R v D J Little [2011] NSWDC 252

District Court New South Wales

Medium Neutral Citation: R v D J Little [2011] NSWDC 252 Hearing dates: 23/08/2011 Decision date: 23 August 2011 Jurisdiction: Criminal Before: Judge Norrish QC Decision: Application refused. Catchwords: CRIMINAL LAW: 'special hearing', unfit to be tried, entitlement to plead guilty once found unfit to be tried. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900 Cases Cited: Kesavarajah v R [1994] HCA 41 R v Coles [2008] NSWSC 672 Category: Interlocutory applications Parties: D J Little - applicant Director of Public Prosecutions - respondent Representation: Mr P Jeffriess - applicant Mr Queenan - respondent File Number(s): 2010/65426

Judgment 1HIS HONOUR: We are gathered here today because Daniel James Little was to face a special hearing pursuant to s 21 Mental Health (Forensic Provisions) Act 1990 in respect of two charges set out on an indictment dated 30 July 2010. 2The allegations against Mr Little are, firstly, that on or about 22 January 2009 at Turvey Park in the State of New South Wales he did break and enter the dwelling house of Maria Elizabeth Cattell and Elizabeth Jean Cattell situated at 86 Bourke Street and did commit a serious indictable offence, to wit robbery, in circumstances of special aggravation, to wit he did wound Elizabeth Jean Cattell. 3This is an offence contrary to s 112(3) Crimes Act 1900. 4The learned Director of Public Prosecutions further charges that the accused, on or about 22 January 2009, at Turvey Park in the State of New South Wales, robbed Maria Elizabeth Cattell of certain property, to wit $180 in cash, the property of the said Maria Cattell and Elizabeth Jean Cattell and at the time of robbery did use corporal violence and wounded Maria Elizabeth Cattell. 5This is an allegation brought pursuant to s 96 Crimes Act 1900. 6The accused, through his counsel today, makes application to this Court that he, the accused, be permitted, as I understand it, to plead guilty or one or other or both of the matters set out on the indictment. 7The accused was arrested in relation to the current matters on 2 December 2009 and has been bail refused in relation to these matters since then. 8I point out by way of background chronology that the accused had been charged on 8 July 2009 with the offence of robbery in company committed, as I understand the matter, on 26 October 2008. The victim in that matter being Father Gabriel Murray. He was bail refused in relation to that matter from 8 July 2009 and as I understand it, was convicted on 4 August 2010 of that offence and sentenced to a term of imprisonment including a non-parole period of two years three months dating from 8 July 2009 and expiring on 7 October 2011. Hence that non-parole period fast approaches but the accused remains bail refused in relation to the current matters. 9Of course, normally an accused person can plead guilty at any time to an offence properly brought by the learned Director of Public Prosecutions. But in this matter the complication is that on 4 August 2010 the accused was found not fit to be tried in relation to the indictment with which I am concerned, dated 30 July 2010. 10Her Honour Judge English, after considering reports prepared by Dr Stephen Allnutt on 6 July 2010, a psychiatrist retained by the learned Director of Public Prosecutions, and Dr Donald Rowe dated 6 April 2010, a psychologist retained by the accused, determined that the accused was unfit to be tried on the basis that Dr Rowe was of the opinion that the accused's neurological disorder that he "diagnosed" causes the accused to suffer from a significant impairment of rational understanding and comprehension, consequential thinking and judgment. Dr Rowe was of the opinion that the accused was neither fit to plead, nor fit to stand trial. 11Dr Allnutt was of the opinion that the accused was "marginally unfit to stand trial". He formed the opinion that the accused had an ability to understand the substantial effect of evidence and the capacity to contribute to what his defence would be. However, he had concerns about the accused's ability to follow the proceedings and instruct his counsel during any such proceedings. 12Her Honour was not informed, as I understand it, at that time when she was considering the issue of fitness to be tried pursuant to the relevant provisions in Pt 2 Mental Health (Forensic Provisions) Act 1990, that the accused wished to plead guilty to any or both of the charges. She concluded in her judgment that there was a doubt about his capacity to understand the role of the jury and the right of challenge, a matter upon which Dr Allnutt had not focused. 13Of course, her Honour considered the matter in accordance with the so-called Presser criteria. She concluded that whilst he may understand the concept that a jury is there to determine whether he is guilty or not, she could not find the same about his right to challenge. She found that he would not be able to properly exercise his right to challenge to potential jurors, taking into account his inability to understand his right to challenge and his inability to comprehend resulting in a risk of misunderstanding of the evidence, or a misinterpretation of the evidence, and an inability therefore to follow the proceedings she found, on the balance of probabilities, that he was unfit to stand trial. 14She concluded that pursuant to s 14 of the Act to which I earlier referred, the accused be referred to the Mental Health Review Tribunal. He was so referred. 15The Mental Health Review Tribunal, by determination dated 29 November 2010, concluded, on the basis of the reasoning of the learned trial judge and other material, that on the balance of probabilities the accused will not or would not, during the period of twelve months after the finding of unfitness, become unfit to be tried for the alleged offences. The finding of unfitness, I hasten to say, was more than twelve months ago. 16For the purposes of s 47 of the Act, the Tribunal formed the opinion that Mr Little has not become fit to be tried for the offence in relation to which he has been found unfit to be tried and that, on the balance of probabilities, this situation will continue and Mr Little will not become fit during the period of twelve months after the finding of unfitness by the Court. 