Reported Decision : 53 NSWLR 251 126 A Crim R 20 New South Wales Court of Criminal Appeal CITATION : R v Mailes [2001] NSWCCA 155 FILE NUMBER(S) : CCA 60523/99 HEARING DATE(S) : 24 April 2001 JUDGMENT DATE : 19 October 2001 PARTIES : Regina Graham Mailes JUDGMENT OF : Spigelman CJ at 1; Wood CJ at CL at 19; Greg James J at 230 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70037/97 LOWER COURT JUDICIAL Newman J OFFICER : COUNSEL : Crown: G. Smith Applicant: T. Game SC SOLICITORS : S.E. O'Connor David Giddy & Associates CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - murder - fitness to be tried - whether an intellectually disabled offender (not suffering a mental illness) falls within scope of Mental Health (Criminal Procedure) Act 1990 (NSW) - statutory interpretation - history of common law - whether issue of fitness had been raised in good faith - whether additional fitness hearing should have been ordered - miscarriage of justice - new trial Criminal Law Consolidation Act 1935 (SA) s 269H Criminal Lunatics Act 1800 (UK) s 2 Criminal Procedure (Insanity) Act 1964 (UK) s 4 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK) LEGISLATION CITED : Justices Act 1902 (NSW) ss 36, 41(1B)(a), 41(4) Lunacy Act 1878 (NSW) ss 58, 59 Mental Health Act 1958 (NSW) ss 4, 23, 24 Mental Health Act 1990 (NSW) ss 3, 8, 11 Mental Health Criminal Procedure Act 1990 (NSW) ss 3, 5, 7, 8, 10(1)(a), 10(1)(b), 11, 15, 18, 21, 32 DECISION : (1) Appeal allowed.; (2) Conviction and sentence quashed and a new trial ordered. IN THE COURT OF CRIMINAL APPEAL No. 60523/99 SPIGELMAN CJ WOOD CJ at CL GREG JAMES J FRIDAY 19th OCTOBER 2001 Regina v Graham MAILES The appellant was found guilty of murder and sentenced to 25 years imprisonment with a minimum fixed term of 18 years. Prior to appearing for trial, an inquiry was conducted into the appellant's fitness to stand trial pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW). The jury found that the appellant was fit to stand trial. The question of the appellant's possible unfitness was again raised by Counsel before the trial and on separate occasions during the trial, however, the trial Judge declined to order a further fitness hearing. The appellant appeals against the conviction on the ground that the trial miscarried due to (1) the fact that a real question arose at trial as to the appellant's fitness which should have led to a further fitness hearing and (2) the inability of the appellant's counsel to obtain instructions from him. Before determining the issue on appeal the Court was required to consider whether an accused who is intellectually disabled, but who does not suffer from a mental illness, can qualify for a fitness hearing under the Mental Health (Criminal Procedure) Act 1990. HELD: (Appeal allowed): 1 Ground 1: Scope of the Mental Health (Criminal Procedure) Act 1990 In light of the legislative history and the approach which the common law has consistently taken, concerning the fundamental right of a person placed on trial to have sufficient understanding of the proceedings so as to be able to make a proper defence, the Mental Health (Criminal Procedure) Act should not be read down so as to exclude the intellectually disabled. To otherwise construe the Mental Health (Criminal Procedure) Act would be to depart from the extended meaning given to the expression 'mental illness' in the context of fitness to be tried that has been developed by the common law. R v Young (1999) 46 NSWLR 681; Radway v The Queen (1990) 169 CLR 515 applied. R v Pritchard (1836) & C & P 303; R v Dyson (1831) 7 C & P 305; R v Presser [1958] VR 45; Ngatayi v The Queen (1980) 147 CLR 1; Kesavarajah v The Queen (1994) 181 CLR 230; Eastman v The Queen (2000) 74 ALJR 915 considered. 2 Ground 2: Refusal to order a further fitness hearing Once the question of fitness had been raised in good faith there should have been a further fitness hearing. There was clearly a serious question as to the appellant's fitness, which became even more evident from the bizarre behaviour displayed throughout the course of the trial. Also of importance was the fact the Crown prosecutor accepted that the question of fitness raised by Counsel for the appellant had been raised in good faith. The question of fitness is not determined conclusively at the pre-trial hearing, or at any one hearing during the trial. The question remains open, at least until the jury retires to consider their verdict and possibly until that verdict is returned. While there is a statutory presumption of fitness once a person has been found fit, it still remains necessary for a trial Judge to interrupt proceedings and to direct that there be a further inquiry if a genuine question as to fitness re-emerges, no matter how inconvenient or disruptive that may be. R v Zhang [2000] NSWCCA 344; R v Tier [2001] NSWCCA 53 applied. R v Khallouf (1981) VR 360 considered. Proposed Orders (1) Appeal allowed. (2) Conviction and sentence quashed and a new trial ordered IN THE COURT OF CRIMINAL APPEAL No. 60523/99 SPIGELMAN CJ WOOD CJ at CL GREG JAMES J FRIDAY 19th OCTOBER 2001 Regina v Graham MAILES JUDGMENT 1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Wood CJ at CL in draft. I agree with his Honour's reasons. I wish to add a few brief observations. 2 I agree with his Honour's analysis of the history of the common law and legislation on the subject of fitness to plead. I agree with his Honour's conclusion that the references to the question of a person's unfitness to be tried where appearing in several sections of Part 2 of the Mental Health (Criminal Procedure) Act 1990 ("the Act"), should not be read down so as to be limited to unfitness by reason of mental illness or mental disorder. This is not a case in which the title of the Act (with its reference to "mental health") or the heading of the Part (with its reference to "mental disorders") is of any assistance in the construction of the general words "unfitness to be tried". 3 The scheme for which Part 2 provides is, as his Honour shows, the most recent mechanism for deciding matters for which the common law and statute law has long made provision of a character which cannot be confined in this manner. The issue of fitness for trial relates to fundamental principles of our criminal procedure, as emphasised most recently in the judgments of the High Court in Eastman v The Queen (2000) 74 ALJR 915, to which Wood CJ at CL refers. The Parliament has not purported to define, let alone by implication to restrict, the facts, matters and circumstances which could render a person unfit to stand trial. 4 In the present case an inquiry was conducted under s10(1)(a) of the Act. In his reasons for refusing a further inquiry, when a fresh application was made on behalf of the Appellant pursuant to s10(1)(b) of the Act, Newman J said: "If it be that the nature of the matters raised relating to the question of unfitness to be tried was different on an application such as the present, I would regard that as being a fresh application. In other words, an application falling within section 10(1)(b). But where the evidence which is sought to be adduced in the prospective inquiry is, in nature, no different from that which was raised before, albeit evidence coming from different witnesses, I am of the view that in those circumstances, it not being a matter going to a new inquiry, all that is being sought, it seems to me, is to reventilate a matter which has already been determined pursuant to an inquiry arising under section 10(1)(a)." 5 On the second occasion during the trial that Mr Golding, who appeared for the Appellant before Newman J, raised the issue of unfitness, his Honour said: "There is no other matter which Mr Golding can put before me which is fresh material, as against the material which was brought in the original proceedings before the jury; fresh in the sense that it means that some change has occurred. Accordingly, I decline that application for the type of reasons which I gave on the first day of this trial". 6 Nothing in the Act states that once any inquiry into fitness has occurred, no further inquiry can be permitted unless the evidence is in some way "different" or "fresh". The relevant provisions are set out in the judgment of Wood CJ at CL and it is unnecessary to set them all out again. 7 The possibility that more than one inquiry into fitness may occur in the course of the same proceedings is contemplated by the legislative scheme. Subsection 7(1) expressly states that the question of a person's unfitness "may be raised at any time" and subs 7(2) makes it clear that nothing in s7 prevents the question being raised "on more than one occasion". That matter is put beyond doubt by the express provision of s15 that: "15. It is to be presumed: … (b) that a person who has, in accordance with this Part, been found fit to be tried for an offence continues to be fit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case." 8 By s10(1), a Court "must" conduct an inquiry once "the question" of "unfitness" is raised, but this obligation operates "except as provided by this section". The prospect of multiple applications is controlled by express provision in subs 10(2) which prohibits the Court from conducting an inquiry in certain circumstances. It states: "The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith." 9 In my opinion, the "good faith" referred to in subs 10(2) is that of the accused. The formulation that a "question" of "unfitness" is "raised", first appears in s5 of the Act which permits such a question to "be raised by any party to the proceeding" or by the Court itself. The words "by any party" should be construed to mean "by or on behalf of any party". 10 Counsel appearing for a party may "raise" such a matter on behalf of the party. The exigencies in which an issue of this character will often arise are such that the question of instructions from an accused is problematic, as was the situation in the present case. Nevertheless, the "question" of "unfitness" is "raised" by or on behalf of the "party" and not by counsel. "Good faith" in subs 10(2) refers to the "good faith" of the person by or on behalf of whom the "question has been raised". 11 Where, as sometimes occurs, apparent unfitness is accompanied by an insistence on the part of the accused that he or she is fit, legal representatives may reveal their doubts and the basis for those doubts to the trial judge. The question of unfitness can then be "raised … by the Court" within s5. 12 In the present case Newman J said: "No suggestion was made of any lack of good faith on the part of either Mr Golding of counsel or Miss Evers, the solicitor for the accused". 13 This finding was based on the fact that during the course of the argument before his Honour, the Crown Prosecutor said "counsel has raised the matter in good faith". Although conduct by trial counsel may be relevant to the issue of good faith, this "concession" by the Crown was not necessarily determinative of the good faith of the Appellant. The question may not be raised in good faith "by a party" even though the party's legal representatives are acting in perfectly good faith e.g. because they have been deceived by their client. 14 In any event, this is not a matter that can be determined by concession. The Court must reach a state of positive satisfaction that the issue has been "raised in good faith", or else the statutory prohibition operates. The issue of "unfitness" falls outside the adversarial process of a criminal trial. (See Eastman v The Queen (supra) at [294] per Hayne J.) 15 In the present case, there may have been a basis for concluding that the Appellant was acting intentionally to derail the proceedings. On this appeal the Crown sought to support the trial on this basis. If his Honour had formed the view that the Appellant was acting in this way, then a finding that it did not "appear" to the Court that "the question of unfitness has been raised in good faith" would no doubt have been made. The Crown's submission in this Court that "in effect" Newman J made such a finding should be rejected. His Honour did not address the statutory formulation in his reasons for judgment. 16 It may well be that in a particular case a second application based on identical or indistinguishable evidence will lead a court to fail to conclude that "the question has been raised in good faith". That is not what happened here. His Honour posed a different and, in my opinion, impermissible, test i.e. whether the evidence was or would be "different" or "fresh". 17 His Honour accepted that the question had been raised in good faith by the legal representatives. This was not, as I have indicated above, necessarily determinative. Nevertheless, his reasons suggest that it did appear to his Honour that the question had been raised in good faith "by the party" i.e. on his behalf. Accordingly, the statutory prohibition in s10(2) did not operate and, therefore, the mandatory terms of s10(1) did operate. 18 I agree with the orders proposed by Wood CJ at CL. 19 WOOD CJ AT CL: On 27 April 1999, the appellant appeared for trial in the Supreme Court at Wagga Wagga upon an indictment charging him with murder. On 19 May 1999, he was found guilty and sentenced to imprisonment for twenty-five years, with a minimum term fixed of eighteen years, each to commence from the date of his arrest, namely 28 March 1996. 20 Prior to appearing for trial an inquiry into his fitness was conducted before the trial Judge, Newman J and a jury. The jury in that inquiry, on 19 February 1999, found him fit to stand trial. To that hearing I will return. 21 The question of his possible unfitness was reventilated by his Counsel, before commencement of the trial, on 19 April 1999, and again on two separate occasions during the trial (on 28 April and 5 May 1999). In the circumstances later outlined, Newman J declined on each occasion to order a further fitness hearing. The appellant now appeals against the conviction on the grounds that the trial miscarried by reason of: a) the fact that a real question arose at trial as to the appellant's fitness which should have led to a further fitness hearing; b) the inability of the appellant's legal advisers to obtain instructions from him. HISTORY OF THE PROCEEDINGS 22 The course which the defence of the proceedings took pre-trial and during the trial was the subject of evidence led by way of a lengthy affidavit from the appellant's solicitor, Tania Evers. In addition, the court has the advantage of the transcript and of affidavits from the Crown Prosecutor and Counsel who appeared for the appellant at the trial. 23 In substance, this material reveals that Ms Evers first saw the appellant in about June 1996. After a conference of about one hour, she formed the view that she could not take proper instructions from him, as his answers were frequently non responsive and to her mind contradictory. As a consequence, she telephoned Professor Susan Hayes and requested that she assess his fitness to stand trial. 24 On 15 July 1996, the appellant appeared in the Local Court at Albury. A local Legal Aid solicitor, who gave him advice in relation to bail, was advised that he no longer wished her to appear for him. When he was subsequently spoken to about this he made it plain that he regarded her "sacking" as humorous. 25 Ms Evers next saw him in August 1996. Again she concluded that she was unable to obtain any sensible instructions as he continued to give what appeared to be contradictory answers and seemed unable to understand what she was saying to him, or to appreciate the purpose of the pending committal proceedings. 26 Immediately prior to the commencement of the committal hearing on 2 December 1996, he informed Ms Evers that she was sacked, and that he intended to appear for himself and to apply for bail. He did not seem to understand that witnesses had been required to attend who would need to be cross examined, asserting that he would "tell his story and get bail". Notwithstanding his stated intention, Ms Evers attended the bail hearing and, with the encouragement of his support person, managed to persuade him that he needed legal representation. 27 During almost the entirety of the committal, the appellant slept, at times lying on his seat. When asked what was happening he responded, at times 'I don't know', and at other times he would laugh and say, "I sleep". 28 When discussing with him the evidence of one witness, Dennis Wheatley, which was considered to be of potential value to his case, he again made contradictory observations, indicating to Ms Evers that he did not understand the significance of the matter raised. 