Criminal Law - Hearing in open court and in presence of accused - Generally - Criminal Justice (Mental Impairment) Act 1999 - Whether accused unfit to stand and attend trial - Special hearings - Whether presence of accused required.

Lawrence v R [1933] AC 699; R v Vernell [1953] VicLawRp 79; [1953] VLR 590; R v Fitzgerald [1889] VicLawRp 15; (1889) 15 VLR 40; R v Lee Kun [1916] 1 KB 337, considered.

R v Stuart [1974] Qd R 297, followed.

Criminal Justice (Mental Impairment) Act 1999 (Tas) ss8, 9, 10, 12, 14, 15, 16 and 19.

Criminal Code Act 1924 (Tas), ss351, 357 and 369.

Judgment Number: [2005] TASSC 29

1 The accused was indicted on 9 March 2004 for three counts of aggravated assault. Each of the counts was alleged to have involved threats to shoot people with a rifle he was holding. The events occurred on the night of 31 December 2001 and the early hours of the following morning.

2 The hearing was scheduled for 14 February 2005. A month earlier, the accused's solicitors advised the Launceston District Registrar that on that date an application would be made for an order permanently staying the trial by reason of the ill-health of the accused. It was foreshadowed that if the application was unsuccessful, a hearing would be required to determine whether he was fit to be tried.

3 At some point, the accused's legal advisers decided not to make a formal application for a stay of proceedings. At the hearing, matters unfolded in the following way. The accused did not attend Court. He was represented by counsel, Mr Nicholson QC. Counsel for the State was Mr Ransom. They agreed that by reason of ill-health, the accused was unfit to stand trial, as that expression is used in the Criminal Justice (Mental Impairment) Act 1999 ("the Act"), and that it was unlikely that he would become fit to stand trial during the next 12 months. They also agreed that it would be hazardous to the accused, because of his fragile health, if the Court required him to appear before it. Mr Nicholson applied for an order that an investigation into whether the accused is unfit to stand trial, and if so found, a hearing to determine whether or not he is likely to become fit to stand trial during the next 12 months, and if it were to be determined that he is not so likely, a special hearing under the Act be adjourned indefinitely. Reports from two psychiatrists, Dr Bell and Dr Ratcliff, were tendered and both gave oral evidence. Mr Nicholson submitted that it was plain that the Court should not and would not, force the accused to appear before it in person. "We are dealing with a severely mentally ill and physically ill human who simply cannot take part in the proceedings", he said. He then submitted that as a matter of law, the Court had no power to proceed under the Act unless the accused was present in Court. Mr Nicholson submitted in the alternative, that if the Court determined that it did have power to hear the matter in the absence of the accused, it should nevertheless exercise a discretion not to do so. In either case, he submitted that the proceedings should be adjourned indefinitely.

4 Mr Ransom submitted that the Court had power to conduct hearings and make determinations under the Act in the absence of the accused and that it should exercise that power.

5 The accused has physical and mental ailments. He has suffered from epilepsy for the last 18 months approximately. He has had major epileptic seizures in which he has lost consciousness, convulsed and stopped breathing for three or four minutes and he has also had more minor seizures. It cannot be predicted when he will have another seizure. If he is required to attend before the Court, it is possible that the stress could induce a seizure. He suffers from urinary incontinence for which a suprapubic catheter was inserted to drain urine into a collection bag. He also suffers from angina pectoris which is attributable to a congenital malformation of the coronary arteries.

6 It is his emotional and psychiatric health that causes most concern. His concentration and short term memory are grossly impaired. In his most lucid of moments, he has only a fleeting short term memory. He speaks with a severe stutter. It is very difficult to carry on a conversation with him, partly because he has great difficulty comprehending what is said to him. His wife has reported that there have been prolonged periods lasting up to two or three months when he has lost his voice. She also reported a personality change and that he has become very nervous, unwilling to leave his home or answer the telephone. It has been suggested that many of his problems originate from a head injury suffered by him on the night of the assaults charged against him. Dr Ratcliff concluded that he suffers from a post-concussional syndrome characterised by dysmnesia, dysarthria and overall cognitive impairment and post-traumatic epilepsy and migraine.