17The Tribunal then took the necessary steps to advise the learned Director of Public Prosecutions. The learned Director of Public Prosecutions subsequently, pursuant to s 19 of the Act, notified the Court of his direction that a special hearing be conducted and thus we come back to where we are at the moment, that is, the matter being listed in these sittings of the District Court at Wagga Wagga for hearing as a "special hearing" pursuant to s 21 of the Act. 18I have read the conclusions of the Tribunal. I point out that the Tribunal, in reaching its conclusion, not only had regard to her Honour's judgment but also had regard to a comprehensive report from Dr Andrew White, forensic psychiatric registrar, who concluded that there had been "no change in Mr Little's level of fitness". Dr White agreed that the accused's level of understanding of proceedings and his ability to participate in the trial would be limited to the extent that the process would not work fairly. In his opinion Mr Little was currently "unfit to be tried". 19Ms Barbara Wotjkowyak "corroborated" this conclusion, noting that Mr Little had "very little understanding of his upcoming hearing...he believes he has been sentenced and is due to release in 2011 and that all other charges have been dismissed in the Local Court". 20I note, in relation to the determination of the Tribunal, that it was aware of the fact, to which I have earlier alluded, that whilst Judge English found the accused unfit to be tried in relation to the current indictment, she accepted a plea of guilty by Mr Little apparently on the same date or before she determined the unfitness to be tried matter in respect of the robbery in company offence committed on 26 October 2008. 21It noted in its report, at p 2 and 3, that her Honour dealt with the sentencing matters and then turned to the issue of whether the accused was unfit to be tried in relation to the outstanding "offences", although the report refers to "that offence" which is clearly a mistake. 22What is presented to the Court is the fact that, on 4 August 2010, the accused pleaded guilty to a charge and was sentenced and was also on that date found unfit to be tried on unrelated charges. 23The essential submission put on behalf of the accused today is notwithstanding the fact that a special hearing has been listed, the accused is fit to plead relying in part on the report of Dr Allnutt, although that is not, as I understood it, the opinion of Dr Rowe, and particularly that having regard to the early provisions in Part 2 of the Act, particularly ss 7 and 8, this Court at this point has the jurisdiction to revisit the matter and accept a plea of guilty to charges presented by the Crown for the purposes of sentencing, notwithstanding the previous finding of unfitness to be tried. 24This proposition creates a number of interesting and, to my experience, novel situations and considerations. I accept, firstly, that there is a distinction to be drawn between being unfit to be tried and unfit to plead. In the context of what could be called Presser criteria, which I point out have been approved in the High Court in Kesavarajah v R, there are a number of considerations addressing various aspects of the trial process and a person could be unfit to be tried, but satisfy some of the criteria that are more pertinent to the question of giving instructions to enter a plea of guilty. I can see from the evidence available to her Honour in determining that the accused was unfit to be tried that her concern was in relation to aspects of the matter that might properly be regarded to be related or concerned with the understanding and participation in the trial process. 25As I understood the submission put on behalf of the accused by Mr Jeffriess, in his usual skilful way, this Court has jurisdiction to deal with the question of "unfitness" at any stage of the proceedings. Section 5 states: "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." 26Section 7 provides, inter alia that: "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 during the course of the hearing of the proceedings in respect of the offence." 27Nothing in that 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. 28Section 8 of the Act specifically provides: "(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 Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. (2) The Court may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted." 29Some consolation, or refuge, is sought in the judgment of Grove J in R v Coles [2008] NSWSC 672. In that matter, an inquiry was commencing in relation to an accused's fitness to be tried, but based upon the evidence available to his Honour, he concluded that there was no longer any need for a fitness inquiry to be conducted and he proceeded to try the matter as a trial by judge alone on the basis that whilst there were queries about the "unfitness" of the accused to be tried, based upon the opinion of Dr Allnutt who, as I understand it, had been retained by the Crown. There was evidence that the accused could participate to the extent that was necessary to ensure fairness if a trial was conducted confined to the issue of whether the accused was not guilty on the grounds of mental illness. In other words, the trial was conducted from the perspective of the accused for the purposes of obtaining a special verdict. As was returned yesterday in an unrelated matter. That is precisely what happened. 30That judgment, to my mind, merely highlights the fact that the criteria to be considered in determining whether someone is unfit to be tried cover a range of circumstances. Not all are necessarily a bar to either the entering of a plea of guilty or a plea of not guilty on the plea or the special plea of mental illness in accordance with the terms of ss 38 and 39 of the same Act. 31The Crown, as I understand it, which produced the decision of Coles, indicates that it may be possible for a person who is unfit to be tried to plead guilty to an offence or to enter a special plea to the charge even if there is evidence that the person may be unfit to be tried on the basis of a plea of not guilty. 