New South Wales Court of Appeal CITATION : DPP v MILLS [2000] NSWCA 236 FILE NUMBER(S) : CA 40420/00 HEARING DATE(S) : 18 August 2000 JUDGMENT DATE : 31 August 2000 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) PARTIES : v JOHN WILLIAM MILLS AND THE DISTRICT COURT OF NEW SOUTH WALES JUDGMENT OF : Meagher JA at 1; Handley JA at 12; Sheller JA at 42 LOWER COURT JURISDICTION : District Court LOWER COURT 99/21/3017 FILE NUMBER(S) : LOWER COURT Moore DCJ JUDICIAL OFFICER : COUNSEL : P G Berman (Claimant) G P Craddock (Opponent) SOLICITORS : S E O'Connor, Solicitor for Public Prosecutions (Claimant) T A Murphy, Legal Aid Commission (First Opponent) CATCHWORDS : CRIMINAL LAW - whether intellectually disabled accused fit to be tried - trial Judge terminated enquiry as to fitness and discharged accused - Judge failed to fully consider procedures under governing legislation - decision not supported by governing legislation - application for remedy in the nature of prerogative relief - Mental Health (Criminal Procedure) Act 1990, s 10(4) - Mental Health Act 1990 (NSW), Ch 5 Part 2 Mental Health (Criminal Procedure) Act 1990 (NSW) LEGISLATION CITED : Supreme Court Act 1970 (NSW) Mental Health Act 1990 (NSW) Craig v The State of South Australia (1995) 184 CLR 163 CASES CITED: Stapleton v The Queen (1952) 86 CLR 358 Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 DECISION : Determination quashed - orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40420/2000 99/21/3017 MEAGHER JA HANDLEY JA SHELLER JA 31 August 2000 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JOHN WILLIAM MILLS & ANOR CRIMINAL LAW - whether intellectually disabled accused fit to be tried - trial Judge terminated enquiry as to fitness and discharged accused - Judge failed to fully consider procedures under governing legislation - decision not supported by governing legislation - application for remedy in the nature of prerogative relief - Mental Health (Criminal Procedure) Act 1990, s 10(4) - Mental Health Act 1990 (NSW), Ch 5 Part 2 The first opponent was charged with sexual assault aggravated by occasioning actual bodily harm. Both the opponent and the victim are intellectually disabled and the offence was alleged to have occurred at a Department of Community Services house where they were both living at the time. The Solicitor-General directed an enquiry as to the fitness of the opponent to be tried pursuant to s 8 of the Mental Health (Criminal Procedure) Act 1990 (the Act). At a hearing before Moore DCJ the opponent successfully applied under s 10(4) of the Act for the hearing to be abandoned, for the charge to be dismissed, and for an order that he be released. The DPP appealed, moving that the Judge's decision be quashed either for want of jurisdiction or for error of law on the face of the record. HELD, (by majority) granting the application, (1) The Judge erred in finding that the procedures under the Mental Health (Criminal Procedure) Act 1990 were not likely to produce a useful result. An examination of its provisions and the related provisions in Chapter 5 Part 2 of the Mental Health Act 1990 established the contrary. (2) The Judge erred in his approach to exercising the power under s 10(4) of the Mental Health Act 1990 because his Honour's orders were not supported by an opinion expressed in the terms of the statute. Section 10(4) does not authorise the summary termination of the proceedings merely because the Judge considers that they are inappropriate having regard to the nature of the person's disability. The condition for making the order depends instead on the Court forming the opinion that "it is inappropriate having regard to … the nature of the person's disability … to inflict any punishment …". (3) The Judge erred in dismissing the enquiry on an assumption that the nature of the opponent's disability would preclude a verdict of not guilty on the ground of mental illness. The alternative verdict that on the limited evidence available the opponent committed the offence charged may have been open which would have authorised the imposition of a limiting term, making the opponent a forensic patient subject to the supervision of the Mental Health Review Tribunal. (4) The errors of law identified appeared on the face of the Judge's reasons and therefore on the face of the record. They demonstrated that his Honour exceeded his authority and fell into jurisdictional error because he misconceived the nature of the function he was to perform. Craig v The State of South Australia (1995) 184 CLR 163. ORDERS (1) Order that the record of the proceedings in the District Court in its criminal jurisdiction in the case Regina v John William Mills 99/21/3017 be removed into this Court; (2) Quash the determination of his Honour Judge Moore of 1 May 2000 dismissing the charge against John William Mills and ordering that he be released; (3) Direct that the proceedings be returned to the District Court in its criminal jurisdiction to be heard and determined according to law; (4) No order as to costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40420/2000 99/21/3017 MEAGHER JA HANDLEY JA SHELLER JA 31 August 2000 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JOHN WILLIAM MILLS & ANOR JUDGMENT 1 MEAGHER JA: I have had the benefit of reading in draft the judgment of Handley JA. I disagree with it. 2 This is an application for an order in the nature of certiori to quash an order made by Moore DCJ purportedly under s.10(4) of the Mental Health (Criminal Procedure) Act 1990. The statutory background, and the relevant facts, are set out in his Honour's judgment. 