance of probabilities by a jury empanelled for that purpose.

102 The prosecution, defence, or the trial judge may raise the question of a person's fitness.[50] At any time after an indictment has been filed if it appears to the court that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve that question for investigation under Pt 2.[51] Similar considerations apply during a trial.[52] The court may grant the accused bail during the investigation or order that the accused be remanded in custody.[53]

103 If the question of whether a person is unfit to stand trial arises in a committal proceeding for an indictable offence, the Act provides for a two-stage procedure: first, the question is reserved for consideration by the trial judge who will determine 'whether there is a real and substantial question as to the fitness of the accused to stand trial' and, secondly, if the judge does so determine, he or she must direct that an investigation be held under pt 2 by a jury empanelled for that purpose.[54]

104 The provisions of the Juries Act 2000 apply to an investigation of whether an accused is unfit to stand trial 'as if the investigation were a criminal trial'.[55] At the commencement of the investigation, the judge must explain to the jury the reasons for the investigation; the findings which may be made; and the standard of proof required.[56]

105 In investigating the question of whether a person is unfit to stand trial, the jury will determine whether any one of the indicia specified in s 6 has been made out. The jury may be satisfied that more than one indicia is applicable. Section 6(1) provides:

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.

106 In the investigation into whether SM was unfit to stand trial, evidence was given by two consultant psychiatrists, Dr Teresa Flower and Dr Adam Deacon, that, in their opinion, SM was unfit to stand trial when considered against every criterion specified by s 6.

107 The role of the judge, upon a finding by the jury that the accused is unfit to stand trial, is to determine whether the accused is likely to become fit to stand trial within the next 12 months.[57] The finding is to be made on the balance of probabilities.[58] Here, the judge determined, as mentioned above, that SM would not become fit to stand trial within the next 12 months.

108 Section 12 governs what happens after an investigation and provides, under s 12(5), that if an accused is found unfit to stand trial a 'special hearing' must be conducted under Pt 3 within three months:

(1) If the jury finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.

...

(5) If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing under Part 3 within 3 months.[59]

109 It is clear from the language of s 12(5) that it is mandatory for a special hearing to be held for those persons who are not fit, and unlikely to become fit, to stand trial. Moreover, s 12(5) imposes an express time limitation within which the special hearing must be held. There is no provision for an extension of time.

110 The difference in the language of s 12(1) and s 12(5) indicates that there is a comparison to be drawn between a trial conducted in accordance with usual criminal procedures and a special hearing. There is a negative implication, namely, that a person who is unfit to stand trial is not to be tried in accordance with usual criminal procedures, at least not wholly so.[60]

111 Part 3 of the Act governs the conduct of special hearings. A special hearing is defined as 'a hearing under Part 3'.[61] Its purpose is not the conventional one associated with a criminal trial, namely, to determine whether the accused is guilty of the offence charged. Indeed, it does not permit a verdict of guilty to be given. Rather, its purpose is to determine whether the accused (1) is not guilty of the offence; or (2) is not guilty of the offence because of mental impairment; or (3) committed the offence charged or an offence available as an alternative. This is apparent from s 15:

The purpose of a special hearing is to determine whether, on the evidence available, the accused:

(a) is not guilty of the offence; or

(b) is not guilty of the offence because of mental impairment; or

(c) committed the offence charged or an offence available as an alternative.[62]

112 Section 15 suggests that a special hearing is directed to a single purpose: namely, the determination of which of the three alternatives identified is made out. This is reinforced by s 16(3)(c), which requires a judge to explain to the jury at the commencement of the special hearing 'the purpose' of the special hearing.[63] It also suggests that at any special hearing the three alternatives must be potentially available, depending on the evidence. From this one might infer that the body entrusted with determining whether one of those alternatives is made out must also be entrusted with determining the fate of the other alternatives. This would imply that the only fact-finding body relevant to a special hearing is one capable of making all (or any) of the three alternative determinations. The significance of this feature of the statutory scheme is discussed below.

