Fitness

Smith J

At 46

His Honour: In this case there are passages in the depositions which appear to me to raise a real and serious question as to the fitness, the mental fitness, of the accused to stand his trial. In addition, two reports have been obtained by the Crown from medical men and those reports have been shown to me and they do both indicate the presence of serious mental defects in this particular accused youth.

At 47

If an inquiry as to guilt is to be entered upon, it must be one in which the jury is entitled to find guilty or not guilty. And such an inquiry, I consider, should not be entered upon, once a real question as to fitness to be tried has arisen, without that question having been previously resolved by a jury verdict in favour of fitness to be tried. It might perhaps be urged that the two inquiries could be combined, if the jury trying the charge against the accused were directed to find first on the question of fitness to be tried and not to go on to the question of guilt or innocence unless they found the prisoner fit to be tried. That, however, would not meet the difficulty which Mr. Moore has raised, and which the decision in Roberts' Case, supra, was intended to meet. It appears to me, therefore, both in principle and upon the language of the section, that the appropriate course here, now that a real question has arisen upon arraignment, is to direct a separate inquiry by a separate jury as to fitness to be tried.

At 48

There is one further thing that I think should add, having regard to something that was said by Mr. Moore in the course of argument. The cases to my mind show clearly that the word "insane" in s426 does not mean "insane" in the colloquial sense. It means "of impaired mentality to such a degree as to be unfit to be tried". Whether an accused man is insane in that sense is, of course, a very different question from the question whether he is insane in the colloquial sense. A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of the section that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense.

At 48

And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

Mason CJ, Toohey and Gaudron JJ (would allow the appeal)

1. The appellant was tried in the County Court at Melbourne on an indictment containing two counts. The first count alleged that the appellant and three others conspired to import heroin. The second alleged that the appellant and two others conspired to traffic in heroin. The jury returned a verdict of guilty against the appellant and one Allen on the first count. The appellant was acquitted on the second count.

2. On 30 January 1992, before the trial commenced, prosecuting counsel raised with the judge a question which counsel identified as the appellant's "fitness to plead". After reading a report by Dr Arul, hearing evidence from Dr Walton concerning the appellant's mental condition and hearing submissions from the prosecutor, the judge ruled that there was not a serious question as to the appellant's fitness to be tried and that there was no occasion to empanel a jury to determine that question. The appellant then pleaded not guilty and the trial was adjourned to 10 February 1992 when the appellant was represented by counsel, who continued to represent him until the closing stages of the trial.

3. The question of fitness was subsequently raised on two occasions during the course of the long trial. On the first such occasion, the trial judge indicated that there was no reason for him to reconsider his earlier ruling as to the appellant's fitness to be tried. On the second occasion, near the end of the trial, the trial judge concluded that, as the trial was virtually over, there was no need to deal with the question.

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30. It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court's duty to determine the accused's fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry (Reg. v. Presser [1958] VicRp 9; (1958) VR 45; Reg. v. Judge Martin; Ex parte Attorney-General [1973] VicRp 33; (1973) VR 339; Reg. v. Khallouf [1981] VicRp 38; (1981) VR 360; R. v. Pritchard (1836) 7 Car and P 304 [1836] EngR 540; (173 ER 135); R. v. Stafford Prison (Governor); Ex parte Emery (1909) 2 KB 81; R. v. Dashwood (1943) 1 KB 1; Reg. v. Beynon (1957) 2 QB 111.)…

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31. In Reg. v. Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice ((1958) VR at 48.). Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v. Pritchard ((1836) 7 Car and P at 304 (173 ER at 135)), require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.

32. The question whether the accused is fit to be tried is a matter that can be raised by the prosecution as well as the accused (Reg. v. Podola (1960) 1 QB at 349.). It may also be raised by the judge (R. v. Frith (1790) 22 How St Tr 307.). Although s.393 is not as specific as s.631 of the Criminal Code (W.A), which requires a jury to be empanelled for the determination of the issue "if it appears to be uncertain, for any reason, whether (the accused) is capable of understanding the proceedings at the trial" (Ngatayi (1980) 147 CLR at 9.), it cannot be doubted that, in the context of s.393, "(o)nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section." (ibid.) Sometimes the test has been stated in terms of whether there is a reason to doubt the accused's fitness to stand trial (R. v. Gibbons (1947) 1 DLR 45 at 49.). However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried.

The trial judge's ruling at the beginning of the trial

33. It follows that the initial question for our determination is whether the trial judge should have empanelled a jury and left the issue to the jury instead of ruling that no reasonable jury, properly instructed, could find that the accused was unfit to be tried. We share the reservations expressed by the Court of Criminal Appeal about the correctness of the trial judge's decision on this point. Indeed, on the material which was brought to the trial judge's attention, a jury might reasonably have concluded that the appellant was not fit to be tried.