3 The Statute is, quite clearly, in drastic need of amendment. In the first place, whilst it has provisions in the event that a jury finds an accused person fit to be tried, and other provisions in the event that a jury finds an accused person unfit to be tried, there is no provision for the situation which emerged in the instant case, viz., when a jury is unable to agree on the question of fitness to plead. 4 Even more urgent is the need for the legislation to tell us what exactly is meant in s.10(4) by the words "it is inappropriate…to inflict any punishment." 5 It is clear enough that the process envisaged by s.10(4), a process of dismissing the charge and ordering a release, is one which must take place, if at all, before any trial takes place. 6 However, except in Alice in Wonderland, and possibly in the Republic of China, no question of punishment can arise until there has been a trial resulting in a conviction. 7 There is therefore, something a little odd about speculating on the appropriateness of punishment before any question of punishment can arise. 8 The only solution to this problem I can envisage is to read the subsection as if it said "inappropriate…on the assumption that the accused had been found fit to plead, tried and convicted, to inflict any punishment". And "punishment" (which, needless to say, has no statutory definition) I should think refers to imprisonment or other custodial sentence or pecuniary penalty. 9 In the present case, Moore DCJ, after considering the provisions of the subsection, said: "The subsection necessarily indicates that it is only in the interests of justice (as it affects the community in general and the accused and the particular member of the community affected, mainly the victim which I think it is proper to consider) that the subsection ought to be applied." 10 Thus, there can, in my view, be no doubt that his Honour thought that he was exercising jurisdiction under s.10(4), as he was asked to do by counsel for the accused. That his Honour did not repeat the statutory mantra "inappropriate" or "appropriate" is beside the point. If he, on due consideration, thought it would be inimical to the interests of justice to inflict any punishment on the accused, he must have thought punishment was "inappropriate". The fact that I regard his decision as catastrophic, and the further fact that I think his Honour's reasoning was utterly unintelligible, does not detract from that conclusion. He was exercising his jurisdiction, however ineptly. 11 In my view, the summons should be dismissed with costs. 12 HANDLEY JA: The Director of Public Prosecutions has moved for an order in the nature of certiorari to quash a decision of Moore DCJ given in purported exercise of the power conferred by s 10(4) of the Mental Health (Criminal Procedure) Act 1990 (the Act). The first opponent (the opponent), John William Mills, was charged with the offence of sexual assault aggravated by occasioning actual bodily harm. The indictment alleged that on 6 October 1998 at Smithfield in the State the opponent had sexual intercourse with Phuong Nguyen, without her consent, knowing she was not consenting, and at the time of the commission of the offence John William Mills did maliciously inflict actual bodily harm upon Phuong Nguyen. The offence was alleged to have occurred at a Department of Community Services house at 8 Cassandra Avenue, Smithfield where the opponent and the victim were living at the time. Both are intellectually disabled. 13 The Solicitor-General, acting as the delegate of the Attorney General, directed, pursuant to s 8 of the Act, an enquiry as to the fitness of the opponent to be tried. The enquiry came on for hearing on 21 February 2000 before Mitchelmore DCJ and a jury who were unable to reach a decision and were discharged. The enquiry came on for hearing again on 1 May 2000 before Moore DCJ. Prior to the enquiry commencing, counsel for the opponent made an application under s 10(4) of the Act that the Court determine that it was inappropriate to conduct an enquiry and that the charge should be dismissed and the opponent released. In an extempore judgment the Judge granted the application and made those orders. 14 Counsel for the Director has submitted that the Judge's decision should be quashed either for want of jurisdiction or for error of law on the face of the record. Section 69(4) of the Supreme Court Act, inserted following the decision in Craig v South Australia (1995) 184 CLR 163, provides that the record of a court or tribunal which may be reviewed in certiorari proceedings includes the reasons for the decision of that court or tribunal. 15 The procedure on an enquiry as to the fitness of an accused person to be tried on a criminal charge is provided for in s 10. Sub s (4) provides: "If, in respect of a person charged with an offence, the court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the court thinks proper to consider, to inflict any punishment the court may determine not to conduct an enquiry and may dismiss the charge and order that the person be released". 16 In his reasons for judgment Moore DCJ reviewed the steps which the Act requires to be taken following a finding that an accused person is not fit to be tried. These are complex but it is not necessary to refer to all the procedural steps provided for because it was common ground before Mitchelmore DCJ and Moore DCJ that the opponent was not fit to be tried by reason of his mental disability and that his condition would not improve. 