113 To facilitate its purpose, a special hearing enables findings to be made, consistent with the three alternatives identified in s 15, which are quite distinct from those available in an ordinary criminal trial. As mentioned, it does not permit a verdict of guilty to be given but at most permits a finding that the accused has 'committed the offence charged', or committed an offence available as an alternative, which may lead to an order for supervision or unconditional release[64] but not imprisonment. It also enables a finding to be given that the accused is 'not guilty of the offence because of mental impairment' or simply 'not guilty'. Section 17 provides that these are findings which are available to the jury at a special hearing:

(1) The following findings are available to the jury at a special hearing -

(a) not guilty of the offence charged;

(b) not guilty of the offence because of mental impairment;

(c) the accused committed the offence charged or an offence available as an alternative.[65]

114 If the jury is to return a verdict under s 17(1)(c) it must apply the ordinary criminal standard of beyond reasonable doubt. Section 17(2) provides:

To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative.

115 It is necessary for the judge, at the commencement of the special hearing, to explain to the jury, amongst other things, what it is for an accused to be unfit to stand trial and what findings are available to it. Section 16(3) provides:

At the commencement of a special hearing, the judge must explain to the jury -

(a) that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and

(b) the meaning of being unfit to stand trial; and

(c) the purpose of the special hearing; and

(d) the findings that are available; and

(e) the standard of proof required for those findings.[66]

116 This is a further indication that a special hearing consists in an investigation before a jury.

117 Section 16(2) describes the general conduct of a special hearing including the right to challenge jurors and the availability of alternative verdicts to the jury:

Without limiting subsection (2),[67] at a special hearing -

(a) the accused must be taken to have pleaded not guilty to the offence; and

(b) the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;

(c) the accused may raise any defence that could be raised if the special hearing were a criminal trial, including the defence of mental impairment;

(d) the rules of evidence apply;

(e) section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused) applies as if the special hearing were a criminal trial;

(f) any alternative verdict that would be available if the special hearing were a criminal trial is available to the jury.[68]

118 In this context, s 16(1) provides for the conduct of a special hearing to be as nearly as possible that of a criminal trial, thereby expressly attracting the application of the Juries Act:

A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.

119 This is reflected in s 3 of the Juries Act which defines 'criminal trial' to mean:

trial on indictment for an indictable offence or the trial of an issue by a court sitting in the exercise of a criminal jurisdiction and includes an investigation and a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

120 Accordingly, all the provisions in relation to liability for jury service, jury districts and jury rolls, summoning of jurors, jury panels, peremptory challenges and challenges for cause, remuneration and allowance for jurors, and offences by jurors apply to special hearings.

121 Section 18 of the Act indicates the effect of the findings made at a special hearing. A finding by a jury that the accused is not guilty of the offence charged (under s 17(1)(a)) is to be treated as if it were a finding of not guilty at a criminal trial, for all purposes. A finding of 'not guilty because of mental impairment' (under s 17(1)(b)) is to be treated as if that were the verdict at a criminal trial. A finding by a jury that the accused committed the offence (under s 17(1)(c)) is a qualified finding of guilt that bars further prosecutions.

18 Effect of findings

(1) If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial.

(2) A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.

(3) A finding under section 17(1)(c) -

(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and

(b) constitutes a bar to further prosecution in respect of the same circumstances; and

(c) is subject to appeal in the same manner as if the person had been convicted of the offence in a criminal trial.

(4) If a jury makes a finding under section 17(1)(c), the judge must -

(a) declare that the person is liable to supervision under Part 5; or

(b) order the person to be released unconditionally.[69]

122 It is noteworthy that two of the potential findings, the finding of not guilty and the finding that the accused has committed the offence, make express reference to their having been made by a jury in a manner that suggests this is the only way the finding can be made.

123 There is provision for the DPP to appeal against a verdict of 'not guilty because of mental impairment', pursuant to s 24AA.[70] It is cast in terms that also suggest that this verdict, the third of the alternative findings that can be made in a special hearing pursuant to s 17(1), is a matter that is determined by a jury. Section 24AA relevantly provides:

(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.

...

(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfied the court that -

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as a result of an error or irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.[71]

124 There is no equivalent provision in the Act that provides for an appeal to the Court of Appeal from a finding by a judge alone that a person is not guilty because of mental impairment.[72]

125 The defence of mental impairment is governed by Pt 4 of the Act. Section 20(1) prescribes what relevantly amounts to mental impairment:

The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that -

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

126 Section 20(2) stipulates that 'if the defence of mental impairment is established, the person must be found not guilty because of mental impairment'.