At [35]

In this respect, his Honour was in error. In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried. Of course, that is not to exclude from the jury's consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise. It follows that the appellant's conviction should be quashed and a new trial ordered. Although that conclusion makes it unnecessary to examine the trial judge's ruling which was made towards the end of the trial on 27 May, we should make some comments about it.

Deane and Dawson JJ (would allow the appeal)

1. Subject to one matter, we agree with the reasons for judgment of Mason CJ, Toohey and Gaudron JJ and with the order which they propose.

2. The one matter that we disagree with is their Honours' suggestion that, in trying the question of an accused's fitness to plead or fitness to be tried, a jury may take into account the future, as well as the present condition of the accused. No doubt there is possible inconvenience and expense in embarking upon or continuing the trial of an accused who is presently fit to be tried when there is a prospect that he or she may subsequently become unfit. But to take into account the accused's prospects in that regard in deciding whether to proceed, even if it raised a question which could properly be left to the jury, would be a radical departure from accepted practice, which is to determine the accused's fitness at the time when the question arises ((35) Reg. v. Keary (1878) 14 Cox C C 143.). That practice accords with our understanding of the law. Indeed, at common law, "there was no provision, for (an accused's) insanity at the time of plea being afterwards suggested, though there was provision for a case of subsequent insanity, at any time before execution" ((36) See notes to Reg. v. Southey (1865) 4 F and F 864 at 876 (176 ER 825 at 832).).

Gleeson CJ (would refuse special leave or, should special leave be granted, would dismiss the appeal)

1. The applicant, following a trial in the Supreme Court of the Australian Capital Territory, was convicted of the murder of Colin Stanley Winchester. He was sentenced to imprisonment for life. An appeal to the Full Court of the Federal Court of Australia was unsuccessful. The applicant seeks special leave to appeal to this Court.

2. A challenge to the legality of the trial, based upon a claim that the trial judge was not validly appointed, was dealt with separately, and rejected, by this Court.

3. The grounds of the present application, as amended, are as follows:

(1) At his trial, the applicant was unfit to plead. He was unfit to instruct counsel or to defend himself, because of mental illness.

(2) The Director of Public Prosecutions and Crown Prosecutor knew it was likely that the applicant suffered from mental illness which would render him unfit to plead, to instruct counsel or to defend himself, and should have informed the learned trial judge of the fact.

(3) Because of the applicant's mental illness and his unfitness to plead, the trial miscarried.

4. None of the above grounds had been argued in the Full Court, and no question as to the applicant's fitness to plead was raised before the trial judge. It will be necessary to make further reference, in due course, to the conduct of the trial and the appeal. For the present, it suffices to say that the grounds of appeal argued in the Full Court were not pursued in this Court, and the grounds sought to be argued in this Court represent a substantial departure from the way in which the trial and the appeal were conducted on behalf of the applicant.

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9. It is the opinion of a majority of the Court, consisting of Gaudron J, McHugh J, Gummow J, Hayne J and myself, that the respondent's primary objection should be upheld, and that the further evidence upon which the applicant seeks to rely must be rejected. That being so, the evidence will not be received, and it is unnecessary to consider further questions as to the admissibility or cogency of the evidence, or to permit cross-examination.

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48. As to the minor premise, no issue of fitness to plead having arisen at the trial, and Dr Milton's reports not having addressed any such issue (but, rather, having been written on the assumption that a trial could occur), the most that can be said is that the Full Court had before it material which indicated that the applicant suffered from a form of mental disorder. That did not mean that he was not fit to plead. Appellate courts frequently have before them material of that nature, without it being suggested that they are, on that account, obliged to raise the issue themselves and then pursue it, without the assistance of the parties. Much of the information available to the Full Court indicated that the applicant was fit to plead. The fact that some other information may have suggested the possibility that he was unfit to plead, a possibility which neither party to the appeal was advancing for consideration, did not mean that, in the appellate context, a question of fitness to plead arose for examination.

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50. I would refuse special leave to appeal. However, there is a majority of the Court in favour of granting special leave. In those circumstances, I consider that the appeal should be dismissed.

Gaudron J (would allow the appeal)

51. David Harold Eastman ("the applicant") seeks special leave to appeal from a decision and order of the Full Court of the Federal Court of Australia dismissing an appeal against his conviction for murder. The applicant was convicted in the Supreme Court of the Australian Capital Territory of the murder, on 10 January 1989, of Assistant Commissioner Winchester of the Australian Federal Police.

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56. At the conclusion of the argument as to this Court's ability to receive evidence on the issue of the applicant's fitness to plead, the Court invited argument on the question whether there was material before the Federal Court such that it should have raised that issue of its own initiative. The application for special leave to appeal was subsequently argued on the basis that, if the Federal Court should, itself, have raised the issue of the applicant's fitness to plead, this Court should proceed as if an appeal had been instituted and allow the appeal.