17 If on an enquiry under s 8 the jury (or a judge if the jury is dispensed with) determines that an accused person is unfit to be tried, the court is required by s 14 to refer that person to the Mental Health Review Tribunal (the Tribunal) to determine whether he will become fit to be tried within the period of 12 months following the finding of unfitness. If the Tribunal determines that the person will not become fit to be tried during this period, it is required by s 16(4) to notify the Attorney General and the Director of Public Prosecutions. Under s 18 the Attorney General, after receiving and considering the advice of the Director of Public Prosecutions, may direct that a special hearing be conducted in respect of the offence. If the Attorney General directs a special hearing, the appropriate court is required by s 19(1) to conduct it "for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged". 18 The conduct of the special hearing is provided for in s 21. Sub s (1) provides that it is to be conducted as nearly as possible as if it were a trial of criminal proceedings, and sub s (2) requires the accused to be represented unless the court otherwise allows. Sub s (3)(c) entitles the accused to raise any defence that could properly be raised if the special hearing were an ordinary trial and under sub para (d) the accused is entitled to give evidence. Section 22(1) provides: "The verdicts available to the jury or the court at a special hearing include the following: (a) Not guilty of the offence charged; (b) Not guilty on the ground of mental illness; (c) That on the limited evidence available, the accused person committed the offence charged; (d) That on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged". 19 It is not clear that the opponent's mental disability would support a verdict of not guilty on the ground of mental illness. It was common ground on this application that, in this State, the legal principles to be applied in determining whether a jury (or a judge if the jury has been dispensed with) is entitled to find a verdict of not guilty on the ground of mental illness are those determined by the common law. Section 38 makes this clear because it refers to this as a defence "according to law" without defining what that law is. The second answer of the Judges to the House of Lords following the acquittal of M'Naghten included the following passage (see Stapleton v The Queen (1952) 86 CLR 358, 371): "… it must be clearly proved that at the time of the committing of the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong … If the accused was conscious that the act was one which he ought not to do … he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act which was wrong …". 20 In Stapleton v The Queen (ibid at 372) Dixon CJ, Webb and Kitto JJ continued: "Only a few months after the judges had advised the House of Lords in M'Naghten's case it fell to Maule J to give a direction to a jury on a defence of insanity. The case is Reg v Higginson (1843) 1 Car & K 129, 130 [174 ER 743, 744]. Maule J said:- 'If you are satisfied that the prisoner committed this offence, but you are also satisfied by the evidence that, at the time of the committing of the offence, the prisoner was so insane that he did not know right from wrong, he should be acquitted on that ground; but if you think that, at the time of the committing of the offence, he did know right from wrong, he is responsible for his acts, although he is of weak intellect". 21 The second answer of the Judges to the House of Lords suggests that the critical question is not the cause of "the defect of reason", but "whether the party accused had a sufficient degree of reason (from whatever cause) to know that he was doing an act which was wrong", and this is confirmed by the direction given by Maule J in the second passage quoted. In other words the existence of insanity or a disease of the mind is a sufficient but not a necessary condition for this defence which is also available where the defect of reason is congenital or due to injury. 22 This question was referred to by counsel, but the Court did not hear full argument on it, and it need not be decided in these proceedings. It is possible that a jury (or the judge as the case may be) at a special hearing may decline to find the opponent not guilty on the ground of mental illness and may return a verdict that on the limited evidence available he committed the offence charged. The effect of a finding that an accused person is not guilty by reason of mental illness is provided for in s 39. The court is required to order that the person be detained in such place and in such manner as the court thinks fit until released by due process of law. Such persons become forensic patients as defined by Schedule 1 of the Mental Health Act 1990 and are then dealt with under Chapter 5 Part 2 of that Act. 23 If the special hearing results in a verdict that on the limited evidence available the accused committed the offence, he must be dealt with in accordance with s 23. The court is required to determine whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment or penal servitude ( s 23(1)(a)). Where the court would have done this, it is required by s 23 (1)(b) to nominate a term, referred to as "a limiting term" in respect of that offence, being its best estimate of the sentence the court would have considered appropriate if the special hearing had been a normal trial. 