127 Section 21 is a critical provision for determining if a person was suffering from a mental impairment at the time of committing the offence. It permits a trial judge, before a jury has been empanelled, in certain circumstances to direct that a verdict of not guilty because of mental impairment be recorded. It provides:

(1) A person is presumed not to have been suffering from a mental impairment having the effect referred to in section 20(1) until the contrary is proved.

(2) The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1) -

(a) is a question of fact; and

(b) subject to subsection (4),[73] is to be determined by a jury on the balance of probabilities.

(3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.

(4) If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and -

(a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or

(b) if the trial judge is not so satisfied, must direct that the person be tried by a jury.[74]

128 Section 21(4) does not permit a judge alone to make the other two alternative findings that s 17 provides are available for a jury to make at a special hearing.

129 The defence of mental impairment may be raised at any time during a trial by the defence, or with the leave of the trial judge, by the prosecution, pursuant to s 22(1).

130 While s 21(4) permits a trial judge, before a jury is empanelled, to direct a verdict of not guilty because of mental impairment where the prosecution and defence agree, s 22(2) provides what a trial judge may direct after a jury has been empanelled. It reads:

If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled -

(a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and

(b) if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.

131 Under s 23, the effect of a finding of not guilty because of mental impairment is that the court must declare the person liable to supervision or order the person to be released unconditionally. As mentioned above, s 24AA allows for an appeal against a mental impairment verdict given by a jury.

132 SM submitted,[75] in essence, that the power of a trial judge alone to record a verdict of not guilty because of mental impairment, under s 21(4), is available in a special hearing. The submission was based, in particular, upon the force of s 16(1), which, by providing that a special hearing was to be conducted as nearly as possible as if it were a criminal trial, was argued to attract the application of s 21(4) and the power a judge has in a criminal trial to record a verdict of not guilty because of mental impairment, when, before a jury is empanelled, the prosecution and defence agree that the evidence establishes that defence.

133 SM relied upon the 2008 decision of Osborn J in DPP v CJC.[76] The DPP relied upon the conflicting authority of the 2013 decision of Bell J in DPP v Watson.[77]

134 In DPP v CJC, CJC had inflicted a fatal stab wound to the chest of his sleeping father. He was charged with murder and on 27 October 2008 a jury of 12 found that he was not fit to stand trial pursuant to s 11 of the Act. Osborn J found that CJC would not be likely to become fit to stand trial within the following 12 months. A day later, on 28 October 2008, the matter came on before Osborn J for a special hearing. Senior counsel who appeared for the prosecution on 27 October 2008 suggested that his Honour deal with the matter alone pursuant to s 21(4). On 28 October 2008, counsel for the prosecution and defence requested and consented to that course. Having heard the evidence, his Honour directed that a verdict of not guilty because of mental impairment be recorded.[78] In December 2008 the DPP applied to have the orders set aside on the grounds that they were a nullity having been arrived at by reason of fundamental procedural irregularity, it not being open to proceed under s 21(4) on a special hearing. It was contended that the Act required a special hearing to be conducted before a jury.

135 His Honour refused to set aside the orders. He held that s 21(4) applied to a special hearing on the ground that, amongst other things, the fundamental intention of s 16(1) had been achieved; Pts 3 and 4 of the Act are inter-dependent; the plain meaning of s 21(2)(b) is that s 21(4) is applicable and the terms of s 21(4) are apt to embrace the circumstances of a special hearing. He observed that the extrinsic materials did not directly address the issue and did not compel a different conclusion.

136 In a detailed and careful judgment, his Honour considered that:

(1) Section 16(1) made it plain 'that the intention of the Act is not that there be fundamentally different procedural frameworks for special hearings and criminal trials which raise the defence of mental impairment'.[79]

(2) Pt 3 depends on Pt 4 for its meaning and implementation. Under s 17(1)(b), a special hearing may result in a finding that the accused is not guilty because of the defence of mental impairment and yet the content of that defence is dependent upon s 20, the evidentiary framework in which the defence is to be assessed is provided by s 21, and the effect of the finding is identified in s 23, all of which are contained in Pt 4.

(3) There is no standard of proof identified in Pt 3 applicable to a finding that the accused is not guilty because of mental impairment; the standard of proof for the defence is the balance of probabilities but this is provided for only under Pt 4, in s 21(2).

