High Court of Australia Barwick C.J. Gibbs, Mason, Murphy and Wilson JJ. Ngatayi v The Queen [1980] HCA 18 ORDER Application for special leave to appeal granted. Appeal dismissed. Cur. adv. vult. The following written judgments were delivered:— July 3 Barwick C.J. In my opinion, special leave to appeal should be refused. The application for leave seems to me to have been based on a misconception of the purpose of s. 631 of the Criminal Code W.A., and of comparable provisions in the laws of other States. Such provisions are not intended to ensure that an accused person understands the law applicable in his trial. They are designed to ensure that an accused has the capacity to understand the nature of the trial proceedings to which he or she would be subject if a plea were made or entered. There was in this case no material, in my opinion, upon which it could be concluded that the applicant lacked that capacity. The most that could be said (although, in truth, there was no evidence even to that effect) was that he did not understand that an intent to kill was an indispensable element of the crime with which he was charged. But granted for the sake of argument that this was so, an incapacity to understand the nature of the proceedings was not thereby evidenced. The trial judge, rightly in my opinion, refused to take the opinion of a jury on the question of the applicant's capacity to understand the nature of the proceedings to be had on his trial. However, it should be added that, in any case, a plea of not guilty was entered and in the trial which followed the applicant had the full benefit of placing on the Crown the onus of establishing his intent to kill. The applicant gave evidence and, indeed, gave his reason for his admitted attack on the deceased. His substantial defence was drunkenness to the point where he could form no intent. The jury, under judicial direction to which no exception has been taken, found him guilty as charged. There is no material on which it could be said that he was not fairly and properly tried. The application for special leave should be refused. Gibbs, Mason and Wilson JJ. This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of Western Australia, dismissing an appeal from a conviction for wilful murder. The applicant, Norman Ngatayi, is a full blood aboriginal. He was a tribal aboriginal, but had for some time been living at the La Grange Mission in the north west of Western Australia. He was charged before the Supreme Court of Western Australia, sitting at Broome, that on 9 May 1979 at La Grange Mission he wilfully murdered one Kumbarly White. When he was called upon (through an interpreter) to plead to the charge, his counsel asked that a jury be empanelled in accordance with the procedure provided by s. 631 of the Criminal Code W.A. to find whether he was capable of understanding the proceedings at the trial, so as to make a proper defence. Counsel submitted that the applicant was not so capable because he could not be made to understand that it is a defence to a charge of wilful murder that the accused was drunk and had not formed an intention to kill. He said that the applicant insisted that he was guilty, but submitted that the applicant could not understand the concept, guilty or not guilty. The submission was summed up in the following words:— he does not understand white men's law. In his law a man who kills is always guilty and there is no amelioration. He just cannot understand that in our law if a man is drunk and kills we have gradations of wilful murder, murder, manslaughter. This concept he cannot understand. The learned trial judge refused to apply s. 631. The applicant was again called upon to plead, and he pleaded guilty. However, the learned trial judge refused to accept this plea, and ordered a plea of not guilty to be entered. It appears that in so doing he intended to exercise the power given by s. 49 (1) of the Aboriginal Affairs Planning Authority Act 1972 W.A.. That sub-section is in the following terms:— In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of six months or more the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession. The trial then proceeded and after the Crown case had been closed the applicant was called to give evidence, through an interpreter. At first he could not be persuaded to speak, and his counsel renewed his application that s. 631 should be applied. The learned trial judge did not accede to this request, and eventually the applicant gave evidence. What he said as to the objective facts of the crime was clear enough: he stabbed White four times with a knife, causing his death. He said that he had consumed six bottles of beer, and was drunk at the time. However, the evidence which he gave as to his reasons for killing White, as recorded in the transcript, was obscure and in part unintelligible. There is a note on the transcript stating that because of the poor quality of the recording the accuracy of the transcript cannot be guaranteed. So far as the transcript can be relied on, the applicant repeatedly said that he killed White because White had killed his niece. There is no evidence that White had in fact killed the niece of the applicant, and one would have expected that the Crown would have called evidence to establish this motive for the crime if it had existed. The true position may have been revealed in a record of interview which records the applicant as saying that he was upset because, since he had come from the bush, some of his relatives, including his niece, had died. In answers to cross-examination as to why he killed White, the applicant also said something about the refusal of the mission to give him a schoolgirl who had been promised to him, and something about the bosses at the mission picking on him. He appears to have had a general sense of grievance which he vented on White. In evidence he was not specifically asked, and he did not say, whether he had intended to kill White but the evidence mentioned above as to his reasons for the killing strongly supports the conclusion that the killing was intentional. The learned trial judge put to the