24 If the court nominates a limiting term it is required by s 24 to refer the person to the Tribunal and make such order with respect to his custody as the court thinks appropriate. The Tribunal must determine whether the person is suffering from mental illness or from a mental condition for which treatment is available in a hospital (s24(2)) and must then notify the court (s 24(3)). 25 An accused person, who has been made the subject of an order imposing a limiting term and been detained in a hospital or other place, becomes a forensic patient as defined in the Mental Health Act 1990 who must be reviewed by the Tribunal pursuant to Chapter 5 Part 2 of that Act. Section 80(2) requires the Tribunal, as soon as practicable after the making of any such order, to review the forensic patient's case and inter alia determine whether his safety, or that of any member of the public, will be seriously endangered by his release (s 80 (2)(b)). Section 80 (4) provides that if the Tribunal is of the opinion that the safety of the forensic patient, or any member of the public, will not be seriously endangered by his release it must make a recommendation to the Minister for his release. 26 The Tribunal has a continuing duty to review each forensic patient at least once every six months and may make a recommendation to the Minister "as to the patient's release (either unconditionally or subject to conditions)" (s 82(1)(c)), but is not to do so unless it is satisfied, on the evidence available to it, that the safety of the patient, or any member of the public, will not be seriously endangered by his release (s82 (4)). 27 The Minister is required by s 83 to notify the Attorney General of any recommendation by the Tribunal for the release of a forensic patient, but s 84(1) provides that he is not to be released if, within 30 days after being notified of the recommendation, the Attorney General objects to the person's release on the ground that "the person has served insufficient time in custody or under detention" (s 84(1)(a)). 28 A finding that the opponent was not fit to be tried for this offence would therefore have led to further steps being taken under the Act. These may have resulted in a special hearing under s 21 which could have resulted either in a verdict that the opponent was not guilty on the ground of mental illness (s 22(1)(b)), or a verdict that on the limited evidence available he committed the offence charged (s 22(1)(c)). 29 The trial Judge, in his reasons for determining not to conduct an enquiry but to dismiss the charge and order that the opponent be released, referred to the procedures under the Act, but did not refer to the procedures under Chapter 5 Part 2 of the Mental Health Act. These may not have been drawn to his attention. His reasons continued: "That is a necessarily protracted procedure. However Parliament has seen fit to enact that that procedure should occur unless s 10(4) is applied and a court should not lightly say that simply for the purpose of ensuring that the time of the court and the executive be not taken up with proceedings which are not likely to produce any useful result then the court should simply interfere and put a stop to the proceedings. The sub section necessarily indicates that it is only in the interests of justice (as it affects the community in general and the accused and the particular member of the community affected, namely the victim which I think it is proper to consider) that the sub section ought to be applied … Considering all the evidence, and taking account of the consequences, this is a case in which I feel that, because of the nature of the disability, I should order that the charge be dismissed … If I were to have refused the application under sub section (4) then the matter would simply have gone through all the consequent extensive procedures that could possibly lead to the special hearing (in the nature of a trial) under s 18 of the Act, where there may be a verdict of not guilty on the ground of mental illness … There is no provision in this part of the Act for provision to be made in respect of Mr Mills concerning his future welfare and the welfare of the community. That can only be done in the conjectural event that there is eventually a special verdict of not guilty on the ground of mental illness". 30 In my judgment his Honour misdirected himself in three respects. He appears to have concluded that the procedures under the Act would not be likely "to produce any useful result". A fuller examination of its provisions and the related provisions in Chapter 5 Pt 2 of the Mental Health Act 1990 demonstrates that those procedures could result in the opponent being detained following a verdict of not guilty on the ground of mental illness, or becoming the subject of a limiting term if the verdict was that on the limited evidence available he committed the offence. In the latter event he would remain in custody until his limiting term expired, or he was released following a determination by the Tribunal that his safety and that of the public would not be seriously endangered. 31 In these circumstances, with respect to the learned Judge, it cannot be said that the procedures were not likely to produce a useful result. 32 His Honour again fell into error when he said that: "Because of the nature of the disability, I should order that the charge be dismissed". Section 10(4) does not authorise the summary termination of the proceedings simply because the Judge considers that they are inappropriate having regard to the nature of the person's disability. The condition for the making of the order is that the Court forms a particular opinion which, so far as relevant, is that "it is inappropriate having regard to … the nature of the person's disability … to inflict any punishment …". 