Fitness to plead

57. In order to understand the questions that arise in this matter, it is necessary to say something as to the content of the expression "fitness to plead" and, also, as to its significance in the trial process. In general terms, a person is fit to plead if he or she "has sufficient understanding to comprehend the nature of [the] trial, so as to make a proper defence to the charge." The accused "need not have the mental capacity to make an able defence" but, nonetheless, there are certain matters which he or she must comprehend.

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86. Unless there is material to suggest otherwise, a person is presumed fit to plead. And that is so both at trial and on appeal. At trial however, that presumption is displaced if there is material which raises a question as to that person's fitness to plead. Moreover, if there is a question as to the accused person's fitness to plead, the trial must stop unless and until the appropriate body determines that he or she is fit to plead.

87. Once it is accepted that the law acknowledges that a person who is not fit to plead may also lack the capacity to raise that issue, it must follow that the role of an appellate court differs from that of a trial judge in one respect only, namely, that it looks to the past whereas the trial judge is concerned with events as they are happening. More precisely, if there is material suggesting that the appellant was not fit to plead, an appellate court must inquire whether, at the time of the trial, the appropriate tribunal could not reasonably have found the appellant not fit to plead.

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99. Because the material before the Federal Court raised the possibility that the applicant might not have been fit to plead at the time of his trial, that court, of its own initiative, should have raised the issue of the applicant's fitness to plead and thereafter proceeded to take evidence and to determine whether, at the time of his trial, there was a question as to his fitness to plead.

100. Special leave should be granted so far as concerns the question whether there was material before the Federal Court raising an issue as to the applicant's fitness to plead and the appeal treated as instituted instanter. The appeal should be allowed, the order of the Federal Court dismissing the applicant's appeal should be set aside and the matter remitted to that court for further hearing and determination as to whether there was a question as to the applicant's fitness to plead at the time of his trial.

McHugh J (would refuse special leave or, should special leave be granted, would dismiss the appeal)

102. In my opinion, the application must be dismissed on the ground that this Court, when hearing an appeal, has no power to receive evidence that was not before the court whose order is the subject of the appeal. Once that conclusion is reached, the grant of special leave to appeal would be futile because an appeal could not succeed. Nor do I think that special leave to appeal should be granted to determine whether, on the materials before the Full Court, it should have examined whether the trial judge erred in not investigating the issue of the applicant's fitness to plead. Fitness to plead was not an issue before the trial judge or the Full Court. That being so, the Full Court made no error. Because the applicant cannot point to any error by the Full Court, this Court should not grant special leave to appeal to deal with a question raised for the first time in this Court even if our appellate jurisdiction extends to a case where the point has not been raised in any court before the matter reached this Court.

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165. It follows that, if special leave to appeal were granted, this Court could not receive the evidence which the applicant seeks to rely on in support of his claim that he was unfit to plead to the charge of murder. Because that is so, a grant of special leave to appeal would be futile.

In my opinion, the Court should also reject the claim that special leave should be granted to determine whether the Full Court of the Federal Court should have investigated whether the applicant was fit to plead at his trial. At common law, a trial judge has a duty to inquire whether the accused is fit to plead. In the Australian Capital Territory, the trial judge's functions in respect of fitness to plead are regulated by statute and bear little resemblance to the course of the procedure at common law. But assuming that the trial judge, Carruthers AJ, had an obligation to inquire into the question of fitness to plead if it was fairly raised, it does not follow either that his Honour erred in not inquiring into the matter or that the Full Court had an obligation to determine whether his Honour should have so inquired.

Gummow J (would refuse special leave or, should special leave be granted, would dismiss the appeal)

174. However, I do not accept the submission now made by the applicant in this Court that, in the absence of any ground of appeal raising the question, the Full Court had a separate and distinct obligation of its own to consider whether the trial judge had erred in not of his own motion raising the issue of fitness to plead.

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178. However, the appellate jurisdiction exercised by the Full Court under the Federal Court Act did not include the imposition upon it of an obligation, outside the adversary appellate process, to raise for consideration whether the trial judge had erred in this way. The jurisdiction exercised by the Supreme Court was enlivened by the institution of the prosecution, whilst that of the Full Court was enlivened by institution of the appeal by the accused after his conviction. It was the grounds of appeal, not some further duty imposed upon the Full Court, which indicated the nature of the subject-matter for determination by the Full Court. The Full Court was not obliged to go beyond that which the appellant before it contended amounted to a miscarriage of justice, by asking for itself whether the material before it raised a question respecting the fitness of the appellant to plead at the trial. This was nonetheless so where the Full Court had before it evidence which was not tendered at the trial and was received by the Full Court on other issues, but which the unsuccessful appellant now contends would have supported the case never sought to be made in the Full Court.