7 The accused suffers badly from depression. Dr Bell saw him on 13 January 2005 and described him as profoundly depressed and virtually mute. He has suicidal tendencies when stressed. He has on occasions been admitted to hospital as an emergency because of a significant risk of suicide. Dr Bell expected that the accused would require admission to hospital if placed under the stress of a court case and that he had been admitted as an emergency in less stressful situations because of the significant risk of suicide. On 30 December 2004, Dr Bell reported that "I am considering admitting Mr Bosworth for the duration of the trial because of the serious risk of suicide". He explained in evidence that he "thought there would be a really significant risk that he would attempt suicide or commit suicide if he wasn't in a place of safety". Dr Bell's testimony included: "Most of the time he is on the border of considering suicide. When he is under extra stress then the risk of suicide becomes acute and on occasion I have had to admit him to put him in a place of safety." He added that the accused was particularly distressed about the idea of coming to Court, "a good part of it being that he knows he can't comprehend what's going on". The mere thought of going to Court could trigger a suicide attempt. Dr Bell said that if the Court compelled the accused to appear before it, by having him arrested, and compelled him to remain throughout a hearing, he would require sedation to the point that he could take no meaningful part in the proceedings, effectively requiring nursing care and of him being away from reality.

8 Both psychiatrists held the opinion that his present impairments are permanent and it is unlikely there will be any significant improvement in the next 12 months or thereafter.

"(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired or for any other reason, the person is -

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

(b) unable to plead to the charge or to exercise the right of challenge; or

(c) unable to understand the nature of the proceedings; or

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

(e) unable to make a defence or answer the charge.

(2) Notwithstanding subsection (1)(e), a person is not unfit to be tried if the only reason that the person is unable to make a defence or answer a charge is that he or she is suffering from memory loss."

10 Dr Ratcliff addressed the criteria in subs(1) in the following ways. The accused is physically fit to attend a trial but would, for all effective purposes, be present in body only. He is able to understand the nature of the charges only in the most general terms. He would only have a most general understanding of the nature of a trial. His short term memory is so severely impaired that he would be unable to follow the course of the proceedings. He would have only transient memory of anything said in the course of the proceedings. He would be unable to provide his counsel with valid instructions to defend and answer the charges. Overall, he is unfit to stand trial. Further, he is not fit to attend trial or provide cogent instructions. The impairment of his ability to comprehend the proceedings is severe. His comprehension of the proceedings would be comparable to that of a child of low intelligence with severe memory impairment.

11 Part 2 deals with situations when the issue of unfitness to stand trial is raised. By s9, a person's fitness to stand trial is to be presumed unless it is established, on an investigation under the Part, that the person is unfit to stand trial, and the question of a person's unfitness to stand trial is to be determined on the balance of probabilities. By s10(5), a court must not conduct an investigation into a person's unfitness to stand trial unless it appears to the court that there is a real and substantial question as to his or her fitness to stand trial.

12 Section 12(1) was not well drafted for on its face it purports to require for every case of proceedings in the Supreme Court that the question whether a person is fit to stand trial "must be determined by a jury", whereas it is clear from ss19 and 14(1), that the Court may make a finding on the issue without the use of a jury. If the question of fitness is to be determined by a jury, the jury is empanelled in the usual way under the Jury Act 1899. If the jury determines that the accused is unfit to stand trial, it must also determine whether or not the accused is likely to become fit to stand trial during the next 12 months. See s12(4). I will return to that stage of the inquiry, but will first consider ss19 and 14(1).

13 By s19, if the prosecutor and accused agree, a court may dispense with or terminate an investigation (by a jury) into the accused's fitness to stand trial and (a) record a finding that the accused is unfit to stand trial; or (b) proceed towards having a trial as if, after the investigation, the court has made a finding that the accused is not unfit for trial. The present case is an obvious one for dispensation and recording of the finding in (a). Counsel agreed that the accused is unfit to stand trial and the evidence of Dr Bell and Dr Ratcliff supported a finding to that effect. It would be pointless conducting an investigation by a jury when, realistically, there can only be one outcome.