33 The Judge may have formed the required opinion but he nowhere states that he had done so, and it appears on the face of his reasons that he formed and acted on a different opinion which, on the terms of the statute, did not support his orders. Compare Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132. 34 The final matter is that his Honour stated that provision for the future welfare of the opponent and the community could only be made "in the conjectural event that there is eventually a special verdict of not guilty on the ground of mental illness". This statement, and his Honour's references to the nature of the opponent's disability, and the unlikelihood that he appreciated the nature and quality of his acts at the time, may indicate that his Honour had formed the opinion that a verdict of not guilty on the ground of mental illness would not be available because of the nature of the disability. However a verdict that on the limited evidence available the opponent committed the offence charged may have been open which would have authorised the imposition of a limiting term, making the opponent a forensic patient subject to the supervision of the Tribunal. 35 It may be that his Honour fell into no such error, but simply failed to refer to the possible verdict under s 22(1)(c) in the course of his extempore reasons. In a case such as this, the Court is bound to act on the reasons given, although they should be given a fair interpretation which makes allowance for their extempore expression and the pressures on trial Judges. However this generosity of approach does not enable this Court to infer that his Honour had additional reasons apart from those he expressed supplemented by any necessary implications therein. 36 Mr Craddock, who appeared for the opponent, advanced a new argument in this Court which, if accepted, may have provided a reason for the Court deciding, in its discretion, not to quash the orders of Moore DCJ. He submitted that the opponent's disability, because of his intellectual impairment, made inevitable a finding that it was "inappropriate … to inflict any punishment on him" and that any loss of his liberty which the Act might authorise in his own interests, or in the interests of the community, was not punishment. 37 In some contexts this submission would have considerable force, but it has none in the context of this Act. Such a construction of s 10(4) would require the Court to dismiss the charge in almost every case where it concluded that the proper finding on the enquiry was that the person was not fit to be tried because of some condition which had existed at the time of the offence. 38 This submission also fails to give proper effect to the Act. Accepting, without deciding, that the detention required by s 39 for persons found not guilty on the ground of mental illness is not a punishment, the same cannot be said of the orders the Court is authorised to make if the verdict is that, on the limited evidence available, the accused person committed the offence charged. In that event s 23(1) requires the Court to nominate a limiting term being its best estimate of the sentence the court would have imposed if the special hearing had been a normal trial and the person had been found guilty. Section 23(2) provides that if the court would not have imposed a sentence of imprisonment or penal servitude, it may impose "any other penalty" lawfully available. Any such "penalty" is subject to appeal in the ordinary way (s 23(3)), and sub s (4) provides: "In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods relating to the offence)". 39 It is clear from the use of the expression "any other penalty" in s 23(2), (3) and (4) that the nomination of a limiting term is treated as a penalty. If this were not so the phrase "any other penalty" in those provisions would have been quite inappropriate. This is supported by s 84(1)(a) of the Mental Health Act 1990, previously referred to, which enables the Attorney General to prevent the release of a forensic patient which would not seriously endanger his safety or that of any member of the public if he considers that he "has served insufficient time in custody or under detention". This shows that a limiting term not only deprives the forensic patient of his liberty, but does so by way of punishment. The new argument raised by Mr Craddock in this Court must therefore be rejected. 40 The errors of law which I have identified appear on the face of the Judge's reasons, and therefore on the face of the record. They also demonstrate that his Honour exceeded his authority and fell into jurisdictional error because he misconceived the nature of the function he was to perform. See Craig v The State of South Australia (1995) 184 CLR 163, 177-8. 41 The Court should make the following orders: (1) Order that the record of the proceedings in the District Court in its criminal jurisdiction in the case Regina v John William Mills 99/21/3017 be removed into this Court; (2) Quash the determination of his Honour Judge Moore of 1 May 2000 dismissing the charge against John William Mills and ordering that he be released; (3) Direct that the proceedings be returned to the District Court in its criminal jurisdiction to be heard and determined according to law; (4) No order as to costs. 42 SHELLER JA: I agree with Handley JA. ****** 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. 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