29 The committal was stood over part heard to 21 April 1997. Prior to that date, and again on 21 April, the appellant informed Ms Evers that she was sacked. He had, at that stage, been taken off his medication and appeared to be very agitated. Despite repeating his desire to represent himself, he eventually agreed, with apparent reluctance, that Ms Evers appear for him. 30 A fitness trial was later fixed at the direction of the Attorney General, pursuant to S8 (1) of the Mental Health (Criminal Procedure) Act 1990, for 16 February 1998. In advance of the hearing Ms Bell SC (as she then was), Ms Evers and Ms Mulaney visited the appellant at Lithgow gaol. During the visit he observed that he "sacked (Ms Evers) all the time because he was angry and upset because lots of people are talking and he was going to court too many times." He added that he found court boring so he slept a lot and he could not understand what was occurring. When asked what he expected would happen at the fitness hearing he said that the legal representatives talk and the police talk and "when the judge or police prosecutor says you're innocent, then I walk." 31 The fitness hearing for 16 February 1998 was vacated and refixed for 11 May 1998. When Ms Evers saw him that day and asked him what he understood the hearing was about, he said "guilty, not guilty". When asked what had happened at the committal he said "don't know really, hard, too hard." When asking him about a potential issue in the trial, concerning whether or not he may have moved the body of the deceased, but had not been involved in a way that meant that he was a principal in the killing, he supplied answers indicating that he believed that this would still have amounted to murder. When asked about accidental killing, he replied that for this "you can get the death penalty". 32 On other occasions when discussing with him what would be involved in the proof of his guilt of murder, he quoted advice said to have been given by prison officers or other prisoners, which indicated a lack of understanding of criminal liability of a principal or accessory, and a lack of appreciation of the proper role of his legal advisers. In those circumstances, Ms Evers said that she found it impossible to explore with him matters relevant to issues of mental illness and diminished responsibility. 33 The fitness hearing for 11 May 1998, was also vacated and refixed for 15 February 1999. 34 On 11 February 1999, just prior to the adjourned fitness hearing, Ms Evers inquired of the appellant as to whether he knew why they were to be in court. Although he acknowledged that the purpose of the hearing was to decide if he was fit to be tried, he said that he did not know what that meant, and added that he would probably be asleep like last time. Ms Evers asked him a number of questions directed towards gaining an appreciation of what would occur. His answers indicated at best a very superficial understanding of the purpose or nature of the proceeding, and particularly of his fitness, at one point volunteering that people have been talking about whether he is fit or not fit. He said "I'm fit, look at me, look how healthy and strong I am." 35 The fitness hearing began on 15 February 1999 and concluded on 19 February 1999, with a finding that the appellant was fit for trial. During the hearing evidence was called from two forensic psychiatrists, Drs. Lucas and Westmore, and from a neuro-psychologist, Professor Suzanne Hayes. In addition, evidence was presented of the interviews with police in which the appellant had participated, and from his support person, in relation to the way in which he had been functioning in the community. 36 Dr Westmore acknowledged that the appellant was moderately disabled intellectually, but thought him fit to stand trial. It seems to have been his clear impression that the appellant was "independently minded", and that he had been functioning in the community at a higher level than his psychological test results would suggest. He accepted that as a result, he might become bored during a trial and go to sleep or behave in a disruptive way. Otherwise, he took into account the fact that he had given police two accounts that were exculpatory of himself, although contradictory; and that he acknowledged having given an incorrect version to police. It was his opinion that he appeared to have an adequate understanding of the "Presser requirements"; that he had been able to function in the community in the sense of using public transport and operating a bank account; that he could attend and concentrate during an interview of one hour's length; and that he did not display any sign of mental illness. 37 Professor Hayes gave evidence of her test results which rated him at the level of moderate intellectual disability, (at a level lower than 99.9% of the population) which placed him at an age of about four and a half years in the communication domain, at age of nine years and two months in the daily living skills domain, and at a level commensurate with his cognitive abilities in the socialisation domain. She said that it was her conclusion that while he was able to give answers which, at face value, would suggest a knowledge of the charge and trial procedure, when pursued in more depth it became evident that such understanding or knowledge as he had was too superficial and incomplete for him to qualify as fit to stand trial. As she put it: "A. the impediment to the trial is the impediment of his understanding of what is going on and what evidence is being presented, and whether that evidence is consistent or not consistent with what he knows to be the case, whether he can respond to that evidence, whether his receptive language is sufficient that he can understand what other people are doing … whether he understands that some people are presenting evidence on his behalf or other people are presenting evidence which is opposed to him, so all of those things are relevant to his ability to participate effectively in his own defence." 38 Dr. Lucas said that, based on the questions which he had put to the appellant concerning the charge and legal process, it was his opinion that the accused was unfit to stand trial. He said his intellectual disability was obvious. He thought that a number of his answers were inconsistent, and that his understanding of what was involved in the trial was incomplete and confused. His assessment was encapsulated in the following passage: "Despite Mr Mailes' increased knowledge of legal proceedings and related matters, I have serious doubts about his fitness to stand trial. His knowledge of legal proceedings and the personnel involved is minimal, at times contradictory, for example, about the role of a prosecutor, and I doubt whether he is intellectually able to make great use of the knowledge. He is aware of problems in following and comprehending legal proceedings and given his considerable degree of intellectual disability, lack of interpersonal skills and his limited knowledge, I have serious doubts as to whether he will be able to sufficiently understand what is happening in a trial and to operate adequately with his legal representatives. In short, his level of understanding of what is going on and his ability to participate in the presentation of his defence will be severely limited." 39 Dr. Lucas noted that fitness is "very much … a today thing.. in that fitness is how you are at the time of your trial". He indicated that any interview with police had to be looked at in its context, so far as he was being spoken to in a structured situation about things in his recent knowledge and of a concrete nature, whereas a determination as to fitness had to be made "looking at quite different things". Additionally, he said that telling a story and changing it (as had occurred in this case where the appellant had initially provided an alibi when interviewed, and had then abandoned that in favour of a version in which he and the person who had carried out the offence had changed clothes), provided no great measure of intellectual capacity. 40 Dr. Lucas thought that the independence of mind which Dr. Westmore had noted, could rebound in the opposite direction, so far as it could lead to inappropriate behaviour, such as sending psychiatrists away and sacking legal representatives. Similarly, an ability to function in a basic way in the community, he said, did not mean that he could manage in court. 41 Ms Enid Hope, a support worker with the Department of Community Services who had known the appellant for some time and who acted as the appellant's support person, gave evidence of his behavioural difficulties while a resident of the Woodstock Centre at Lavington. She confirmed that she had seen him sleeping during the committal hearing, and that he had said to her that he was bored and did not understand what was happening. 42 Ms Evers said that during the first two days of the fitness hearing, the appellant had appeared to be dozing on and off. By the third day, he fell into a deep sleep. When she gave evidence, however, he was alert. After she had done so, he was very hostile towards her and said that she was sacked. It appears that he had concluded from the fact that she had gone into the witness box, that she was working for the Crown, and wanted him locked up. 43 When he was visited by Ms Evers on 3 March 1999, with a view to obtaining instructions for the trial, he walked out of the room in anger, observing, "I don't have to listen to this". On 22 March 1999, by which time he had been transferred to the Long Bay Prison Hospital, the appellant gave her a note, written by someone on his behalf, again advising that he did not want her or counsel to help him any more in court and that they were both sacked. 44 After giving her this note, he retired to a cell. After being persuaded to come out, he emphasised that Ms Evers had hurt his feelings. Ms Evers attempted to discuss the matter with him, but once again it seemed to her that he was unable to appreciate the significance of the evidence which had been given at committal. 45 In March, Ms Evers sought the assistance of Professor Hayes in assessing the reliability of the ERISP. She also sought a copy of a report prepared by Ms Penhallurik, a speech pathologist and psychologist employed by the Department of Corrective Services, which, it was thought, could be relevant to issues relating to his comprehension. She received a message that the appellant had refused to give an authority for the release to her of this report, and that she had again been sacked. 46 On 6 April 1999, the appellant refused to come out of his cell to see Ms Evers. An attempt was made via the support person to persuade him to change his mind. When she spoke to him he refused to listen, giggled and said that he was going to represent himself. 47 On 9 April 1999, Ms Evers sent a letter to the appellant by fax, in effect noting his withdrawal of instructions, reminding him that his trial was only two and a half weeks off, and seeking his advice as to what he wanted her to do with the brief of evidence. Later that day, Ms Evers received a message from the gaol advising that the appellant did want her to represent him, and that he would see her on Sunday 11 April. 48 On that day she attended at the Long Bay Prison hospital with Mr. Terry Golding, of Counsel. She raised with the appellant the advisability of seeing Professor Hayes, but he refused to do so because "she was working for the Crown". He added that all of the doctors were doing a job for the Crown and wanted him locked up. 49 In the course of questions by Mr. Golding, the appellant gave answers which appeared to convey very little understanding of what had occurred at the committal and at the fitness hearing or what might happen at the trial. By way of example are the following exchanges: In relation to the committal "Mr. Golding: What happened at the Albury Court? Mr. Mailes: I slept, they drugged me right up. I can't remember much. … Mr. Golding: Did the judge do anything? Mr. Mailes: He said thank you, you can go now. In relation to the fitness hearing: "Mr. Golding: What about when you went to the Sydney court? Mr Mailes: The judge was all dressed up. Mr. Golding: what did he look like? Mr. Mailes: Like a person who comes out of a bottle. Mr. Golding: what was the judge doing? Mr. Mailes: He was listening in, fitness to plead, I reckon I am. … Mr. Golding: What did the Doctors say? Mr. Mailes: I don't know. I was given medication three times a day there. I try to stay awake and listen in … Again in relation to the committal Mr. Golding: Going back to Albury, what happened there. Could you understand what people said? Mr. Mailes: No, people talk too quickly. I want to understand, they're saying bad things about me. … Mr. Golding: Did you understand what they were saying? Mr. Mailes: No. They asked hard questions, I couldn't understand it. I'd remember if I heard it. Mr. Golding: when you were in Albury, could you tell Tania if anything was wrong? Mr. Mailes: No I couldn't tell Tania because I couldn't understand it. Further in relation to the fitness hearing Mr. Golding: In going back to the Sydney court, what was the jury doing? Mr. Mailes: They were listening in. Mr. Golding: Why were you there? Mr. Mailes: I don't know, fit to plead, for trial or not. Mr. Golding: what does that mean? Mr. Mailes: I don't know … Mr. Golding: what does unfit mean? Mr. Mailes: Forensic patient, not guilty, mentally ill. He then added: I don't want to be a forensic patient, I want to go home." In relation to the pending trial Mr. Golding: What do the doctors want to do. Do they like you? Mr. Mailes: No, they want to lock me up. If I'm made a forensic, I'll be in for 3 years. … Mr. Golding: Do you want to talk to the judge? Mr. Mailes: No. Mr. Golding: What about the police prosecutor? Mr. Mailes: No, he'll ask me hard questions. I can't understand the questions. … Mr. Mailes then said that they should bring back the death penalty. Mr. Golding asked him why and Mr. Mailes said 'it'll stop crime, it'll stop rape, it'll stop murder and stop rock spiders'. Mr. Golding said that 'what if they get it wrong', Mr. Mailes laughed and said something like 'hadn't thought about that.' … Mr. Golding: What'll the judge do? Mr. Mailes: He says guilty or not guilty. Then he described how the judge hits the table with a hammer and says 'lock him up'. Mr. Golding: Does the judge do anything else? Mr. Mailes: He has meetings with the police prosecutor at morning tea and lunch time and talks to them to see if I'm guilty or not guilty. Mr. Golding: How'll the judge know if you're guilty or not guilty? Mr. Mailes: I don't know, guess I guess. Mr. Mailes then added: He'll try to work it out. Mr. Golding: What about the jury? Mr. Mailes: They take a rough guess. 50 When Mr. Golding attempted to obtain instructions on some of the matters raised in the Crown brief the appellant replied that the questions being asked were "too hard". At the end of the interview he remained firm that he would not let Professor Hayes see him, as she was working for the Crown. 51 On 19 April 1999, Mr. Golding again raised with Newman J, in Sydney, the issue of the appellant's fitness to stand trial, indicating that it had recently been learned that he had been seeing a treating psychiatrist over the preceding twelve months, and that a conference had been arranged with that psychiatrist (Dr. O'Dea) which may lead to an application to reopen the issue. Further consideration of the matter was deferred. 52 On 27 April, the trial began in Wagga Wagga. Following the Crown opening, Mr. Golding and Ms Evers spoke to the appellant in the cells. It was explained that there were some things that he had to know in relation to the law. Ms Evers considered that he seemed to regard this discussion as humorous. 53 He seemed unable to understand an explanation that was given in relation to the significance of the lies, which it was asserted that he had told to police, or the explanations which were given in relation to diminished responsibility, mental illness, and the implications of being made a forensic patient. In the course of the discussion concerning these issues he indicated that he would not give evidence because it was embarrassing due to his inability to talk properly. 54 He also indicated, by his answers, that he had not understood what had been said by the Prosecution during the Crown opening, and that he could not understand him. He also indicated that he could not hear properly. At the end of the day Mr. Golding informed the trial Judge that the concerns which had been raised in Sydney on 19 April, had not been resolved, and that he was still unable to obtain instructions in relation to significant matters. 55 On 28 April at 2pm Mr. Golding formally raised the issue of fitness with the trial Judge, and sought a fitness inquiry. This was rejected and the trial proceeded. An application for a stay to allow the matter to be tested in the Court of Criminal Appeal was refused, and the hearing resumed. To this application and to the reasons for its refusal, I shall return. 56 Thereafter, and for much of the trial, the appellant behaved in a totally bizarre and inappropriate fashion, to such a degree that for the following two days a diary note was kept, by Ms Evers' assistant, of his behaviour. 