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198. The application for special leave should be refused. However, a majority of the Court favours the grant of special leave. There has been full argument. In the result, I would give effect to the reasons I have expressed above by ordering that the appeal be dismissed.

Kirby J (would grant special leave but dismiss the appeal)

283. There is no doubt that the applicant's conduct at the trial was often grossly disruptive, frequently abusive, repeatedly insulting, needlessly offensive and objectively contrary to his own best interests. Having regard to the view which I have reached about the admissibility of the new evidence and having regard to the disturbing content of that evidence, there would obviously be certain attractions for me to hold the trial judge and the appellate court in error in respect of their obligations. It will be apparent that I consider that the new evidence, proffered but rejected, demonstrated a distinctly arguable case that the applicant was unfit to plead and to be tried in the way that occurred. But neither the trial judge nor the Full Court had the new evidence or any evidence touching the precise issue essential to deciding the applicant's mental fitness. The most that was available to them was the applicant's misconduct during the trial and (in the case of the Full Court) certain reports of Dr Milton.

284. Confining myself to the materials which the judges in the courts of trial and appeal had, I am not convinced that they erred in failing to perceive, raise and determine the question of the applicant's mental fitness. No such issue was ever presented. The trial judge, who had the advantage which this Court has never had of viewing the conduct of the applicant over a hearing lasting more than five months, was never moved to raise the question for himself. Clearly enough, he simply regarded the applicant as deliberately disruptive and cunningly manipulative. Despite his long experience in presiding in criminal trials, the trial judge never felt moved, in the absence of the jury, to identify the question of the applicant's mental fitness, whether for submissions or for evidence.

Hayne J (would allow the appeal)

300. Again there is one feature of this statutory scheme which warrants particular notice - that the question of fitness to plead can be raised by the Court as well as by a party to the proceedings. That is entirely consistent with the common law and reflects the fundamental importance of the question. Whether the scheme applies not only to questions of fitness to plead but also to questions of fitness to be tried may be open to argument. It is neither necessary nor desirable to express any view on that issue now.

301. It is said that, in this case, there was no reason for the trial judge to think that the applicant may not have been fit to plead and stand trial. That is, it is said that the course of events at trial raised no real and substantial question about the applicant's fitness to plead and stand trial. For the moment, it is convenient to assume that this was so. But when the matter came before the Full Court, that Court had before it, not only the record of the trial, and the evidence which was adduced at the trial, but also some further material which was not in evidence at the trial.

302. The record of the trial revealed that, for large parts of his trial, the applicant was unrepresented. He dismissed his lawyers and then re-engaged those, or other, lawyers, many times during the trial. The Full Court said that "[i]t would not be an exaggeration to describe [the applicant's legal representation during the course of the trial] as chaotic". The Court concluded that "[i]t cannot be said that the [applicant] acted with justification in so frequently dismissing his lawyers", the applicant being "prepared to see his murder trial proceed without the benefit of counsel if his counsel would not submit to his unreasonable demands"[353].

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318. The fact that neither party raised the issue in the Full Court did not relieve that Court of its separate obligation to consider it in this case. Once it is accepted, as in my view it must be, that the question of fitness stands outside the adversarial process of the criminal trial, the facts that the parties to the proceedings at trial did not raise it, and that the trial judge had no cause to raise it, do not lead to the conclusion that an appellate court, armed for the first time with material which suggests the accused may not be fit to plead, is not itself bound to raise that issue for consideration in the appeal. In this respect the question of fitness to plead is very different from other issues which may cause a trial to miscarry. Those issues must be raised by a party to the proceeding; the appellate court has no obligation (and may have no power) to do so of its own motion. But that cannot be so in relation to the issue of fitness to plead, because the issue is one which raises for consideration the validity of the premise which underpins the conclusion that ordinarily it is for the prosecution to prove its case and for the accused to choose the ground or grounds on which to meet the accusation.

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326. The Full Court not having raised the issue, the prosecution, as respondent to the appeal, had no opportunity of meeting the material which raises the question. In these circumstances the proper order for this Court to make is to grant special leave to appeal, treat the appeal as instituted and heard instanter and allowed. The order of the Full Court of the Federal Court should be set aside and the matter remitted to that Court for further consideration in conformity with the reasons of this Court.

Callinan J (would allow the appeal)

371. It follows that I would, if a foundation could be laid by the tender of evidence in proper form and of sufficient force, (subject to the respondent's right to test that evidence) be prepared to grant the application for special leave to appeal on the ground that the case raised the important question, whether Mickelberg's case should be reconsidered.

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405. It follows in this case, in my opinion, that the Full Court could and should have given consideration to the possibility of making an order that would have had the effect of requiring the applicant's fitness to plead at his trial to be determined by the Tribunal. The precise form of that order does require some further discussion.