14 Whether the unfitness of the accused to stand trial has been investigated and determined by a jury or instead, it has been recorded by the Court under s19 without an investigation by a jury, the next stage in the process is to determine under s14(1), "whether or not the defendant is likely to become fit to stand trial during the next 12 months". As already noted, it is required by s12(4) that if the jury investigated the first issue and determined that the accused was unfit to stand trial, the same jury must also determine the second question whether the accused is likely to become fit to stand trial during the next 12 months. However, the Act does not require the second question to be determined by a jury if the unfitness of the accused to stand trial was recorded by the Court under s19. In such a case it is to be determined by the judge who constituted the Court.

15 It is likely for this case that if the processes of Pt2 are followed, it will be determined or recorded that the accused is unfit to stand trial and it will be determined that it is not likely that he will become fit to stand trial within the next 12 months. If so, s15(1) provides that the Court "must proceed to hold a special hearing". By subs(2), "the purpose of the special hearing is to determine whether, despite the unfitness of the defendant to stand trial, on the limited evidence available the defendant is not guilty of the offence". In this Court, that question must be determined by a jury. See s15(3). It is an opportunity for the State and the accused to call evidence, in the usual way, relevant to the question whether the accused is guilty of the offence or offences charged. If the jury has a reasonable doubt that the accused is guilty, it will find him or her to be not guilty and in such event the accused will be taken to have been found not guilty at an ordinary trial of criminal proceedings. See s18(1). The jury may also find the accused not guilty on the ground of insanity.

16 The jury may instead conclude that a finding cannot be made that the accused is not guilty. That finding could be made if the jury concluded beyond reasonable doubt, on the evidence before it, that the accused appeared to be guilty. If such a finding is made, or a finding that the accused is not guilty on the ground of insanity, the Court must declare that the accused is liable to supervision under Pt4 of the Act and it may make orders under that Part.

The Court's powers in the absence of the accused

17 When the issue has arisen, it has been held by common law courts that a person charged with a criminal offence has a right to be tried in open court and to hear and reply to every allegation and argument urged against him or her by witnesses and counsel for the prosecution. The presence of the accused throughout the trial has generally been regarded as essential. In Lawrence v R [1933] AC 699 at 708, the Privy Council stated the rule in the following way:

"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence."

18 In R v Vernell [1953] VicLawRp 79; [1953] VLR 590 at 595, Martin and O'Bryan JJ applied that statement. At 598, Smith J amplified it:

"As I understand what was said in Lawrence's Case (supra), the exception there suggested is one arising upon the fulfilment of two conditions, namely, (i) that the accused's conduct is intended to make trial impossible, and (ii) that it does in fact have that effect. The second of these conditions was not expressly stated, but I take it to be implicit in what was said.

The view that there is an exception where those two conditions are satisfied is supported by the general consideration that otherwise an accused man could defeat the criminal law by making it impossible to bring him to trial unless and until he chose to permit it. It is certainly difficult to suppose that this can be the law."

19 There are judicial statements to the effect that it is not only violent conduct on the part of the accused, that is intended to make it impossible for the trial to continue, that justifies proceeding in the absence of the accused. Thus, it has been said that "the right of being present remains with the accused as long as he claims it". R v Abrahams [1895] VicLawRp 73; (1895) 21 VLR 343 at 347. In a case concerning a private communication between the trial judge and the jury, R v Fitzgerald [1889] VicLawRp 15; (1889) 15 VLR 40, Williams J, on appeal to the Full Court, at 48 - 49, appeared to think that if the accused's counsel was present, but not the accused, it might be sufficient, as might also be the case if the accused in some way waived the opportunity to be present. His Honour said:

"It is, as I have always understood, the very essence of the administration of our criminal law that the trial of prisoners should take place in open court. The trial certainly does not terminate until the jury have given their verdict or until they have been discharged; and I take it to be not a novel, but a well and long-established principle of law - 2 Hales P C, p 296 and pp 306 and 307, and Chitty's Criminal Law, Vol I, p 633 - that the prisoner or his counsel is to be afforded the opportunity of hearing and seeing all that takes place during such trial. By 'all,' I mean all that is material to the issues joined between the Queen and the prisoner. I do not of course comprise within that expression those matters and incidents which frequently arise during the progress of a trial immaterial to and in no way connected with the issues joined, as, for instance, sending in word to the jury-room in answer to inquiries therefrom that a verdict of less than twelve cannot be taken, or that they (the jury) may have certain refreshment. But if a jury wish to be redirected upon a point, or to have a portion of the evidence adduced at the trial read over to them, the judge is bound in my opinion to do both the one and the other in open court, either in the presence of the prisoner, or of his counsel, or if neither be present after the prisoner shall have been afforded the opportunity of being present, and has either refused to, or has neglected or failed to, take advantage of the opportunity so afforded to him."

20 In Abrahams, the Full Court held that an accused might waive the right to be present at trial for a misdemeanour, but the trial judge had a discretion whether to accept the waiver of the right. The Full Court doubted that the accused could waive the right to be present on a trial for felony. In the United Kingdom the rule for felonies eventually became the same as for misdemeanours. In R v Howson [1981] Crim LR 720, the Court of Appeal referred to Jones (Robert) No 2 [1972] 1 WLR 887 and said that it was not intended to fetter the judge's discretion to continue the trial in an accused's absence by limiting the discretion solely to cases where the accused had abused the right to be present or had voluntarily agreed to the trial continuing in his or her absence. The court referred to the trial judge's duty to the community to ensure that the administration of justice was not unnecessarily impeded, as well as to the paramount duty to ensure that the accused was fairly treated. In the context of a long trial involving 29 accused persons, the court thought that there was no good reason why it should not continue in the absence of one of the accused who had fallen ill for a short period during which evidence was given that in no way affected his part in the case, although the court accepted that the discretion should be exercised sparingly and not if the defence might be prejudiced. In the Victorian misdemeanour trial of R v Sykes and Campi (No 2) [1969] VicRp 79; [1969] VR 639, it was held that the trial might continue in the absence of the accused if he consented, although the trial judge had a discretion whether to allow it, to "be exercised with a view, among other things, to the requirement of public policy that a man should be present at his own trial so that he knows, himself, at first hand what matter is put against him, and so that he can continuously instruct his legal advisers".

21 It has been held in New South Wales and South Australia that the distinction between a felony and misdemeanour should be ignored when considering whether the accused should be present at the trial. That was held by the Court of Criminal Appeal in R v McHardie and Danielson [1983] 2 NSWLR 733, and it was also held in that case that if an accused fails to appear at the trial after it has started, the trial judge has a discretion whether or not to continue with the trial or discharge the jury and that if the accused has so failed to appear, through his escape from lawful custody, it might correctly be found to be a waiver of his right to be present at the trial. R v Rigney (1988) 48 SASR 72 concerned an accused person who voluntarily absented himself from the trial when it was due to continue on the third day of the trial. Perry J followed R v McHardie and Danielson.

22 Concerning a situation where the accused person may, through mental illness, be incapable of understanding the nature of the proceedings, it was said by Lord Reading CJ in R v Lee Kun [1916] 1 KB 337 at 341:

"The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings. The prisoner may be unable, through insanity or deafness or dumbness, or the combination of both conditions, to understand the proceedings or to hear them, either directly or by reading a record of them, or to answer them either by speech or writing. In these cases a jury is sworn to ascertain whether the prisoner is 'fit to plead,' which is interpreted in Rex v Pritchard [1836] EngR 540; 7 C & P 303, 304 as meaning whether he is 'of sufficient intellect to comprehend the course of proceeding on the trial so as to make a proper defence ... If you think that there is no certain method of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge, you ought to find that he is not of sane mind.' If the accused is found not fit to plead, he is not tried, but is detained during His Majesty's pleasure."