57 It is not necessary to go into the detail of the many incidents which occurred save to note, in a summary way, that on this day, in an almost continuous way, the applicant yawned loudly, swayed, rocked backwards and forwards in his seat, looked back at the gallery and grinned at those present, passed wind loudly and repetitively, made a variety of snorting, choking, singing, growling, and quacking noises, and laughed. At one stage when Detective Smart answered a question in the affirmative, he rose to his feet, yelled out "yep", and turned around looking at those in Court with a grin. When Newman J adjourned the proceedings at the end of the day he stood rigidly to attention and saluted. 58 On 29 April the appellant continued to behave in the same bizarre and disruptive fashion, causing the trial judge to warn him that he risked being charged with contempt and locked up unless he desisted. When Ms Evers spoke to him about this warning the applicant appeared not to appreciate what was being said, instead indicated that he believed the judge had concluded he was guilty of the murder. 59 During the day the applicant swore repeatedly and made offensive gestures and threatening remarks to his Honour, at times while his Honour was speaking to the jury and at other times while evidence was being given. Throughout the day he burped, whistled, sang, yawned, blew raspberries, quacked, spat in the dock, laughed, and made jocular comments while crime scene videos were being shown. His behaviour, however, improved to a degree when his support person was allowed to sit with him and to supply him with lollies. 60 On 30 April the applicant's bizarre behaviour resumed. At various times he threw crayons and lollies or their wrappers around the Court, his targets included the Crown prosecutor and his own Counsel. Otherwise, he continued to swear, to make noises, to sing, and to make bird noises and offensive gestures. He also imitated witnesses and Court officers, and threatened to fight one witness. 61 On 3 May the appellant began proceedings by knocking on the walls of the dock, causing those present to rise, much to his amusement. Thereafter he copied answers from the witnesses and sometimes volunteered his own answers. Otherwise his singing, insulting and abusive language and gestures and peculiar noises continued. At one stage he commenced to do push ups and squats in the dock. At various times he told the trial Judge that he was a 'shit' or a 'rockspider' or 'a wanker'. He also spent much of the day talking loudly about golf balls, laughing and interrupting witnesses. He appeared to become more aggressive as the day progressed, particularly towards Det Hayes and the Crown Prosecutor, having to be restrained when he lunged at the latter. At one stage his Honour noted that his conduct was "starting to affect the conduct of the trial," and cautioned him that if he persisted in this way he may have to be restrained. 62 On 4th May, it would appear, the appellant remained relatively quiet, non disruptive, and awake. 63 On 5th May, however, the appellant resumed singing and making other noises during the playing of the ERISP. At the short adjournment his Honour warned him that if he sought to disrupt the trial deliberately he would waive his right to be present. When the trial resumed his disruptive behaviour continued unabated. An application was made by the Crown for him to be removed at least during the playing of the video of the ERISP. 64 Mr. Golding, in the absence of the jury, again raised the question of the applicant's fitness to be tried, pointing out that he was effectively uninstructed. In this respect, he noted that Dr. Westmore had been provided with information as to the way in which the trial was progressing. Dr. Westmore's opinion, it was reported, remained unchanged upon the basis that the appellant was selectively directing his vituperation towards the trial Judge and the Crown Prosecutor, or at least principally towards them. 65 Mr. Golding also pointed out the impossible task he would have of obtaining instructions if the appellant were removed from Court, having regard to his inability to read or write. In this regard, it was his submission that the appellant was not deliberately obstructing the proceedings, rather, he argued, that they were totally opaque to him and all that he was doing was alleviating his boredom. The possibility was also raised of there being some imbalance in his medication. 66 As subsequent enquiry has revealed, there was some force in that suggestion. Prison Medical Records indicate that the appellant was not given his medication (Valium) between 27 April and 3 May, or on 5 or 6 May. Subsequently, the records suggest that he was medicated, at least until 12 May. 67 The application for a fitness hearing was again refused upon the basis that nothing new had been shown. The application of the Crown was, however, allowed, and an order was made that the appellant be excluded from the courtroom during this phase of the evidence. In making that order, his Honour found that the appellant was trying deliberately to obstruct the proceedings by "his unseemly and outrageous behaviour". 68 When the applicant was spoken to in the cells, over the luncheon adjournment, he did not seem to understand what had happened, or why he was being excluded. When the situation was explained to him by Counsel he responded by with withdrawing his instructions, and said that he would conduct the trial himself. When proceedings resumed, Mr. Golding informed the trial judge of these developments. While that happened a message was received from a Corrective Services Officer that the applicant was 'going bananas' in the CCTV room where he was listening to the proceedings. 69 At that point, a question having arisen as to whether Counsel had instructions to continue, the hearing was adjourned so that appropriate advice could be received from the Bar Council, and possibly from the Guardianship Tribunal. Mr. Golding made it clear that he thought the appellant incapable of knowing what he was doing, and did not know whether his retainer had been effectively withdrawn. 70 On 6 May the question of representation was considered. When his Honour asked the appellant whether he was still instructing Mr. Golding and Ms Evers, he gave conflicting answers, but when pressed further, he indicated that it did "not worry" him if they appeared for him. He was informed by his Honour that if he was prepared to be quiet he could remain in the courtroom, otherwise he would be excluded. He indicated that he found it too hard to be quiet and said that he wanted to go back to the Junee Corrections Centre. That was refused, and he was required to remain in the cells during the remainder of the playing of the ERISP. At the end of the day he threatened to 'neck himself'. The Prison Medical Service was warned and an assurance was given that a check would be made as to whether he was taking his medication. 71 On 7 May the appellant informed Mr. Golding and Ms Evers that he would be a "good boy", and that he wished to be back in court. His Honour obtained an assurance from him that he would be quiet. He was allowed to return to the dock and he then spent much of the day asleep. When awake he remained quiet. This, it may be noted, was a day for which an entry concerning the supply of medication appeared in the prison health records, whereas there was no such entry for the previous two tumultuous days. 72 For the remainder of the trial until 19 May, the appellant remained fairly subdued, sleeping at times although not as consistently as during the committal and fitness hearings. On one occasion, however, he became uncontrollable and declined to leave his cell after the luncheon adjournment. This followed his aunt giving evidence. 73 On 25 May when Ms Evers spoke to the appellant at Long Bay Prison Hospital, following his conviction, he said "this is serious isn't it?" He added "I want to tell you what happened" - going on to explain that he had touched the victim's body to see whether she was alive, and that he had then helped the killer to move the body. When asked why he had not disclosed this before the trial, he said "I thought that was murder". 74 An affidavit was provided by Mr. Golding confirming Ms Evers' account of the events leading up to and during the trial. It was his assessment, that he had been unable to obtain instructions from him. 75 Mr. Paul Conlon, the Deputy Senior Crown Prosecutor who appeared for the Crown at the trial, agreed that the appellant had behaved disruptively during the trial. However, he noted that at times he had appeared to be prompting Miss Evers' assistant to note down instances of his misbehaviour, and that when he had been allowed back into Court from 7 May (that being the date from which it would appear that he was regularly medicated), he had not displayed any further significant disruptive behaviour. He acknowledged that at times the appellant had been asleep, but on other occasions, he said, he appeared to be feigning sleep. 76 Dr. Lucas provided a further report after the trial in which he expressed the opinion that the appellant's disruptive behaviour had probably not been aimed at thwarting the legal process: "It was more likely due to boredom, an inability to make full sense of (the) proceedings, and … being unable to adequately engage in them." 77 He saw no reason to change his original opinion that the appellant had been unfit to stand trial, and he thought that his unfitness was permanent. His opinion is encapsulated in the following passages of his report: "It is my opinion that during his trial Mr. Mailes' behaviour indicated that he could not adequately participate in proceedings, was unable to follow them in a meaningful way and did not appreciate how his conduct might affect how he was viewed by members of the jury. When his medication was changed his ability to participate was further reduced by drowsiness and sleeping. … The events which occurred during his trial: disruptive behaviour, sacking of legal representative and inability to instruct, were largely predictable on the basis of his intellectual and communication deficits and previous conduct. His behaviour at trial was more extreme than one might have predicted, probably because he was more sedated during his fitness hearing. However sedation has its own risks in that it induces drowsiness and sleep, further reducing Mr. Mailes' ability to participate meaningfully in legal proceedings. 78 It is convenient to return to the two applications which were made during the trial for the fitness issue to be reventilated. Application of 28 May 79 A report from Dr. O'Dea was tendered on 28 April, in which he recorded that he had been in charge of the appellant's four admissions to the Long Bay Prison Hospital complex between May 1997 and March 1999. These admissions had resulted from the significant behavioural problems which had been observed. 80 His opinion was as follows: "7. I do not consider that Mr. Mailes is fit from a psychiatric perspective to stand trial. 8. It is my view that he has ongoing significant problems with his understanding of the court process and the roles of various agents including himself in that process, and the nature and implications of his various pleas, as outlined in the "Presser Criteria". Although he has been consistently able to give glib and superficial answers to direct questions about these matters, he conveys no sense of even a rudimentary functional understanding of them. In addition, he has been unable to show a significant increase in general knowledge about these criteria despite frequent discussion and information about them. 9. From my dealings in his case he is likely to have major difficulties in following the evidence in the case and instructing counsel accordingly. I am aware of the difficulties in gaining and maintaining sensible instructions from Mr Mailes. At interview on 21 April 1999, Mr. Mailes was candid in clearly conceding that he had no idea what has gone on in court to date and gets bored and falls asleep when in court. 10. Mr. Mailes has had, and is likely to continue to have specific difficulties being able to cope with the stress of the court process. He has continually requested medication to help him cope with court appearances and has become increasingly distressed in the lead up to court appearances. It is of note that he has displayed marked deterioration in his behaviour when under stress in the prison system and that at these times he has required admission to the Long Bay Prison Hospital Complex in a highly aroused and disorganised state. 11. The above problems with his fitness to be tried appear directly related to his intellectual impairment. 12. It is not anticipated that he would become fit to be tried in the near future." Application of 5 May 81 The application was also supported by an affidavit from Ms Evers which substantially recited the various incidents between 15 July 1996 and 12 April 1999 previously noted. Annexed to it was a copy of the report from Ms Penhallurick. She noted the extent of the appellant's sensori-neural deafness, which she said was likely to cause him to hear sounds only as muffled, to have difficulties in discriminating among sounds, and to be erratic and fluctuating in his capacity to hear. It also noted the relatively severe communication difficulties which he had associated with his intellectual disability, his incompletely repaired cleft palate and hair lip, and his hearing deficit. 82 No additional evidence was presented in a formal sense, although Mr. Golding recounted from the Bar table his concerns in relation to the appellant's fitness to plead. These included the fact that the conferences with him had been able to proceed only at a rudimentary level; that the applicant's attention span was insufficient for an extended or exhaustive conference; that attempts to take instructions in relation to mental state issues invariably met with the response that their retainer had been with withdrawn that it was impossible to discuss with the appellant tactical issues or to obtain instructions of the kind needed for a decision whether or not to call him to give evidence; and that his questioning of the appellant as to what had occurred on the first day of the trial had suggested that his understanding was "totally opaque". 83 Counsel submitted that Dr. O'Dea's greater familiarity with the appellant, gave him a greater insight and ability to express an opinion as to his fitness than was available to Drs. Lucas and Westmore. 84 Counsel concluded the submission by observing: "His legal representatives' concerns and beliefs are that he simply has no idea of what is happening in Court." Later he observed: "…. I am telling your Honour that I cannot get instructions from him and I say that in good faith". 85 The Crown opposed the application on the basis that the issue had been determined in February 1999, and that in order for a further hearing to be directed, the trial judge "would have to be satisfied that there is now available some fairly compelling evidence on the issue which was not able to be brought before the jury (at the earlier fitness hearing)." That evidence, it was submitted, was lacking. 86 Responsibly and fairly, however, the Crown Prosecutor accepted that he had "not stood up and said that the application is not made in good faith", adding "I am totally unable to say that". 87 In dismissing the application, his Honour found that the evidence which Mr. Golding now sought to adduce was of the same kind as that placed before the earlier hearing. His Honour dealt with the submission of Mr. Golding, to the effect that the issue having been raised, and there being no question of mala fides, an inquiry had to be ordered, as follows: "Section 10(1) is disjunctive in that it gives two instances where an inquiry can be raised: (a) where the Attorney-General determines that an inquiry should be conducted, or (b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of (an) offence. The question, in fact, was raised before the accused was arraigned. An inquiry was duly held. If it be that the nature of the matters raised relating to the question of unfitness to be tried was different on an application such as the present, I would regard that as being a fresh application . In other words , an application falling within section 10(1)(b) , but where the evidence which is sought to be adduced in the prospective inquiry is, in nature, no different from that which was raised before, albeit evidence coming from different witnesses, I am of the view that in those circumstances, it not being a matter going to a new inquiry, all that is being sought, it seems to me, is to reventilate a matter which has already been determined pursuant to an inquiry arising under section 10(1) (a). In these circumstances, I am of the view that a fresh inquiry should not be conducted and I rule accordingly." 