(4) The effect of a finding of not guilty because of mental impairment under s 17(1)(b) (under Pt 3) is identified in s 23 (under Pt 4) (requiring the court to declare the person liable to supervision or unconditional release).

(5) Section 21(2)(b) must apply to a special hearing because, as mentioned, without it there is no specification of the standard of proof applicable. Its plain terms refer to sub-s (4) of s 21. If the words of s 21(2)(b) are given their plain meaning, the determination of whether a person was suffering from a mental impairment at the time of the alleged offence in accordance with a standard of proof applicable in both trials and special hearings is expressly subject to sub-s (4) and the possibility of a determination by a judge alone.

(6) The terms of s 21(4) embrace the circumstances of a special hearing because it requires the consent of the defence, the procedure is adopted before the empanelment of a jury and there is no requirement for a plea to have been given. This last factor is important because if s 21(4) had required for its application that the accused plead not guilty because of mental impairment it would clearly not be relevant to a person who had been found unfit to plead. Such a requirement would have excluded special hearings.

(7) The submission of the DPP that a person who has been found unfit to plead cannot properly instruct their legal representatives to dispense with a jury was to be rejected because s 21(4) requires the agreement of 'the defence' and not 'the defendant' and, further, there was no material disadvantage to an accused because no order can be made directing a verdict of not guilty because of mental impairment unless the trial judge is satisfied that the evidence establishes the defence of mental impairment and '[c]onversely of course, a jury could in theory make a finding that the defendant committed the offence charged or an alternative in circumstances at a special hearing, where the judge was satisfied that the evidence established the defence of mental impairment'.[80]

(8) There were strong reasons of both humanity and public policy supporting the view that if a person is not fit to take part in a trial they should not be forced to take part in a special hearing before a jury: 'These proceedings should be no more of a public spectacle of suffering than is necessary'.[81]

(9) The submission of the DPP that the use of the expression 'trial judge' in s 21(4) was not appropriate to a special hearing was rejected on the basis of the force of s 16(1); his Honour also saw no inconsistency between Pt 3 and the requirement, under s 21(4), that if the trial judge is not satisfied that the evidence establishes the defence of mental impairment, he or she must direct that the charge for the offence 'be tried' by a jury, because of the operation of s 16(1) and (2).

(10) The strict delimiting of the powers of a judge under s 21(4) to the determination of only one of the three alternative outcomes identified under s 15, supported the application of s 21(4) to a special hearing. He said:

Section 21(4) does not enable a judge to direct a verdict other than that which the parties have agreed the evidence establishes. More particularly, it enables the judge to give effect to one only of the three potential outcomes envisaged by s 15, namely not guilty of the offence because of mental impairment. The manifest purpose of the provision is to avoid the need to empanel a jury in cases where it is agreed there is no controversy as to the underlying truth of the matter (as in the present case).

It is because the trial judge's power is limited to only one dispositive outcome that the director is not correct to submit:

If it was intended that a special hearing could be heard by a judge alone then one would have expected the word 'jury' in s 16(2)(f), 17(2) and 18(1) to have been replaced by the word 'court'.

Each of these subsections is concerned with verdicts not open to a judge pursuant to s 21(4). It is not open to a judge acting in accordance with s 21(4) to bring in a verdict of not guilty of the offence charged, or a verdict that the defendant committed the offence charged or an offence available as an alternative.[82]

(11) The fact that a judge can only make a limited finding under s 21(4) does not contradict s 17:

Section 17 does not provide that upon a special hearing it is a jury which must make all the findings specified. It provides for a broader range of findings than those 'available' to a judge under s 21(4). ... only one of these findings is available to a judge pursuant to the special procedure provided for in s 21(4).[83]

(12) Neither s 16(2)(b) nor s 16(3) will bear on the judge-alone procedure 'but that does not give rise to a direct inconsistency'.[84] If the s 21(4) procedure is adopted, it will not be necessary for the explanation to be given to the jury that s 16(3) envisages. A distinction is to be drawn between the procedure under s 21(4) that addresses a limited issue and the general provisions in s 16(3). He said:

S M v The Queen [2013] VSCA 342

At a glance

Court

Decision date

Before

Source

Judgment (350 paragraphs)

S M v The Queen [2013] VSCA 342 (28 November 2013)

Parties

Legislation Cited (13)

Cases Cited (24)