23 The Criminal Code provides, in a limited way, for an accused to be absent during a trial. Since its enactment in 1924, s369 has not changed. It states:

"369 (1) The trial of an accused person shall take place in his presence, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the judge may order him to be removed, and may direct the trial to proceed in his absence.

(2) The judge may, in any case, if he thinks fit, permit a person charged with a crime to be absent during the whole or any part of the trial on such conditions as the judge thinks fit, and may, if he thinks fit, grant him bail for that purpose."

24 The section should be read in the context of s351, which deals with arraignment and which is also in its original form. Arraignment is the process by which, in accordance with s351(1), an accused person is brought to the bar of the court, informed of the crime or crimes charged in the indictment and called upon to plead. By virtue of subs(6), "the trial shall be deemed to begin when the accused is called upon to plead". Therefore, it seems that a trial cannot commence unless the accused is personally in attendance at the bar of the court and is then called upon to plead. If, for example, he absconds before that event can take place, the trial cannot commence and must wait until his attendance has been secured. With one immaterial difference, that was the view of the Court of Criminal Appeal in R v McHardie and Danielson (supra) at 738 - 739, the difference being that the court considered that for New South Wales, a trial did not and could not commence until the jury was put in charge of the accused, which was after the arraignment, the making by the accused of his or her plea and the empanelment of the jury.

25 Therefore, it appears that the provisions of s369 for the continuance of a trial in the absence of the accused can only operate if the accused is present when the trial commences, that is, when he or she is called upon to plead.

26 Until its repeal by the Act on 1 November 1999, the terms of the Code, s357, which was headed "Standing mute", for all relevant purposes remained the same as they were in 1924 in their provisions for determining whether an accused person was fit to stand trial. It also seemed to require that the accused appear before the Court at the outset of the proceedings, that is to say, for the arraignment, because it commenced in these terms:

"357 - (1) If an accused person, when called upon to plead to an indictment -

(b) does not directly answer to the indictment, and it appears to the judge that there is any doubt whether he is capable of understanding the proceedings, and of making a proper defence thereto,

the judge shall order a jury of 12 persons to be empanelled and sworn to try the questions -

(c) whether he wilfully refuses or neglects to answer to the indictment; and (if that question is answered in the negative)

(d) whether he is capable of understanding the proceedings and of making a proper defence thereto."

27 At all times in the course of the Act's processes, the Court is exercising its criminal jurisdiction. With respect to the special hearing under s15, but not the investigation and determination as to fitness to plead that must take place prior to a special hearing, procedural matters are provided by s16 as follows:

"(1) A special hearing is to be conducted so that the onus of proof and standard of proof are the same as in a trial of criminal proceedings and in other respects as nearly as possible as if it were a trial of criminal proceedings.

(2) The fact that the person has been found to be unfit to stand trial is taken not to be an impediment to his or her representation.

(3) Without limiting the generality of subsection (1), at a special hearing -

(a) the defendant is taken to have pleaded not guilty to the offence; and

(b) the defendant's legal representative may exercise the defendant's rights to challenge jurors or the jury; and

(c) the defendant may raise any defence that could be properly raised as if the special hearing were an ordinary trial of criminal proceedings; and

(d) the defendant is entitled to give evidence."

28 It should be noted that by s38, if the accused is unable to instruct his or her legal representative on any question relating to an investigation or special hearing under the Act, the legal representative may act, in the exercise of an independent discretion, in what the legal representative genuinely believes to be the accused's best interests.