88 It may be observed that, to this point in the proceeding the appellant had not been behaving in the disruptive and offensive manner which characterised the proceedings over the following days, and which led to the next application on 5th May. That later application was somewhat different, so far as it also needed to be considered in the context of the realistic possibility that the appellant would have to be excluded from the Courtroom, or sedated. 89 On this occasion, his Honour, in dismissing the application, observed that there was no other matter which Counsel could put before him which was "fresh … fresh in the sense that it means that some change has occurred." The application was accordingly dismissed "for the type of reasons" given on 28 April. His Honour did not, in relation to this application, deal with the question of good faith. However, it is clear, from the reasons given in relation to the application by the Crown for the appellant to be removed from the Courtroom, that he had come to the conclusion that he was deliberately obstructing the proceedings. 90 In the light of that extensive review of the somewhat extraordinary and difficult course which the trial took, I turn to the grounds of appeal, which as I have already observed, are closely related. The appeal commenced, in a sense, where the trial had left of, so far as Mr. Game SC for the appellant observed that, while he did not think that he and his instructing solicitor had instructions from the appellant in "the normal sense", they believed that they had instructions "in some general sense" to conduct the appeal. The appellant was present while the matter was heard. He did not indicate any view one way or the other as to whether he wished the matter to proceed. He remained quiet and well behaved, but gave no indication as to whether he was listening to the argument, or whether he had any comprehension of what was occurring. I am prepared to assume, in the circumstance outlined, that the appeal was instituted and pursued with his general authority. Refusal to order a further fitness hearing 91 The submission advanced by the appellant in this respect was simple, namely that the question of fitness having been raised by Mr. Golding in good faith, as the Crown Prosecutor had conceded, there should have been a further fitness hearing on 28 April, or if not then, on 5 May. Put another way, it was submitted that his Honour addressed the wrong question, in so far as he appears to have assumed that unless some new material had been placed before him, additional to that led on the original fitness hearing, then all that was being sought was a reventilation of the S10 (1)(a) inquiry, and not a S10 (1)(b) inquiry. The current Legislation in New South Wales 92 The circumstances in which a Court is required to hold a "Fitness hearing" are defined in the Mental Health (Criminal Procedure) Act 1990 ("the Procedure Act"). Of immediate relevance are the following provisions: "5: The question of a person's unfitness to be tried for an offence may be raised by any party to the proceedings in respect of the offence or by the Court. 7. (1) The question of a person's unfitness to be tried for an offence is, so far as practicable, to be raised before the person is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence. (2) Nothing in this section prevents the question of a person's unfitness to be tried for an offence from being raised on more than one occasion in respect of the same proceedings. 8. (1) If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. 10. (1) If, in respect of an offence: (a) the Attorney General determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted; or (b) the question of person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence, the Court must (except as provided by this section), as soon as practicable after the Attorney General's determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence; (2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith . 15. It is to be presumed: a) that a person who has, in accordance with this Part, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case. b) that a person who has, in accordance with this part, been found fit to be tried for an offence continues to be fit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case. 93 These provisions take their place within an Act which bears the long title "An Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions"; and within a Part (Part 2) headed "Criminal Proceedings in the Supreme Court and District Court Relating to Persons Affected by Mental Disorders" (the emphases are mine). 94 The Procedure Act is linked to the Mental Health Act 1990, ("the Health Act") so far as persons who are found unfit, or who become the subject of a special hearing, in accordance with Sections 18 to 21 of the Procedure Act, become "forensic patients", who then fall within the application of Chapter 5 of the Health Act. In each case such persons are subject to review and assessment by the Mental Health Review Tribunal, ("the Tribunal") a tribunal constituted under the Health Act. Scope of the Act 95 An issue of some importance arises in this context, which seems to have been assumed at trial, and which was not initially addressed in this appeal. It concerns the question of whether an accused who is intellectually disabled ie developmentally disabled, but who does not suffer a mental illness within DSM IV or within the colloquial meaning of that expression, can qualify for a fitness hearing under the Procedure Act. Although the question which arises in this appeal relates specifically to a person with a congenital or developmental disability, it applies equally to a person whose disability is of a cognitive kind that was caused by accident or physical disease, and is unrelated to mental illness. 96 By reason of the fact that this appeared to the Court to be a potentially live but unaddressed issue after it had reserved its decision, further submissions were sought from Counsel. That it is a live issue, arises from the circumstance that all three psychiatrists who examined the appellant described his condition as one involving a "moderate intellectual disability" associated with a "communication deficit of a relatively severe degree", and said that he did not suffer from a mental illness. 97 Returning to the legislation, it may be noted that the Procedure Act, does not provide any definition of the expressions "mental illness" or "mental disorders" which appear respectively in the long title to that Act, and in the heading to Part 2. 98 The expression "mental condition" included in the long title is, however, defined in S3 of that Act, as is the expression "forensic patient". This Section provides: " mental condition" means a disability of mind not including either mental illness or developmental disability of mind" while "forensic patient " has the same meaning as in the Mental Health Act 1990. The definition given of a "forensic person" under the Health Act, as provided by Section 3, and the Dictionary contained in Schedule 1, includes: "a) a person who is detained in a hospital, prison or other place pursuant to an order under S10 (3)(c) 14, 17(3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or Section 7(4) of the Criminal Appeal Act 1912 (including the subsection as applied by Section 5AA(5) of the Act". 99 To complete the legislative definition of terms, having a possible relevance to the issue which arises, it may be noted that the Health Act defines each of the expressions "mental illness" and "mental disorder" in Schedule 1, in ways which do not appear to include the intellectually disabled: "' mental illness' means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: a) delusions b) hallucinations c) serious disorder of thought form d) a severe disturbance of mood e) sustained or repeated irrational behaviour indicating the presence of any one of more of the symptoms referred to in paragraphs (a)-(d). ' mentally disordered person ' for the purposes of this Act set out in section 8 (which contains the criteria for involuntary admission or detention in a hospital) means a person who satisfies the relevant criteria set out in Chapter 3. 100 S11 of the Act (which is also contained within Chapter 3) provides that: "(i) a person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following: … (j) that the person has developmental disability of mind ". 101 It may be noted that the long title of the Health Act is "an Act to make provision with respect to the care, treatment and control of mentally ill and mentally disordered persons and other matters relating to mental health". 102 Next, it is to be noted that Part 3 of the Procedure Act, headed "Summary Proceedings before a Magistrate relating to Persons Affected by Mental Disorders" employs the same terms, (in the italicised portion of the heading), as those appearing in the heading to Part 2. However, the operative, or empowering Section for that Part (S 32) expressly recognises three categories of persons, as falling within its reach, namely a person who is "developmentally disabled", a person who is "suffering from mental illness", and a person who is "suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990." 103 The manner in which the cognate legislation has been framed in New South Wales invites the question whether, as a matter of statutory interpretation, it has had the unexpected and no doubt unintentional result of excluding from its reach, persons suffering from a "developmental disability of mind." 104 So far as any ambiguity arises in relation to the reach of Part 2 of the Procedure Act, I observe that, in accordance with authority, it is permissible to have regard to the long title so as to resolve any ambiguity: Pitt Son & Badgery Ltd v Sydney Municipal Council (1908) 24 WN 203 at 204 per Street J; Birch v Allen (1942) 65 CLR 621 at 625-6 per Latham CJ; R v Bracknell Justices; Exparte Griffiths (1975) 2 All ER 881; Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 at 477, and Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 563. 105 Similar principles apply to headings to Parts which can constrain the scope of a section contained within that Part where an ambiguity arises: Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16 per Latham CJ; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 209 - see also the summary of the relevant principles succinctly given by Murray CJ in Ragless v Prospect District Council [1922] SASR 299 at 311. 106 Additionally, the purposive approach to statutory interpretation needs to be borne in mind when an ambiguity arises or where it is necessary to determine whether more than one interpretation is open: Mills v Meeking (1990) 169 CLR 214; and Saraswati v The Queen (1991) 172 CLR 1: See also S 33 Interpretation Act 1987 (NSW). 107 In this regard it is also trite law that it is open to have regard to the historical setting of the Statute in order to identify the object of the legislature: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 394 and 410; as well as to the second reading speech and other relevant extrinsic materials: S 34 of the Interpretation Act 1987 (NSW), ie subject to the constraints recognised in decisions such as Re Australian Federation of Construction Contractors: Ex parte Billing (1986) 68 ALR 416; The Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 at 396; Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 at 450 to 452; R Bolton re Beane ex parte (1987) 162 CLR 514 at 517 to 518 and Brennan v Comcare (1994) 122 ALR 615. 108 Finally, in relation to relevant principles of statutory interpretation, it is the case that where one or more Acts form a scheme of legislation, as in my view the Health Act and the Procedure Act do, it is proper to have regard to each of them for the purpose of construing expressions used in any one of them: Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723 per Kirby P. Particularly is that appropriate where the Bills for the two Acts were introduced together and assented to on the same day, or where they have progressed in tandem: Trade Practices Commissioner v Collings Construction Co Pty Ltd (1994) 130 ALR 115. In the present cases the two Acts in question were each assented to on 1 June 1990 and commenced on 3 September 1990. 109 So far as the researches of Counsel and of the Court have revealed the issue posed has not been the subject of consideration in this State, although the decision of Dunford J in DMA (2000) NSWSC 1051, a case with significant similarities, came close to dealing with it. The accused in that case had a similar full scale IQ to that of the present appellant, and expert psychiatric evidence was called to the effect that her fitness to be tried was significantly limited by that disability. However, there was also evidence to the effect that she had been diagnosed as having a conduct disorder, a dissociative disorder, an intermittent explosive disorder, as well as being psychotic and having a condition "consistent with schizophrenia". 110 Although the intellectual deficit, the destractibility of the accused, and the difficulties which she was considered to have in following the proceedings, and in giving meaningful instructions, were the reason for the finding of unfitness by Dunford J, who decided the issue sitting without a jury, there was also evidence available as to the presence of a mental illness in the strict sense. 111 It is, in the circumstances outlined, necessary to revert to some of the history in relation to the manner in which the common law, and legislation have dealt with the question of fitness. DEVELOPMENT OF THE COMMON LAW The United Kingdom - origin of the rule 112 The origin of the rule concerning the fitness of an accused to stand trial appears to lie in the procedural formalities of the medieval courts of law. Without an opening plea and the accused's consent to trial by jury, a trial could not take place. Accordingly, it became the practice for the Courts to determine whether a failure of a defendant to enter a plea was due to malice, or whether he or she was mute by the visitation of God. A critical distinction was drawn between these two classes of accused persons. Until 1772, a defendant who stood mute of malice was subjected to peine forte et dure, while in the case of an accused who was mute by visitation of God, a plea of not guilty was entered and the trial was respited. 113 Between 1772 (12 Geo 111 C 2) and 1827 (Criminal Law Act 1827 (UK)), a plea of guilty was recorded in relation to an accused found by jury to have stood mute of malice. After 1827 the Court was permitted to order the entry of a plea of not guilty in such a case. 114 The importance of comprehension (or lack of it) for a fair trial was early recognised. Sir Mathew Hale recorded: "If a man in his found memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his [f]renzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment …. And if such person after his plea, and before his trial, become of non sane memory, he shall not be tried; or, if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution. But because there may be great fraud in this matter, yet if the crime be notorious, as treason or murder, the judge before such a trial or judgment may do well to impanel a jury to inquire ex officio touching such insanity, and whether it be real or counterfeit. If a person of non sane memory commit homicide during such his insanity, and continue so till the time of his arraignment, such person shall neither be arraigned nor tried, but remitted to gaol, there to remain in expectation of the king's grace to pardon him". (Hale, The History of the Pleas of the Crown 1736 Vol 1 at pp 34-5). 115 In the early cases three types of individuals became closely linked: the insane, the deaf mute and the individual who decided it was not in his best interests to plead. (Grubin D: "What constitutes fitness to plead?" [1993] Criminal Law Review 748 at 750). The deaf mute and the insane defendant, however, presented different problems for the Courts. 116 Although a trial could take place where the accused was deaf, based upon the not guilty plea, there was concern that it may not be appropriate to carry on with the proceedings. Many deaf mutes would not have been able to communicate effectively and they may have appeared to the Courts as if they were mentally defective. Hale wrote that the deaf-mute defendant was: "….in presumption of law an ideot, and that rather, because he hath no possibility to understand what is forbidden by law to be done, or under what penalties: but it can appear, that he hath the use of understanding which many of that condition discover by signs to a very great measure, then he may be tried, and suffer judgment and execution; tho great caution is to be used therein." (Hale: The History of the Pleas of the Crown, Vol 1 p 34. 117 Consequently, the trial of the deaf-mute could take place, but only if the court exercised care to ensure that he or she was not mentally defective. If the defendant was found to be mentally defective, then he or she could not be tried. Before a deaf-mute could be properly tried, the jury was accordingly required to consider whether the muteness was genuine, and to make a decision about his or her mental ability. 