jury the applicant's case that the applicant was drunk and did not have the intent to kill White. However, the jury returned a verdict of wilful murder. The applicant was sentenced to death. Special leave to appeal is sought on the sole ground that the learned trial judge should have followed the procedure laid down by s. 631 of the Criminal Code W.A.. Section 631 provides as follows:— If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of twelve men, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether he is so capable or no. If the jury finds that he is capable of understanding the proceedings, the trial is to proceed as in other cases. If the jury find that he is not so capable, the finding is to be recorded, and the Court may order the accused person to be discharged, or may order him to be kept in custody in such place and in such manner as the Court thinks fit, until he can be dealt with according to law. A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence. Section 631 is in material respects in the same terms as s. 613 of the Criminal Code Q.. The language of these sections is based on that used by Alderson B. in R. v. Pritchard [8] . His Lordship was there explaining to a jury the effect of s. 2 of the Criminal Lunatics Act 1800 (39 & 40 Geo. III. c. 94) which contained the words:—"if any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment " Alderson B. said [1] : —"The question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge." He went on to say that there are three points to be inquired into, of which the third is:—"whether he" [the prisoner] "is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence—to know that he might challenge any of you to whom he may object—and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation." The word "comprehend" in this passage meant no more than "understand" (see Reg. v. Podola [2] ). 1. (1836) 7 Car. & P. 303 [173 E.R. 135]. 2. (1836) 7 Car. & P., at p. 304 [173 E.R., at p. 135]. 3. [1960] 1 Q.B. 325, at p. 354. In R. v. Pritchard the prisoner was not insane but deaf and dumb. And the words of s. 2 of the Criminal Lunatics Act "have in many cases since 1800 been construed as including persons who are not insane within the M'Naughten Rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings": Reg. v. Podola [3] . The Codes , however, have set the words of Alderson B. in a context which has no necessary reference to insanity or to incapacity arising from a physical or mental condition. The incapacity to which s. 631 refers may arise "for any reason". It need not be due to any physical or mental condition. For example, if the prisoner cannot speak English, and no interpreter can be found who can translate the proceedings into his tongue, the section would seem to apply. In Reg. v. Grant [4] Wickham J. directed a preliminary issue to be tried under s. 631 where the accused was an aboriginal who did not understand English and it appeared that the interpreter and the accused had difficulty in communicating with each other and that it was impossible to convey to the accused an adequate synonym in his dialect of the terms "unlawful", "guilty" and "not guilty", or to explain their meanings to him. Under s. 631 if the jury find that the accused is not capable of understanding the proceedings, the court may order him to be discharged or to be kept in custody until he can be dealt with according to law. If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such case no doubt he should be discharged. In fact in Reg. v. Willie [5] , Cooper J. ordered the discharge of four aboriginals when no interpreter could be found competent to communicate the charge to them. The report does not however disclose the authority, statutory or otherwise, for taking this course. 1. [1960] 1 Q.B., at p. 353. 2. [1975] W.A.R. 163. 3. (1885) 7 Q.L.J. (N.C.) 108. In Sinclair v. The King [6] Dixon J., in the course of considering the admissibility of a confession made by a person of unsound mind, and dealing with an argument that there was a possible analogy between that case and the situation where an insane person is arraigned, referred to the test applied in R. v. Pritchard [7] and the later cases which have followed that decision and said:—"It does not seem to have been noticed by the text writers how high a degree of intelligence this test might demand if it were literally applied." Sir Owen Dixon did not find it necessary to consider this question further, for he found the suggested analogy of little assistance in deciding the case before him. However it cannot be thought that he was suggesting that the test should be literally applied. The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J. in Reg. v. Presser [8] that the test needs to be applied "in a reasonable and commonsense fashion". Smith J. went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused "need not have the mental capacity to make an able defence". The reference to mental capacity is explained by the fact that these remarks were made in relation to a statute which spoke of insanity, and not of want of capacity "for any reason". The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases such as Reg. v. Robertson [9] and Reg. v. Berry [10] , and accords with common sense. It should be added that it would not necessarily be in the interest of accused persons to raise the standard of capacity required by the section. The question whether the accused is capable of understanding the proceedings at the trial so as to be able to make a proper defence may be raised by the Crown as well as the accused, and the accused will often wish to avoid a finding that he is not so capable, particularly if the want of capacity is said to result from unsoundness of mind. 1. (1946) 73 C.L.R. 316, at p. 334. 2. (1836) 7 Car. & P. 303 [173 E.R. 135]. 3. [1958] V.R. 45, at p. 48. 4. [1968] 1 W.L.R. 1767; [1968] 3 All E.R. 557. 