29 I will return in due course to the affect of s16(1) on special hearings under s15, but will first determine whether the Court has power to investigate and determine the preliminary issues concerning the fitness of an accused person to stand trial, including the recording of a finding that the accused is unfit to stand trial, in the absence of the accused from the Court due to his or her ill-health. The first observation to be made concerning that question is that there is nothing in the Act that requires the accused to be present in Court at any time in its processes. The second observation I make is that on occasions the Court does exercise its criminal jurisdiction without an accused person being personally present. An example is when, often by arrangement between the State and an accused's legal representative, perhaps because the accused is unwell or lives a long way from the Court, an order of a formal nature is made, perhaps an order adjourning the hearing or an order discharging the accused from further proceedings on an indictment or a complaint. The Court frequently makes orders that a warrant issue for the arrest of an accused person who fails to appear.

30 I conclude that there is no absolute rule that prevents the Court from conducting hearings in the course of its criminal jurisdiction in the absence of the accused person. Generally speaking, it has a discretion whether to do so or not, subject of course to the requirements of the Code, s369.

31 The Act, s16(1), directs that a special hearing under s15 is to be conducted as nearly as possible as if it was a trial of criminal proceedings. That requires a consideration of the rules for criminal trials that are contained in s369. I am unaware that the section has previously received any attention in this jurisdiction, but the equivalent of subs(1) in the Criminal Code (Qld), s617, was considered by the Court of Criminal Appeal in R v Stuart [1974] Qd R 297. It was held that the provision "unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable" and the provision "in which case [the judge] may order him to be removed" may be read disjunctively as well as conjunctively, so that the Court has power to direct the trial to proceed in the absence of the accused whether or not the relevant conduct of the accused, that makes that course desirable, takes place at the trial or away from the trial.

32 It is clear therefore, that the relevant conduct of an accused person, to which s369(1) refers, includes conduct inside and outside the Court. Consistent with common law authorities, it is also clear that the voluntary absence of the accused from the hearing may amount to conduct in the relevant sense.

33 Section 369(2) gives to a judge a discretion whether or not to permit a person to be absent during the whole or any part of his or her trial. Applying that provision, it seems to me that I have power to conduct a special hearing under the Act, s15, in the absence of the accused, by permitting him to be absent during the whole of the hearing in view of the serious risk to his health if his presence was to be required. Although his counsel's primary submission was that the Court should not conduct a hearing in the absence of the accused, it was also a submission that he not be compelled to be present for the purposes of a hearing. To permit him to be absent is obviously a solution to the problem that is before the Court. I hold that the Code, s369(2), which applies by virtue of the Act, s16(1), gives me a discretion whether or not to permit the accused to be absent from a special hearing that is conducted pursuant to the Act, s15.

34 Finally, I deal with the question whether I should exercise that discretion. The evidence satisfies me that the absence of the accused from the Court will not inhibit the presentation of evidence and arguments on his behalf by counsel. It is clear that even if he is forced to be present, he will be unfit to provide instructions to his counsel, to understand the course of the proceedings, and to give evidence. They are not matters which should prevent the Court from proceeding under the Act. His physical presence or absence will not affect the outcome of the proceedings.

35 The proceedings will not lead to him being found guilty of any of the crimes charged against him. Following a special hearing, a jury may find him to be not guilty, leading to his discharge. If instead it finds him not guilty on the ground of insanity or concludes that a finding cannot be made that he is not guilty, he will in either case become liable to supervision under Pt4. Such a course is unlikely to be disadvantageous to him. Following the hearing, I was informed by the legal representatives of the parties that on 30 March a community treatment order for 12 months with respect to the accused was made under the Mental Health Act 1996, which is one of the options that will be open to the Court if he becomes liable to supervision under the Act. The object of any orders that might be made if he becomes liable to supervision will include his safety and the safety of the public.

36 I regard it as an unsatisfactory state of affairs and contrary to the public interest that the criminal charges against the accused should not be resolved one way or the other. The provisions of the Act should be followed. They are designed for use when an accused person is mentally impaired. I have regard to the likelihood that some mentally impaired persons will be unfit to take any active part in proceedings under the Act and to comprehend what is going on.

37 Accordingly the application by the accused, through his counsel, that the proceedings under the Act should be adjourned indefinitely, is refused. They can be heard satisfactorily notwithstanding the absence of the accused from the Court. He will suffer no prejudice.