118 In the case of the insane defendant, who was either mute in respect of his plea or could not plead sensibly, only the first of these steps had to be taken. The question was not one of mental ability, but whether or not the madness was real. If it was, trial was postponed pending recovery. 119 In the case of Frith for High Treason (1790) Howell's State Trials Vol 22 (1783-1794) the Lord Chief Justice, Lord Kenyon informed the jury, which had been empanelled to determine whether the accused was 'in a fit situation to plead": "… the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing; for, however guilty he may be, the inquiring into his guilt must be postponed to that season, when by collecting together his intellects, and having them entire, he shall be able so to model his defence as to ward off the punishment of the law." 120 However, it appears that this early distinction became somewhat blurred, one commentator observing: "…. prior to Dyson and Pritchard , a clear distinction was made between defendants who were mentally defective and those who were insane in respect of their fitness to plead. Neither was in a position to have a fair trial; in the former case, trial should not take place as the accused did not have the faculty to understand what was going on, while in the latter the trial should be postponed, not cancelled, because the accused was temporarily unable to use whatever faculties he did have to defend himself adequately. This critical distinction, established by Hale and Keynon was lost in Dyson and Pritchard and has yet to be recovered." (Grubin D: " What constitutes fitness to plead?" [1993] Criminal Law Review 748 at 751). To these two decisions, I next turn. 121 In R v Dyson (1831) 7 C & P, 305 the defendant was a deaf mute. She was indicted in 1831 for the murder of her child. After hearing evidence that the defendant had always been deaf and dumb, the jury found her mute by the visitation of God. By making signs to a witness who was acquainted with her, she was, however, able to deny the charges. A plea of not guilty was recorded, but it proved impossible for her to understand the more complex procedure of challenging jurors. One witness gave evidence that he had instructed her in the dumb alphabet, but she was not advanced enough to make words. He swore that although she was incapable of understanding the nature of the proceedings, he had no doubt that in time she might be taught the means to do so. 122 Parke J, relied upon Hale's previous statement of law and directed the jury that: "….if they were satisfied that the prisoner had not then, from the defect of her faculties, intelligence enough to understand the nature of the proceedings against her they ought to find her not sane ." 123 The jury was satisfied that she could not understand the proceedings and she was subsequently declared insane. She was detained under the Criminal Lunatics Act 1800 at her Majesty's pleasure. This case accordingly set two crucial precedents: firstly, in that it brought "idiocy" under the umbrella of insanity by finding that those found unfit to plead were "not sane"; and secondly, in establishing intelligence and ability to communicate, as the foundation upon which decisions about fitness to plead were to be made. 124 The linkage, which was made between idiocy and insanity, however, involved something of a misconstruction of Hale. In the passage quoted to the jury, Hale was referring to the madman in his temporary phrenzy, not "the ideot" with a permanent impossibility of understanding. For Hale and Kenyon "the ideot" and "the madman" were distinct, requiring separate tests in relation to their fitness for trial. Cognitive ability was important for the former, but for the latter the issue was whether or not the insanity was genuine. 125 The seed sown in Dyson flowered in R v Pritchard (1836) 7 C & P 303, where the defendant, who was a deaf mute, was tried for the capital felony of bestiality. The trial Judge ordered that the jury be empanelled to decide whether the defendant was mute by the visitation of God. The jury found that he was so. They were then sworn to decide whether he could plead to the indictment. It was proved that he could read and write, having been taught in the Deaf and Dumb Asylum in London. The indictment was given to him, which he read, and by making a sign, he pleaded not guilty. The jury then found that he was able to plead. But was he fit to plead? 126 In order to deal with this question, Alderson B, ordered the jury to decide whether the defendant was sane or not. On this question they were given what was to become the classic direction in relation to fitness to plead: "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….There are three points to be inquired into: - First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings of 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. Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able to make proper his defence to the charge; you ought to find that he is not of sane mind ." The jury found that the defendant was not of sane mind by reason of mental deficiency, and hence "not capable of taking his trial". He was then ordered to be detained in accordance with the 1800 Act. 127 Alderson B's classic direction was relied upon by the High Court in Governor of Stafford Prison ex p Emery (1909) 2 KB 81, a case of a deaf mute who could neither read nor write nor communicate by sign language. On appeal, it was argued that he should not have been made the subject of an order under section 2 of the Criminal Lunatics Act because there was no evidence that he was "insane". 128 Lord Alderstone CJ, rejected that submission, stating at p 86: "It seems to me that when one looks at the words which follow the word 'insane' in s.2 of the Act of 1800 - 'so that such person cannot be tried upon such indictment' - we ought to construe the word 'insane' with reference to the question whether the prisoner can or cannot be tried upon the indictment; and we ought not to say that Parke J and Alderson B and the other judges who considered the matter misdirected the jury as to the test of insanity for the purpose of this Act. I cannot find in any text-book which I have seen that any doubt has ever been thrown upon the view acted upon by those learned judges'." 129 Other decisions which support this proposition include R v Berry (1876) 1 QBD 447; R v Whitfield (1850) 3 C. & K. 121; R v Robertson 52 Cr App R 690 at 692. 130 These cases firmly established that individuals found unfit to plead were to be considered insane on arraignment. This meant that the unfit to plead defendant was to be dealt with under the provisions of s 2 of the Criminal Lunatics Act 1800 (UK), which provided that: "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 … it shall be lawful for the Court … to direct such finding to be recorded, and thereupon to order such persons to be kept in strict custody until His Majesty's pleasure shall be known." 131 Whether or not the extended and possibly artificial judicial interpretation of "insanity" as used in the Criminal Lunatics Act 1880, has survived the passage of legislation in this State, lies at the heart of the question which arises in this appeal. 132 It has been suggested that the broad interpretation was developed as a compassionate response to the problems of those who, although not insane or mentally ill within the ordinary meaning of those terms, would have faced insuperable problems in presenting a defence at a time when legal aid was unavailable, and when the consequences of conviction included hanging or transportation: (C Emmins "Unfitness to Plead: Thoughts prompted by Glenn Pearson's Case" (1986) Crim LR 604 at 612-613). Further Development of the Law in the United Kingdom 133 In the years before the Criminal Procedure (Insanity) Act 1964 (UK) there were attempts to construct a common law discretion, in the trial judge, to postpone the determination of fitness to plead until the general issue of guilt or innocence had been tried. In R v Roberts [1953] 2 All ER 340 the Court gave support to the existence of such a discretion when it found that the accused ought not to be denied the opportunity of being acquitted, thereby avoiding the risk of being detained indefinitely without any determination of his guilt. 134 In R v Beynon [1957] 2 All ER 513 this issue was re-determined. Before indictment the Crown submitted that the issue of the accused's fitness should be tried. Byrne J rejected the approach in Roberts as being unsupported by authority and contrary to first principles, referring to the decision of the Court of Criminal Appeal in R v Dashwood [1943] 1 KB 1 where it had been held: "It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself." The Court held that it was necessary to try the issue of fitness first, notwithstanding the adverse consequences of a finding of unfitness. 135 The question arose again in R v Podola (1960) 43 Cr App R 220. In this case the accused argued that he was unfit to stand trial, as he had lost his memory of the relevant period, through a condition of hysterical amnesia. The trial Judge instructed the jury to consider whether the accused's amnesia was genuine, and if so, whether he was unfit to stand trial. The jury found that the accused did not suffer amnesia, and he was later convicted and sentenced to death. 136 Although the accused did not appeal against the conviction, an appeal was lodged by the Home Secretary to determine whether there had been a misdirection on the subject of fitness to plead, concerning whether or not the onus of proof rested on the prosecution or the defence. 137 The Court of Criminal Appeal found that even if the accused had in fact lost his memory this would not impact upon his fitness to be tried. Of relevance in this regard are the following passages in the judgment of the Court given by Lord Parker CJ: (at pp 353 to 355) "The words 'If any person … shall be insane … so that 'such person cannot be tried upon such indictment' contained in section 2 of the Act of 1800 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 . A well-known illustration is that of a deaf mute who is also unable to write or to use and understand sign language. … It is not suggested in this case that the appellant could not plead to the indictment, or that he did not know he had the right of challenge, or that he could not follow the evidence given, but (Counsel) submitted strongly that where there was the partial obliteration of memory alleged in this case, a prisoner could not make a proper defence and could not 'comprehend' the details of the evidence within the meaning of the words used in Pritchard's case. .. In our judgment the direction given by Alderson B is not intended to cover and does not cover a case where the prisoner can plead to the indictment and has the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds. This case is the first attempt in England to assert that hysterical amnesia covering the period of the events which are the subject of the indictment renders a man insane so that he cannot be tried The matter has however, come before the courts in Scotland." 138 After referring to two such decisions, including that of Russell v HM Advocate (1946) S.C. (J) 37, his Lordship continued: "We agree with the opinions stated and the conclusions arrived at in the case of Russell . The word used in the Act of 1800 is the word 'insane'. It is true that in the case of a deaf mute the word 'insane' does not strictly apply, but as was pointed out by Lord Alderstone CJ in Rex v Governor of Stafford Prison, Ex parte Emery , the practice of including as coming within that word the case of persons who, from mental or physical infirmity, cannot follow what is happening in a case is in accordance with reason and common sense . We cannot see that it is in accordance either with reason or common sense to extend the meaning of the word to include persons who are mentally normal at the time of the hearing of the proceedings against them, and are perfectly capable of instructing their solicitors as to what submission their counsel is to put forward with regard to the commission of the crime." 139 In addition, the Court found that there was no discretion to postpone the fitness hearing until the end of the trial. Lord Parker observed at 429: "Indeed, if a court becomes aware, either before or during a trial, that the accused person's sanity is doubtful, it is the duty of the court to have the doubt resolved before beginning or continuing the trial." 140 Following this decision the Criminal Law Revision Committee delivered a report into criminal procedure and insanity. They recommended that the Court have the power to postpone the issue of fitness until any time up to the opening of the defence case, (adopting Lord Devlin's view in R v Roberts). This recommendation was implemented in S 4 of the Criminal Procedure (Insanity) Act 1964. A right of appeal against a finding of unfitness to plead was also provided. 141 A finding of unfitness under this legislation had the consequence that an accused was treated in the same fashion as a person found not guilty by reason of insanity. To that extent it maintained the earlier linkage between unfitness to plead and insanity. In each case the Court had no alternative other than to make an order for his or her admission to and detention, in a hospital, subject to restrictions on discharge. The consequences were so harsh that most accused tried to avoid a fitness hearing by pleading to the substantive charge or to some lesser charge. 142 This problem was addressed by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK) which, while preserving the procedural mechanism of the former Act, provided that a jury should not make a determination of unfitness, except on the evidence of two or more registered medical practitioners, at least one of whom had been approved by the Secretary of State as having special experience in the area of mental disorder. Once again, those found not guilty by reason of insanity and those found unfit to plead were grouped together for the purposes of their subsequent management. The significant change, however, was that the Court became empowered to make an order for admission to a hospital either with or without a restriction direction, or a guardianship order, or a supervision and treatment order, or an order for the absolute discharge of the accused. 143 The difference between comprehension of the proceedings and ability to communicate with the accused's legal advisers, on the one hand, and the ability to conduct a defence wisely or even rationally, on the other hand, was recognised, the test of fitness being concerned with the former and not with the latter. In R v Robertson (1968) 1 WLR 1767, the Court of Appeal ruled, in the case of an accused suffering from a paranoid illness, who was able to comprehend the proceedings, but whose thinking was delusional, that "the mere fact that the appellant was not capable of doing things which were in his own best interests were insufficient ground for a jury to return a finding of disability." The Australian Case Law 144 A similar conclusion to that reached in Pritchard, Podola and Beynon has been reached in cases in this country, which have dealt with the fitness of an accused to stand trial. 145 It is convenient to have regard to those authorities which have settled the basic principles, although without dealing directly with the preliminary jurisdictional question which arises here. Decisions in States or Territories other than New South Wales 146 Perhaps the seminal case is that of R v Presser [1958] VR 45, where the question of fitness to plead arose in the context of S 426 Crimes Act 1928 (Vic), in relation to a youth in whom the presence of "serious mental defects" had been indicated by two doctors. Smith J said at 46: "It appears to me, on the whole of the material before me, that there is a real and substantial question to be considered, in relation to the accused's fitness to be tried. And that being so, I think that I am under a duty to have that matter determined by a jury before I allow the trial to proceed. I think that the case of Beynon , is of importance on that aspect of the matter." 147 At p 48, his Honour said, relevantly for present purposes: "There is one further thing that I think I should add … The cases to my mind show clearly that the word "insane" in s 426 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 when he is far from being insane in the colloquial sense. Dixon J, as he then was, mentioned in Sinclair v R , that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion. 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." 