5. (1977) 66 Cr. App. R. 156, at p. 158. The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self-evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence. That of course is the test which s. 631 provides: is the accused capable of understanding the proceedings at the trial, so as to be able to make a proper defence? The section does not require that an accused, before he can be tried, must be capable of understanding the law which governs his case, if that lack of capacity does not render him unable to make a proper defence. The procedure laid down in s. 631 is to be followed if "it appears to be uncertain, for any reason, whether [the accused] is capable of understanding the proceedings at the trial, so as to be able to make a proper defence". This of course does not mean that it has to be proved that it is uncertain that the accused is incapable before the judge is required to empanel a jury. Once a real question as to incapacity is raised, the judge must follow the procedure laid down in the section. If counsel raises an issue of incapacity he should indicate the nature of the facts which in his submission will support the view that the accused is incapable of understanding the proceedings so as to be able to make a proper defence. The judge should then leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make a proper defence. The provisions of s. 49 (1) of the Aboriginal Affairs Planning Authority Act, 1972 appear to cover part of the same field as that dealt with by s. 631 of the Code. It might be thought that s. 631, which deals with the case where the accused is not capable of understanding the proceedings, would include the case in which the accused is not capable of understanding a plea of guilt. In our opinion, however, s. 49 does not effect a repeal pro tanto of s. 631. Section 49 (2) states that the provisions of sub-section (1) are "in addition to, and not in derogation of, any rule of law or practice relating to the admissibility of pleas of guilt ". Those words have no direct application to a section such as s. 631. However, the sections operate at different stages of the proceedings, and both can be given effect. Section 631 is to be applied when the accused person is called upon to plead; s. 49 (1) when he has pleaded. If a question is raised under s. 631, whether by counsel or by the judge, it is to be decided by a jury. If no question is raised under that section, or if a jury is empanelled and finds the accused capable of understanding the proceedings, the accused is then called on to plead, and if he pleads guilty the judge is required to reject the plea if he is satisfied that the accused is a person of aboriginal descent and is not capable of understanding the plea. It is possible that in some cases—and the present may perhaps be one of them—the accused has sufficient capacity to understand the proceedings so as to make a proper defence with the assistance of counsel but that he nevertheless does not understand the plea of guilt because he believes that if he has committed the act he is guilty of the charge, irrespective of the intention with which he acted. In such a case the trial may proceed, but as upon a plea of not guilty. In the present case there is no reason to doubt that the applicant understood the nature of the proceedings and the nature of the evidence. He was capable of giving evidence as to the circumstances out of which the charge arose, including evidence that he was drunk when he stabbed White. His case is that he did not understand the relevant legal concepts. However, his counsel explained to the jury the relevance of intoxication to the question of intent, and the learned trial judge gave a direction on this issue. The fact that the applicant could not understand the law under which he was tried did not mean that he was not able to make a proper defence with the assistance of counsel. It may be added that this is not a case in which an aboriginal is accused of doing something that was not forbidden by his tribal law. What the applicant did in the present case appears to have been wrongful by tribal law as well as by the law of Western Australia. It is, no doubt, a question of high legislative policy whether tribal aboriginals, who are unable to understand the concepts of the ordinary law, ought to be tried under that law. As the law stands, they can be so tried if they are capable of understanding the proceedings at the trial so as to be able to make a proper defence. In the present case the matters stated by counsel for the applicant did not provide any ground on which a reasonable jury could hold that the applicant was not capable of understanding the proceedings so as to be able to make a proper defence. His obvious lack of sophistication, the gap between his manner of thinking and that of the European, and his inability to understand the legal principles involved are matters that will be relevant to the consideration which the Executive of Western Australia will be called upon to give to this case. Counsel for the applicant claimed that the applicant would suffer prejudice because he had pleaded guilty in the presence of the jury panel. However, the judge took the plea in accordance with the ordinary procedure, and no request was made on behalf of the applicant for any departure from the normal practice in that regard; in particular, no application was made before the plea was taken that it should be taken in the absence of the jury panel, or after it was taken that the trial should be before a different panel. The judge, in taking the plea, and then exercising the power given by s. 49, committed no error of law or procedure. In these circumstances no ground has been shown for disturbing the verdict. The question involved in the present case was important enough to warrant the grant of special leave to appeal, but for the reasons that we have given the appeal should be dismissed. Murphy J. The applicant, Mr. Ngatayi, is a tribal aboriginal who had been living at La Grange Mission near Broome in Western Australia. He was convicted of wilful murder and sentenced to death after a trial by jury on 10 and 11 December 1979 at Broome. He was unable to understand English and an interpreter was used at his trial. When he was charged, but before any plea was taken, his counsel requested the judge to proceed under s. 631 of the Criminal Code