New South Wales Court of Criminal Appeal CITATION : R v Mailes [1999] NSWCCA 127 FILE NUMBER(S) : CCA 60186/99 HEARING DATE(S) : 18/05/99 JUDGMENT DATE : 18 May 1999 PARTIES : Regina v Graham Edward Mailes JUDGMENT OF : James J at 1; Barr J; Carruthers AJ LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70037/97 LOWER COURT JUDICIAL OFFICER : Newman J COUNSEL : GP Craddock (Applicant) DN Howard (Crown) SOLICITORS : TA Murphy CK Smith CATCHWORDS : Criminal Law and Procedure -; s5F of the Criminal Appeal Act; Ruling made during trial refusing an enquiry into accused's fitness to be tried. ACTS CITED : Mental Health (Criminal Procedure) Act DECISION : Leave to appeal refused. IN THE COURT OF CRIMINAL APPEAL 60186/99 JAMES J BARR J CARRUTHERS AJ Tuesday 18 May 1999 REGINA v Graham Edward MAILES JUDGMENT 1 JAMES J: This is an application pursuant to section 5F of the Criminal Appeal Act brought by Graham Edward Mailes for leave to appeal against a decision of Newman J made on 28 April 1999 refusing to order that an inquiry be conducted under the Mental Health (Criminal Procedure) Act 1990 to determine whether the applicant was unfit to be tried on a charge of murder. 2 The trial of the applicant on the charge of murder had commenced before Newman J and a jury in the Supreme Court at Wagga on the previous day, 27 April 1999. 3 After deciding not to order that an inquiry be conducted, his Honour declined to interrupt the trial so that an appeal against his decision could be brought and determined before any resumption of the trial. The trial has proceeded and is now in its fourth week. 4 We have been informed this morning that the trial has reached the stage when defence counsel's closing address has almost been completed. It is anticipated that the trial judge would be sending the jury out to consider their verdict some time this week. 5 In these circumstances, counsel for the applicant has not sought this morning to proceed with the hearing of the application. Counsel suggested that the present application should be stood over to a call-over to await the result of the trial. 6 It seems to me that the proper course for this Court to adopt would be to refuse leave to appeal. Although Newman J, after deciding not to order an inquiry, said that the matter was a proper matter for the consideration of the Court of Criminal Appeal, his Honour did not grant a certificate under s5(3)(b) of the Criminal Appeal Act . As his Honour did not grant a certificate, an appeal lies to this Court, only with the leave of this Court. 7 As I have already stated, the position adopted by counsel for the applicant this morning has been that counsel does not wish to proceed to-day with a hearing of the application. Even apart from the position adopted by counsel, there are strong reasons for this Court to refuse leave. This Court has a general reluctance to interrupt a criminal trial which is in progress. In the present case the trial has reached an advanced stage. If the applicant is acquitted at the trial, then the application under s5F would become academic. If the applicant is convicted at the trial, then an appeal against conviction can be brought, in which one or more of the grounds of appeal could be based on the refusal by Newman J to order that an inquiry be conducted, on the basis that his Honour's decision constituted or led to a miscarriage of justice. Should it subsequently appear that an inquiry should be held under the Mental Health (Criminal Procedure) Act , then that question can be raised again. 8 In my opinion, the Court should dispose of the present application by refusing leave to appeal. BARR J: I agree. CARRUTHERS AJ: I also agree. JAMES J: The order of the Court will be as proposed by me. * * * * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.