148 These standards, his Honour, defined in terms which have been widely adopted as follows: "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 the 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 and 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." (at p 48) 149 In Ngatayi v The Queen (1980) 147 CLR 1, a case involving s 631 of the Criminal Code (WA), it was confirmed that it was not necessary for the accused to understand the law which governs his or her case, as distinct from having the capacity to understand the nature of the proceedings and to make a proper defence. 150 That was a case where the accused, by reason of his Aboriginality, was unable to understand that, under the law of the State, gradations of homicide existed and that he may have had a defence to wilful murder based upon intoxication. 151 The provisions applicable were different from those contained in the Procedure Act, insofar as the requirement for a fitness hearing, under the Code arises "if, when the accused person is called upon to plead … it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial. As Gibbs, Mason and Wilson JJ observed, the Code has been set in a context in which the incapacity has no necessary reference to insanity, or to incapacity, arising from a physical or mental condition. 152 Notwithstanding the differences in the relevant legislation, the following extract from their judgment has some relevance for the present appeal, if it be the case that the New South Wales legislation does apply to the intellectually disabled: "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 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." (at p 8) 153 Of interest concerning the dispositions available in relation to an accused who is found unfit, is the following passage in their judgment (at 7-8): "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 (1885) 7 QLJ (NC) 108, 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." 154 Whether authority for that course, which was said to be available in R v Willie (1885) 7 QLJ (NC) 108, survived the Criminal Lunatics Act 1800, with its mandatory judicial order for detention in strict custody, is dubious: R v Judge Martin ex parte Attorney General (1973) VR 339. The question of whether a person, who would never be fit to plead, could be detained indefinitely, was considered, although not decided in Jabanardi (1983) 50 ALR 147, where the repugnancy of such a consequence was mentioned. 155 Kesavarajah v The Queen (1994) 181 CLR 230 was a case involving s 393 Crimes Act 1958 (Vic) and S 20B(3) of the Crimes Act 1914 (Cth). Mason CJ, Toohey and Gaudron JJ there observed, at 245: "…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. ( Ngatayi ) at p.9) Sometimes the test has been stated in terms of whether there is a reason to doubt the accused's fitness to stand trial. However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find the accused was not fit to be tried." (references omitted) 156 Relevantly for the jurisdictional question, their Honours said, at 244: "In conformity with the opening words of s. 393, which are based on the language of s. 2 of the Criminal Lunatics Act (1800) that question is to be determined by a jury specifically empanelled for that purpose. … it has long been recognised that, in a context such as s 393, the word 'insane' does not mean 'insane in the colloquial sense'. or 'insane within the M'Naughten Rules' . In England, the courts have always applied Alderson B's interpretation in R v Pritchard of s 2 of the Criminal Lunatics Act, namely, that: 'the question is, whether the prisoner has sufficient understanding to comprehend the nature of his trial, so as to make a proper defence to the charge'. In the context of s 393, the word signifies inability, by reason of some physical or mental condition , to follow proceedings of the trial and to make a defence in those proceedings." (references omitted) 157 In the Northern Territory, the position of a deaf mute Aboriginal youth who was unable to communicate, except by using his hands to ask for simple needs, who did not know of what he stood charged, and who was unable to communicate with his lawyers, arose for consideration, in the case of Roland Ebatarinja, at the committal stage. The relevant legislation was again in very different terms from that in New South Wales, S 357(1) of the Criminal Code being in similar terms to the Code provision considered in Ngatayil. 158 Mildren J, held that, as the accused was not required to plead at committal, there was no bar to those proceedings continuing, the question of fitness properly being reserved until the time for him to plead was reached (1997) 92 A Crim R 270. 159 An appeal from this decision was dismissed by the Court of Appeal of the Northern Territory. However, an appeal to the High Court (Ebatarinja v Deland & Ors (1998) 157 ALR 385) was allowed, and an order prohibiting the further hearing of the committal was made. This was upon the basis that any committal for trial would occur in circumstances where the evidence was not taken "in the presence or hearing of the defendant", and where the defendant could not be given the right to give evidence or to say something in answer to the charge. 160 It was held by the Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) that the Magistrate would have no authority to commit the accused for trial, in those circumstances, since: "(24) When s 106 (of the Justices Act) directs the justice to take preliminary examination 'in the presence or hearing of the defendant', it lays down a condition precedent to the authority of the justice to commit for trial. The words 'presence or hearing of the defendant' have more than a formal significance. It is hardly to be supposed that the conditions of the section can be complied with by taking the preliminary examination in the presence of defendant who is in a coma. (25) Whether the examination is conducted in the physical presence or within the actual hearing of the defendant, s 106 will not be complied with unless the defendant is able to understand what has been put against him or her by the 'persons who know the facts and circumstances of the case'. The necessity for the defendant to understand what is put against him or her is emphasised by the words which s 110 directs the justice to say to the defendant: 'Having heard the evidence for the prosecution, do you wish to be sworn and give evidence … or do you desire to say anything in answer to the charge [?]' These words would be meaningless ritual unless the defendant had not only 'heard' the evidence for the prosecution but was able to comprehend what was being put against him or her." 161 These observations have potential relevance for committal proceedings generally, including those conducted in New South Wales, since the Justices Act 1902 similarly makes provision for a defendant to give evidence and to examine and cross examine witnesses (s36), requires evidence for the prosecution to be "taken in the presence of" the defendant (S41 (1B)(a)), and requires the Justice to give the defendant the opportunity of saying anything in answer to the charge before making an order for committal. (S41 (4)). No provision or allowance is made in respect of defendants whose fitness to plead or to be tried is in question. 162 The Court indicated in Ebatarinja that there was no reason why the Crown should not move to lift the stay of an ex officio indictment which had been filed in the Supreme Court, so as to allow the question of fitness to heard in that Court, there being no authority residing in a Magistrate to deal with the question. That was the course subsequently taken. 163 In R v Miller (No 2) (2000) SASC 152, Martin J held that an accused, who was suffering from a similar intellectual disability to that of the present appellant, as well as possible frontal lobe damage, was "mentally unfit to stand trial," upon the basis that he was unable to understand the charge. This decision, however, as outlined previously, was made in the context of the definition provided by S 269H of the Criminal Law Consolidation Act 1935 as follows: "269H. A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is: a) unable to understand or to respond rationally to the charge or the allegations on which the charge is based; or b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings. 164 In Eastman v The Queen (2000) 74 ALJR 915 the issue arose in the context of s 428E Crimes Act 1928 (ACT) and s68 (3) of the Mental Health (Treatment and Care) Act 1994 (ACT), in relation to whether an appellate court has a duty to consider fitness to plead of its own initiative, ie where the matter had not been raised at trial. 165 Although in the minority, in relation to whether or not the Full Court of the Federal Court should have inquired into the appellant's fitness, the statement of principle contained in the judgment of Gaudron J has considerable relevance for the present case, it being a statement not questioned in any of the other judgments. 166 Her Honour observed (at pp 49-51): "(59) A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. The second matter to be noted is that fitness to plead is a concept that derives from the common law . Usually, however, there are statutory provisions which bear on the determination of that issue. … (62) The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, ' no proper trial has taken place [and the] trial is a nullity'. To put the matter another way, there is a fundamental failure in the trial process. (63) The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum 'the trial [is] a nullity', the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law. That is the basis upon which this court proceeded in Kasavarajah v R , where the question of fitness to plead should have been but was not submitted to the jury for determination. (64) Traditionally, an accused person has not been put on trial unless fit to plead because of "the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing." That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead. (65) It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication." (References omitted). 167 Although similarly in the minority, as to whether the Court could receive further evidence as to the appellant's mental state, and/or as to whether the Full Federal Court should have made inquiries about his fitness, Hayne and Callinan JJ, each underlined the fundamental importance, at Common law, of the accused being fit to plead and to stand trial. 168 Hayne J (at pages 111-112) observed: "(294) …There can be no trial at all unless the accused is fit both to plead and to stand trial. Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial judge to consider regardless of whether the prosecution or the accused raise it. In that respect it is a question which falls outside the adversarial system. Indeed it must fall outside the adversarial system because the very question for consideration is whether there is a competent adversary. (295) In the great majority of cases no question of fitness arises. But if it does the question for a trial judge is whether the accused may not be fit to plead or stand trial. Only if affirmatively satisfied that the tribunal which is responsible for determining the fitness of the accused (in many jurisdictions, a jury empanelled to determine the question, but in the Australian Capital Territory a statutory tribunal) could not reasonably find that the accused was not fit to stand trial may the trial proceed. (296) An issue of fitness may arise in many ways. … But once there is a 'real and substantial question to be considered' the question must be submitted to the body which is empowered to decide the question. There will be a 'real and substantial question to be considered' by this body unless no properly instructed jury (or no tribunal) could reasonably conclude that the accused was not fit." ( References omitted) 169 Callinan J (at p 120) noted: (332) It may be taken as clearly settled at common law that no one may be tried for a crime unless that person is mentally competent to defend himself or herself, and further, is able to understand the proceedings and the nature of the evidence to be led" And added (at p 138 -139) (399) From very early times in England except for a period during the reign of Henry VIII if a man committed a capital offence while of sound mind but became mad before arraignment he could not be arraigned for the crime. And as far back as pre-Norman times King Alfred hanged Cole, one of his judges, because he judged Ive to death when he was a madman. … Procedural fairness in a criminal trial requires that the accused be aware of the nature of proceedings and be capable of participation in them in fit state to defend himself. (400) It is now well established at common law that a finding of unfitness bars further trial and there is statutory jurisdiction in force in most jurisdictions to enable this matter to be determined separately from the trial process. It has been held that, before the question of fitness has to be pursued there must be a 'real question', or a 'real and substantial question or a 'serious question'. (references omitted) 170 A recent consideration of the ambit of conditions which may warrant a finding of unfitness to stand trial is the South Australian Court of Criminal Appeal's decision in R v Sexton (2000) 116 A Crim R 173. Sexton applied for a stay of proceedings at his trial on a narcotics charge under the Customs Act on the basis that he was unfit to plead as he was suffering from inoperable heart disease. There was medical evidence that the disease was inoperable and that stress would make him liable to suffer a heart attack. Gray J, Prior and Williams J agreeing, stated at p 184, para 54: "Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one's inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment." 171 This decision was, however, concerned with the same provision of the Criminal Law Consolidation Act 1935 with which the Court was concerned in Miller. Decisions in New South Wales 172 In R v Drummond [1994] NSWCCA, 27 May 1994 the issue arose in a case where the accused claimed that he had amnesia and could not recall committing the offence. It was held applying R v Podola and Russell v His Majesty's Advocate, and following R v Dennison NSW CCA 3 March 1988, that a condition of amnesia resulting from brain damage of a diffuse kind, does not operate to bar the trial of an accused, and that as a consequence the direction by the trial Judge to the jury to find the accused fit was correct. Gleeson CJ observed, (at p9). "As had been pointed out by Grove J, the decision in R v Dennison is supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge. The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser , incapable of letting Counsel know what his version of the facts is. The accused person who says to his counsel "I can't remember what happened on that day" is not thereby unfit to plead. 173 In R v Zhang [2000] NSWCCA 344 the Court held that once the accused's fitness to be tried had been raised in good faith, as the Crown Prosecutor had done, on the fourth day of the trial, it was not open to the Crown to 'withdraw the application'. The failure to determine the question in accordance with the Act resulted, it was held, in a mistrial. 174 Dunford J there observed: "25 In my view the provisions of s 10 are explicit and mandatory. If the question of a person's unfitness to be tried is raised after the person has been arraigned, the Court must , as soon as practicable after the question is raised, conduct an inquiry in order to determine whether such person is unfit to be tried. There are only two exceptions provided for, one is provided by subs (2) namely that it appears to the court that the question has not been raised in good faith … 26 In the present case his Honour expressly found that the question had been raised in good faith, and consequently there was no alternative, even though it may have been inconvenient, but to discharge the existing jury and conduct the inquiry required by s 10(1) before a different jury (s 11)….. … 28 It was submitted on behalf of the Crown that before s 10 came into operation the trial judge had to be satisfied that there was a real and substantial question to be considered in relation to the accused's fitness to be tried, and reference was made to R v Presser , Kesavarajah v The Queen and Eastman v The Queen . However, those cases related to the procedure under the relevant Victorian and Australian Capital Territory legislation respectively, both of which were in significantly different terms to s 10. 