W.A. which provides: If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of twelve men, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether he is so capable or no. If the jury finds that he is capable of understanding the proceedings, the trial is to proceed as in other cases. If the jury find that he is not so capable, the finding is to be recorded, and the Court may order the accused person to be discharged, or may order him to be kept in custody in such place and in such manner as the Court thinks fit, until he can be dealt with according to law. A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence. Section 631 comes into operation "if it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence". "Uncertain" means "about which one cannot be certain or assured"; "uncertainty" means "the state of not being definitely known or perfectly clear" (Shorter Oxford English Dictionary). His counsel indicated that the uncertainty arose from the fact that Mr. Ngatayi was fixed in his belief, based upon his understanding of his tribal law, that he was guilty because he admitted the killing and also that he was unable to understand the significance of the question of the intent with which the killing was done (which was an element of the charge) and unable to understand the effect which the consumption of alcohol might have had upon that question (he had consumed a great deal of alcohol before the killing). The trial judge refused the application. Mr. Ngatayi was required to plead, and pleaded guilty. The trial judge "refused to accept or admit the plea of guilty". Apparently this was done in conformity with the Aboriginal Affairs Planning Authority Act 1972, s. 49 of which provides: (1) In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of six months or more the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession. The trial judge was entitled to refuse to accept or admit the plea if the person of aboriginal descent from "want of comprehension of the nature of the circumstances alleged, or of the proceedings is not capable of understanding that plea of guilt " However, he did not explain precisely the basis upon which he did this, but said: "In view of the circumstances in which the plea has been made and counsel's submission, I propose to enter a plea of not guilty." The reference to "the nature of the circumstances alleged" appears to mean the charge (as particularized or alleged by the Crown as in committal proceedings). "The nature of the proceedings" refers to the process of trial including the charge and the plea. In my opinion, it appeared "to be uncertain whether" Mr. Ngatayi was "capable of understanding the proceedings at the trial so as to be able to make a proper defence" under s. 631. The fact that the judge considered that the case came within s. 49 of the Aboriginal Affairs Planning Authority Act was enough to make it uncertain within s. 631. The Parliament of Western Australia has commanded that in any such circumstances the question of capacity should be decided by a jury of twelve, not by the judge. If empanelled to try the question, a jury may have found the applicant capable, but that procedure was by-passed. Some attention was directed to the reading of s. 631 together with s. 49. There is no reason why the procedure of empanelment of a jury to try the issue under s. 631 should not have been followed after Mr. Ngatayi had been called upon to plead and the judge had refused to accept his plea under s. 49, because the judge's refusal to accept or admit the plea left the proceedings at the stage described in s. 631 as "when the accused person is called upon to plead". If an accused is then found to be capable of understanding the proceedings s. 631 provides that the trial is to proceed as in other cases. If this happens, apart from extraordinary circumstances, the accused's plea should be accepted, even if it is guilty. There is a grave danger that, by following the procedure adopted in this case, the appearance of justice is preserved by entry of a "not guilty" plea which the accused has not made and that he will then be subjected to a trial of a charge, the nature of which is beyond his understanding. The existence of two systems of law side by side, the prevailing one and aboriginal customary law, with their very different attitudes to guilt and responsibility creates serious problems and the question of how far our laws should apply to aboriginals and how far their law should be allowed to apply to them is controversial. But, when a person from another culture is charged with a breach of the laws of the dominant culture (particularly when a very serious crime is involved), it may be expedient but in some ways unsatisfactory to defer the trial until the accused is able to understand the charge and the proceedings, if ever. It is also unsatisfactory that such a person may be kept indefinitely in custody although, if tried, he might have been acquitted, despite his lack of understanding. The Western Australian Criminal Code has attempted to grapple with the problem, but in my opinion, the statutory path has not been followed. During argument, reference was made to the course of the trial and the evidence given in order to show that Mr. Ngatayi was capable of understanding. Whatever can be deduced from this, it is not the way in which the Parliament of Western Australia directed that the question be decided. Before any trial on an issue of guilt, the issue of capacity is to be decided by a jury empanelled specially to try that issue of capacity at a trial at which evidence, expert or other, might be given (which might not be relevant in a trial on the issue of guilt). The question of whether Mr. Ngatayi was capable of understanding the proceedings was not an issue on the trial of his guilt. It is not satisfactory to excuse the holding of a trial at which this would be the issue because of conclusions based on evidence given at a trial in which it was not an issue. Special leave to appeal should be granted. Because the statutory procedure intended for the applicant's protection has not been followed, the appeal should be allowed.