29. Counsel for the Crown expressed concern that there was a need for a further threshold test in addition to that raised in good faith test provided by subs (2), because the question could be raised in good faith but inappropriately, for example by an over anxious party. Not only do I consider such an occurrence most unlikely but, whatever the position may be at common law and in other states , s 10 admits of no other threshold test . Of course if the judge considered that the question was raised merely for tactical reasons, he or she would not find that it was raised in good faith. No question of that nature arises in this case." 175 In R v Tier [2001] NSWCCA 53, the Court looked at the question whether the issue was raised in good faith, in a case where the trial Judge had twice declined to direct a fitness hearing in circumstances where the accused had been admitted to a psychiatric hospital during the trial, with a diagnosis of major depression, which was confirmed by a number of experts, and where his solicitor had reported difficulties in communicating with him. 176 Sheller JA noted (para 1): "the cardinal principle that no one can be tried for a crime unless the person is in a mental condition to make a proper defence" and observed in relation to s 10 of the Procedure Act: "No doubt subs (2) was designed to prevent allegations of unfitness, known to be false, interrupting trials." 177 In relation to the existence of a "real question as to incapacity" being the expression used by Gibbs, Mason and Wilson JJ in Ngatayi, as that which gave rise to the requirement for a fitness hearing, his Honour said (para 4): "In my opinion, in this context to qualify a question as "real" means the same as to qualify it as one that "has been raised in good faith". Other words or phrases such as "genuinely" or "on the basis of a belief honestly held" may help to explain what is intended." 178 His Honour continued (para 6): "I do not understand how it could be said that, if there was a possibility (which the trial judge had accepted as existing while rejecting the view that it was a probability) that the appellant was unfit to be tried, the question of whether he was indeed unfit to be tried could be said not to have been raised in good faith. With due respect, this conclusion may have resulted from a misunderstanding of the expression 'a real and substantial question' … 179 Kirby J first dealt with the common law, observing: "54 Justice requires that any person put on trial should be fit to stand trial. In R v Dashwood , Humphries J said this, on behalf of the Court: "It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself". 55 An accused person must be in a position to comprehend the course of proceedings, so as to make a proper defence. (references omitted) 180 His Honour then turned to the Procedure Act, noting: " 69 This appeal is concerned with the proper construction of s 10 of the Act. If there is a real and substantial issue as to the unfitness of the accused to stand trial, then justice requires that it be determined. It is impossible to imagine, in such circumstances, that a Court would determine (having examined the motivation of the person who raised the question) that it was not raised in good faith, and decline to hold an inquiry. 70 Against this background, there are two ways in which the construction of s 10 might have been approached. The section repeatedly uses the phrase "raise the question" concerning the unfitness of the accused. One may 'raise the question' either by simply identifying the issue, without substantiation, or by the disclosure of some factual basis which, if accepted, gives rise to the real and substantial question concerning the unfitness of the accused to be tried. In Zhang the Court appeared to favour the first of these alternatives …." 181 His Honour continued: "71 The exception provided by s 10(2) recognises that an inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed (and is provided, by s10(2)) for the trial Judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the Court that the question has not been raised in good faith (s10(2)). It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process . Conversely, where there is real and substantial question, good faith will be presumed. 72 Section 10, therefore suggests a sequence of questions. Usually, an accused person will be represented (s12(1)). Where an accused's representative raises a question concerning the unfitness of the accused, the trial Judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner there is, prima facie, an obligation upon the trial Judge to halt the trial, and to conduct an inquiry before a separate jury. If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial Judge to seek an elaboration upon the matters giving rise to the concern. Where that elaboration demonstrates a real and substantial question, good faith will be presumed . The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the Court may impute an absence of good faith, and decline to conduct an inquiry (s10(2))." THE LEGISLATIVE HISTORY IN NEW SOUTH WALES 182 It is next convenient to turn to the legislation which dealt with the circumstance, at common law, that those held unfit to be tried were liable to be kept in indeterminate detention, at the Governor's pleasure; and to examine whether the language used in the Procedure Act, compels an interpretation that would operate to exclude from its reach the developmentally or intellectually disabled. 183 The problem which had emerged at common law was first addressed in New South Wales by the Crimes (Mental Disorder) Amendment Act 1983, which inserted Parts XIA and XIB into the Crimes Act 1900 (NSW). Earlier, the position of persons found to be insane on arraignment, or during trial, had been governed by the Criminal Lunatics Act 1800 (UK) until 1 March 1878, and thereafter by the Lunacy Act 1878 (NSW) until it was replaced by the Mental Health Act 1958 (NSW). 184 The Lunacy Act 1878 had defined an "insane person" as: "Any person who for the time being be idiotic lunatic or of unsound mind and incapable of managing himself or his affairs and whether found insane by inquisition or otherwise." 185 By Section 58 of the Lunacy Act 1878 it was provided: "If any person indicted for any offence shall be insane and shall upon arraignment be found so to be by a jury lawfully [em]panelled for that purpose so that such person cannot be tried upon such indictment or if upon the trial of any person so indicted such person shall appear to the jury charged with such indictment to be insane it shall be lawful for the Court before which any such person shall be brought to be arraigned or tried aforesaid to direct such finding to be recorded and thereupon to order such person be kept in strict custody in such a place and in such a manner as to the Court may seem fit until he shall be dealt with as hereinafter provided ….." 186 Section 59 of the Lunacy Act 1878 stated that a person found insane before trial was to be sent to a hospital for the criminal insane. "When any person committed to take his trial for any offence shall be certified by two medical practitioners in the form of Schedule 2 to be insane or shall upon arraignment be found by verdict to be insane the Colonial Secretary may direct by order under his hand in the form of Schedule 15 that such person be removed to an hospital until he shall be certified by the medical officer and the Inspector General or by the said medical officer and two official visitors to be of sound mind whereupon the Colonial Secretary shall order his removal to the gaol from whence he came in order to his being tried for such offence. Provided that such detention for any period shall not operate as a bar to his subsequent indictment and trial for such offence." 187 Similarly s 23(1) of the Mental Health Act 1958 provided: "If any person indicted for an offence is mentally ill and, upon arraignment, is found to be so by a jury lawfully empanelled for that purpose so that such person cannot be tried upon such indictment, or if upon the trial of any person so indicted such person is found by the jury, before whom he is tried, to be mentally ill, the judge before whom any such person is brought to be arraigned or tried as aforesaid may direct such findings to be recorded, and thereupon may order such person to be kept in strict custody in such place and in such manner as to such judge may seem fit until he is dealt with as provided by section twenty-four of this Act." 188 Under s 24 of the 1958 Act, persons certified by two medical practitioners to be mentally ill before the trial, or found to be so upon arraignment, were to be removed to and detained in a mental hospital. 189 Under s 4 of that Act "mentally ill person" was defined as: "a person who owing to mental illness requires care, treatment or control for his own good or in the public interest, and is for the time being incapable of managing himself or his affairs and 'mentally ill' has a corresponding meaning." 190 The procedure for dealing with those persons who were potentially unfit to be tried was changed, following enactment of the Crimes (Mental Disorder) Amendment Act 1983, which was the precursor to the current legislation. That Act was cognate with the Mental Health Act 1983, in the same way that the 1990 Procedure and Health legislation are cognate, and came into operation on 22 August 1986. 191 It is clear from the Second Reading Speech when the Bills were was first introduced in 1982, with the intention that they lie in the House until the next Session, that this legislation was intended to deal with the problem that a person who had been found unfit to plead might be detained indefinitely at the Governor's pleasure in a mental hospital or prison, without ever having an opportunity to present a defence case. It is also clear from that speech that the legislation was intended to apply to the intellectually disabled, as well as to those suffering from some form of mental illness. The Minister, the Honourable Laurie Brereton, said in this regard: "I turn now to the question of unfitness to be tried, which will be dealt with in the new part XIA of the Crimes Act. It is a well-established and fundamental principle of our criminal justice system that a person cannot be tried for an offence unless he is in a condition to defend himself, that is, unless he is fit to plead. As this concept has developed, it has encompassed all persons who, for whatever reason, are unable to understand clearly the course and nature of the proceedings of the trial so as to make a proper defence, or to challenge a juror or to communicate adequately with a lawyer . Although the original concept of fitness to plead was developed in regard to persons who were clearly insane, the notion of fitness to be tried has come to be understood as covering all persons who from whatever cause are unable to plead, understand the proceedings or communicate with others . … At present, if an accused person is found unfit to plead, the trial judge, in virtually all cases, will order that the accused be kept in strict custody in such place and manner as the judge thinks fit. This means detention in a mental hospital or prison. The major weakness in the present system is that a person may be detained indefinitely without having had an opportunity to present a defence case. In particular, if a person is mentally retarded , he or she may never become fit in the future so as to come before a court for trial. He or she may never get out, in effect." 192 After noting some other deficiencies in the existing system relating to the onus of proof, and difficulties associated with the absence of any procedure for review, the Minister continued: "It is towards overcoming these deficiencies that the provisions of part XIA of the Bill, entitled 'Unfitness to be tried for an offence', are directed. It is considered that the concept of unfitness to be tried is a more accurate statement of what is involved rather than fitness to plead. Proposed clause 428B states that a person is unfit to be tried for an offence (if) because of disability he is incapable of understanding the nature or purpose of the proceedings brought against him; or he is incapable of communicating adequately with a person for the purpose of conducting a defence to those proceedings. The preceding provision, proposed section 428A defines disability to include mental illness, intellectual handicap, developmental disability of mind, speech impairment, and any combination of them. … To overcome the possibility of a person who is found unfit being lost in the system without the merits of his case ever being considered, proposed section 428I (2)(c) provides for the holding of a special inquiry. The rationale behind this provision is that once a person is found unfit, no procedure currently exists to examine whether such a person committed the offence. This is a particularly difficult situation for the mentally retarded, who are unlikely ever to be fit to be tried according to the conventional rules . Such persons may be locked up forever, with no prospect of release. Under the proposed procedure when it is found that a person will not become fit during the next twelve months a special inquiry must be held so far as is practicable within thirty days of the finding of unfitness to determine whether the person committed the offence or whether the person is not guilty of the offence. This will allow the mentally retarded accused person his day in court and at least the opportunity to have the charges against him dismissed. ( Legislative Assembly Debates 24 November 1982 at 3005 to 3006)" 193 While it was assumed that all persons who could not understand the nature of the proceedings against them, including those with an intellectual disability, were to be considered unfit to be tried, and that the Act was to apply to them, the proposed definition provision (section 428A) was deleted when the Bill was re-introduced some twelve months later. So it was that the Minister said in November 1983, when the amended Bills were read: "The next matter dealt with in the Crimes (Mental Disorder) Amendment Bill is that of fitness to be tried. These provisions have been revised but remain broadly provisions for a scheme whereby mentally handicapped people, the developmentally disabled, have a proper opportunity, when charged with criminal offences, for their presumed innocence to be demonstrated..." "Following comments by one Supreme Court Judge, the attempt in the previous draft to define unfitness in the statute has been removed. The definition of what will constitute unfitness under the new law will remain for the courts to work out on a case-by-case basis". (Legislative Assembly Debates, 29 November 1983 at p 3090.) 194 Consequently, Part XIA, was silent as to what constituted unfitness and did not expressly address the question of to whom the Chapter applied. It did not contain any definition of mental illness or mental condition. The use of the words "unfitness to be tried" however, reflected a shift in terminology from the Mental Health Act 1958 which had used the terms "mental illness upon arraignment" or "mental illness upon trial". 195 Presumably one purpose of this shift was to remove the semantic difficulty involved in artificially defining a person incapable of communication with his or her lawyers as a person who is "mentally ill". However, whether that purpose was achieved remains to be examined. 196 It is also relevant to note that section 428W of the 1983 Act, which was contained in Chapter 2 (Proceedings before a Magistrate Other Than Committal Proceedings), specifically addressed the issue of "developmentally disabled or mentally disordered" defendants who were not "mentally ill persons" within the meaning of the Mental Health Act 1983, where such persons were involved in proceedings before a Magistrate. The present legislation, which repeats this formula, was obviously copied from the 1983 Act. 197 The Crimes (Mental Illness) Amendment Act 1986, No 93 again altered the terminology, and amended s 428B Crimes Act 1900, concerning the definition of "mental condition". According to The Honourable B. J Unsworth, when delivering the Second Reading Speech: "These amendments will also clarify the meaning of the term mental condition which is used in both the new Mental Health Act and the Crimes (Mental Disorder) Amendment Act, 1983. This term is used in both Acts to allow persons who are not mentally ill under the Mental Health Act, but who suffer from an abnormal mental condition to be referred to appropriate treatment in a psychiatric hospital where they consent to that course of action. For the purpose of clarification, the term mental condition is to be defined as a condition of disability of mind not including either mental illness or developmental disability of mind. The term is intended to encompass conditions which are not covered by the term mental illness but which can be treated in a hospital: for example drug or alcohol dependency." … "The first cognate bill is the Crimes (Mental Illness) Amendment Bill 1986. As I have previously mentioned the main bill will insert a definition of the term mental condition. Similarly that term is defined in the same way by inserting that definition into the Crimes Act 1900. A further term mentally disordered is also clarified in the cognate bill by removing the provisions applicable to the term (from the proceedings before magistrates) and substituting instead the expression "is suffering from a mental illness or is suffering from a mental condition for which treatment is available in hospital"… (Legislative Assembly Debates (NSW) 24 April 1986 p 2674-2675) 198 The Second Reading Speeches concerning the passage of the 1990 Procedure Act and the Health Act, (each of which received the assent on 1 June 1990 and commenced on 3 September 1990) did not address the definition of the expression "mental disorder" used in the heading to Part 2 of the Procedure Act. The Parliamentary debates focussed primarily upon the impact of the amendments effected by the Health Act to the 1983 Act, which had remained largely unproclaimed as it was overly complex and legalistic. A definition of "mental illness" was, however, adopted by that Act, the terms of which have previously been mentioned, and which in the speeches was expressly distinguished from the expression "mentally disordered persons" which it appears was intended to include the temporarily irrational, for whom (as people with a mental condition) treatment was available. 199 The following observations were made in relation to the Procedure Bill by the Minister (the Honourable Virginia Chadwick): "the second cognate bill is the Mental Health (Criminal Procedure) Bill. This cognate bill will re-enact provisions relating to proceedings involving persons affected by mental illness and other mental conditions, which are currently contained in parts 11A and 11B of the Crimes Act 1900, with appropriate amendments consequential upon the drafting of the Mental Health Bill. It was considered that these provisions should more appropriately be placed in a new principal piece of legislation. It is intended that this legislation will provide clarification and simplification of the very complex area of mental health legislation (Hansard Legislative Council 2 May 1990 p 2138). 200 The 1990 Act has itself been the subject of amendment by the Criminal Legislation (Amendment) Act 1992, the Mental Health (Amendment) Act 1994, the Crimes Legislation (Unsworn Evidence) Amendment Act 1994, the Mental Health Legislation Amendment Act 1997, and the Crimes Legislation Amendment (Sentencing Act) 1999, although not in a way that assists in the resolution of the jurisdictional question which here arises. 201 The existence of some uncertainty, and imprecision in relation to the position of the intellectually disabled, who do not suffer from a mental condition, has not gone unnoticed. The NSW Law Reform Commission in its Report 80 People with an Intellectual Disability and the Criminal Justice System recommended (at p 52) that a definition of "intellectual disability" be introduced into the Procedure Act. It also suggested that the failure to specifically recognise the needs of intellectually disabled people needed to be addressed (at p 174). However, this issue was not raised in relation to whether an intellectually disabled person could be found unfit to be tried under Part 2, but rather, it was raised with regard to the process of review employed by the Mental Health Review Tribunal, and in particular the determination which it is required to make as to the services or treatment for forensic patients, but which are confined to their patients with a mental illness or a mental condition. 202 The Commission recognised that the terminology used in the Procedure Act and in the Mental Health Act was both confusing and inappropriate, and that difficulty lies in the overlap between the civil and criminal patients who come within the control or supervision of the Mental Health Review Tribunal. The Commission suggested that the term "forensic patient" was also inappropriate as it implies that the person is ill, and in need of either hospital or medical care. 203 The Commission also suggested that the provisions of the Procedure Act be returned to the Crimes Act, to avoid confusion caused by the title of the Act, which it assumed, both in its short and long form, suggested that its provisions only apply to those who are mentally ill, whereas in truth, it observed, the issue of an accused's fitness potentially extends to a much broader category of persons, including those with an intellectual disability. (Report 80 (1996) People with an Intellectual Disability and the Criminal Justice System, paras 5.7). INTERPRETATION OF PART 2 204 This brings me to the question whether there is any proper basis for the assumption made by the Law Reform Commission, by reference to any relevant canon or principle of statutory interpretation, in addition to those previously mentioned, which have caused me to refer to the apparent purpose of the legislation and to such extrinsic materials as appeared to be relevant. 205 One such principle that may assist is that which declares that legislation is presumed not to alter common law doctrines, or to invade common law rights, especially those of a person accused of crime: R v Young (1999) 46 NSWLR 681 at 731, see Gaudron J, in R v Eastman (supra) and Radway v The Queen (1990) 169 CLR 515. 206 While it is the case that legislation can override the common law, the courts do require that it be clearly shown that the legislature intended to do so. This presumption represents the philosophy that it is the responsibility of the courts to protect the individual against the excesses of the state. (Pearce and Geddes: Statutory Interpretation in Australia 4th Edition 1996, P 141) 207 While Australian Courts have recognised that the will of the legislature must prevail, they have frequently referred to the presumption and have not been reluctant in applying it. In FCT v Citibank (1989) 85 ALR 588 for example French J stated: "The nature of our society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected." (at 614) 208 A further principle of potential relevance is that which is applicable where it appears that Parliament has failed by inadvertence, to deal with an eventuality that is required to be dealt with, if the purpose of a Statute is to be achieved. This principle was examined by Spigelman CJ in R v Young (1999) 46 NSWLR 681, where his Honour said at (686 to 687): "6. In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of words actually used. Judicial statements which appear to have been prepared to countenance something more than this should be so understood. … 9. The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107: 'My Lords I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task in which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; second, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.' 11. The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute. … 14. Putting to one side obvious typographical errors, the court supplies words "omitted' by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words 'omitted' by inadvertence per se. 15. Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed; If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction." 209 His Honour continued at 690: "32 The two techniques of construction to which I have referred - reading down general words and giving words an ambulatory construction - are based on the text. In my opinion, there is no warrant for supplying omitted words, unless the result of some such recognised technique of construction can be so described. 33 It is not, in my opinion, appropriate to take an expression of intention from intrinsic materials to supply the omission by the draftsperson, when the result cannot reasonably be deduced from the words actually used by a recognised technique of construction. As McHugh J has put it in Newcastle City Council v GIO General Ltd: 'extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language always permits a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.' 210 In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, the legislative inadvertence rule was applied so as to not give to the word 'company' in a particular paragraph, the extended meaning which was given to it elsewhere. As Spigelman CJ explained, (at 689 in R v Young), that was not a case of inserting words to perfect the intention of Parliament. The actual words were "construed to conform with the intention, where they may reasonably be so construed". 211 The approach of Lord Diplock to statutory construction in Wentworth Securities Ltd v Jones was said by Kirby J in James Hardie & Co Pty Ltd v Seltsan Pty Ltd (1998) 73 ALJR 238 at 253 to be one that "now prevails throughout the common law world". His Honour added "Today unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed." 212 In the present case the individual Sections within Part 2 of the Procedure Act are silent as to the persons to whom they are addressed. Potentially, in those circumstances they apply to each and every accused who is placed on trial in the Supreme and District Courts, ie unless reference to the short or long titles, or to the heading to the Part, or to the cognate legislation, requires their sphere of application to be read down to those suffering from a mental illness or mental condition, in the colloquial sense, or in the sense to be derived from the Health Act. 213 It seems to me, in light of the legislative history, and the approach which the common law has consistently taken, concerning the fundamental right for a person placed on trial to have sufficient understanding of the proceedings so as to be able to mount a proper defence, that the Procedure Act should not be read down so as to exclude the developmentally or intellectually disabled. Such a consequence, it seems to me was certainly not intended, and can properly be avoided by an application of the legislative inadvertence rule, as well as by an application of the presumption as to the preservation of the common law previously mentioned. 214 To otherwise construe the Procedure Act would be to depart from the extended meaning given to the expression "mental illness" in the context of fitness to be tried, that was developed in Pritchard and Dashwood, And confirmed in Presser, Kesavarajah and Eastman; and potentially to negate a fundamental common law principle of fairness that has the authority of recognition over many centuries. 215 Notwithstanding this conclusion, it is the fact that an uncertainty persists as to what should occur at committal in the case of defendant whose fitness to participate in the hearing is under question. Similarly, the proper disposition or management of those accused persons who become forensic patients after a special hearing, and who suffer from an intellectual or developmental disability, rather than from a mental illness or mental condition, does require further consideration. WAS THE APPELLANT WRONGLY DENIED A FITNESS HEARING? 216 Upon the assumption that the Procedure Act does potentially apply, as I have found that it does, to persons suffering from an intellectual disability, but without any underlying mental illness or mental condition, strictly so called, the question arises whether the appellant should have been allowed a fitness hearing at trial? 217 In my view the approach taken by his Honour at trial in relation to the two applications made by Counsel was in error. Upon the basis of the additional material provided in the form of the report from Dr. O'Dea, who had an advantage not available to Dr. Westmore of long term contact with the appellant, and in the form of the additional experience of the appellant's legal advisers in the period leading up to and including the trial, which suggested continuing and serious difficulty on their part in communicating with him, and in obtaining instructions, there clearly was a serious question as to his fitness. That position became even more evident from the bizarre behaviour displayed by the appellant between 28 April and 6 May which seems to have resolved only when his medication was provided on a more regular basis, leaving him somewhat sedated and drowsy, as it had done at the Inquest and Committal. 218 In this regard there is clear authority for the Court taking into account the appearance and behaviour of an accused when he or she appears for trial: R v Khallouf (1981) VR 360 at 364-5. What was also of importance was the fact that the Crown prosecutor accepted, that the question had been raised by Counsel "in good faith". 219 In dismissing the application, his Honour made no finding that the appellant was deliberately and consciously feigning unfitness or mental illness, or acting in a planned way so as to disrupt the trial and to secure some advantage for himself. Rather, he concluded that the issue had been foreclosed by the earlier hearing, and that what was under consideration was not a fresh application under S10(1) (b) but a continuation of the original application under S10(1)(a). 220 It is in this respect that I believe his Honour fell into error. While it was the case, as might have been expected, that the issue of fitness revolved around the appellant's intellectual disability of which evidence had previously been given, and the difficulty which his legal advisers had in communicating with him, there was in fact more information available to the Court than previously. It was capable of throwing light on those aspects of his comprehension that were relevant for the Presser criteria. 221 Additionally, there was the frank demonstration before his Honour of bizarre behaviour which had been absent during the earlier fitness hearing when, it would appear, the appellant had been sedated. In this regard the possible relevance of medication for his fitness, either by reason of its underuse at the trial, or its overuse at the committal and earlier fitness hearing, was expressly raised by defence Counsel, yet left unexplored. This was potentially a matter of some importance since, while appropriate therapeutical medication may have aided the appellant to behave, it would not necessarily have improved his comprehension of the trial. Over-medication reducing him to a comatose state where he was unable to participate, or even to begin to appreciate the events surrounding him, of course, would not have constituted a compliance with Presser. 222 In these circumstances, it seems to me that his Honour fell into error in approaching the question on an adversary basis, rather than as a matter in which an obligation to raise and determine the issue rested not only with the parties but also with the Court, and in requiring the existence of fresh or new evidence before allowing the matter to be reventilated. 223 As the Procedure Act makes clear, the question of fitness is not determined conclusively, and for all time, at a pre trial hearing, or indeed at any one hearing during a trial. The question remains potentially open, at least until the jury retires to consider their verdict and possibly until that verdict is returned. 224 While there is a statutory presumption of fitness once a person has been found fit (S 15(2) of the Procedure Act), it still remains necessary for a trial Judge to interrupt proceedings and to direct that there be a further inquiry if a genuine question as to fitness re-emerges, no matter how inconvenient or disruptive that may be. 225 In this regard, I respectfully adopt the observations of Sheller JA and Kirby J in Tier, as to what is a "question of unfitness" within the meaning of the Procedure Act, and as to whether that question has been "raised in good faith". 226 In particular, as Kirby J observed in Tier, at para 84, the question whether the appellant was, as a matter of probability, unfit to be tried, was a question for a jury empanelled to try the question, on the whole of the material available, including the expert evidence, and the lay evidence as to his behaviour both in and out of Court. 227 In circumstances where it was common ground that the question had been raised by trial counsel in good faith, and where that aspect was not canvassed by his Honour, it is difficult to understand why the applications were dismissed. While the brake of good faith is an important part of the Procedure Act, and while its content is undefined, I would find it difficult for a Court to make a finding that a question had been raised other than in good faith, where the material available suggested that there was a real and substantial, or a genuine concern as to an accused's fitness to stand trial, and where Counsel, who it may be assumed had much greater contact with the accused than anyone else, had drawn that matter to attention. 228 This question having been unaddressed and there being, in my view, occasion for real or genuine concern in relation to the appellant's fitness, error has been shown. There was accordingly a fundamental flaw in the trial process, rendering it a nullity, as was held to be the case in R v Begum (1985) 83 Cr App R 96, and Kesavarajah v The Queen (1994) 181 CLR 230 at 247. 229 I would, accordingly, allow the appeal, quash the conviction and sentence and direct a new trial. 230 GREG JAMES J: I agree with the orders proposed by Wood, CJ. at CL. and his reasons therefor. I also agree with the further observations of the Chief Justice. 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.