32However, the Crown has adopted, or supports, the construction of the Act that I suggested to Mr Jeffriess in our discussion relating to his application. 33It is to be borne in mind, before I come back to a brief analysis of the Act, that the matter has been directed to be listed today for special hearing. The nature of a special hearing is set out in s 21 of the Act. At a special hearing an accused person is taken to have pleaded not guilty in respect to the offence charged. In other words, it is assumed for the purposes of the conduct of the special hearing that the accused has pleaded not guilty and there is no provision under s 21 for a plea of guilty to be entered in discharge of a special hearing. I understood Mr Jeffriess to accept that as the reality. 34As I have earlier pointed out, his application effectively is that the special hearing be vacated, that the Crown be required to present an indictment in relation to the matter not in the context of a special hearing and that the Court accept a plea of guilty by the accused to those counts to which the accused wishes to plead guilty. 35At the moment the matter is not listed for plea, nor for trial. To understand the basis upon which the matter is listed today, one needs to consider the steps that followed the accused being found unfit to be tried pursuant to s 14, set out in ss 15, 16, 19 of the Act. 36The construction argued on behalf of the applicant by Mr Jeffriess was that the terms of ss 5 to 8 permit at any time in the course of the proceedings the issue of "unfitness" to be raised. When one refers to "unfitness" being raised, one is not talking about the fact that a person is necessarily "unfit". It may, I accept, be open to a party to raise the fact that in the context of claimed unfitness, the accused's fitness to be tried or, on Mr Jeffriess' contention plead, be considered as well. The word "unfitness" has no meaning to exclude consideration of "fitness". The legislature has chosen to address the matter by simply referring to the concept of "unfitness". 37However, there are some difficulties with the construction, even as suggested by Mr Jeffriess. Firstly, Pt 2 and particularly ss 5 to 8, are only concerned with the issue of "unfitness to be tried". There is no reference to the concept of "fitness to plead" which was in fact the concept addressed, as I remember it, in Presser, which was a Victorian decision of many years ago. In fact, up until the reformative legislation of the 1980s which cast out into the daylight dozens and dozens of people who had been quite unfairly incarcerated for many years at the 'Governor's Pleasure', commonly lawyers and judges referred to the process of dealing with a person who has claimed to be unfit as "fitness to plead" as opposed to "fitness to be tried". 38However, this matter cannot be resolved solely on a narrow view of the words "unfitness to be tried". Again I reiterate what I have earlier said. I accept that there is a difference between "unfitness to plead" and "unfitness to be tried", but it is not a distinction that finds its way into the structure and the operation of Pt 2 of the Act. In fact, if I be so bold to say so, if an accused person is unfit to be tried but indicates to the Court that he or she wishes to plead guilty to a particular charge proposed to be presented by the Crown, the trial judge can receive the plea of guilty on the basis that in the context of what I would call generally Presser principles, a person can be fit to plead but not fit to undertake the wider process of being tried. In fact, that is precisely what happened in this particular matter. But, of course, back on 4 August 2010 there was no indication to her Honour that the accused wished to plead guilty. 39In any event, as I said, the matter that is ventilated by Mr Jeffriess might, on one view of it, fail in limine because the issues of entitlement to raise unfitness at any stage of the proceedings, even if thought to be capable of being raised at this stage of the proceedings after a special hearing has been ordered or directed, are concerned of course only with the wider question of unfitness to be tried. 40However, to my mind there is a deeper problem for the application made by Mr Jeffriess. Firstly, I reiterate the obvious; the accused has been found unfit to be tried pursuant to s 14 of the Act. Section 14 of the Act states that if a person is found unfit to be tried for an offence: "The proceedings brought against the person in respect of the offence must not," (I emphasise those words) "except for the purpose of doing any of the things referred to in subpara (b) be recommenced or continued and the Court: (a) must refer the person to the Tribunal, and (b) may discharge any jury," et cetera. 41It may do one of the following matters upon these steps. The Court may adjourn the proceedings, grant the person bail, remand the person in custody until the determination of the Tribunal has been given effect to, or: "(iv) Make any other order that the Court considers appropriate." 42There are several observations to be made about this section. Firstly, I read, without the aid of any submissions to the contrary, nor any reliance upon any article of statutory interpretation to contradict what I am about to say, that once a person has been unfit to be tried the Court must deal with the person in accordance with the requirements of s 14 and related sections. 43Further, a submission that the Court may make any other order that the Court considers appropriate, does not address the issue of accepting a plea of guilty in my view in its terms. More importantly, in context this provision is not concerned with the position or situation with which I am currently concerned. The words "make any other order that the Court considers appropriate" must be considered in the context of the structure of the section. Those orders may be related to the circumstances pertaining to the consequences of unfitness to be tried and cannot be construed as extending wider jurisdiction. The statutory interpretative doctrine of "ejusdem generis" dictates that that is the appropriate way to approach (iv). 44In any event, once a person has been unfit to be tried, the Court is required to refer the person to the Tribunal. That has been done. The Tribunal must consider the matter and the Tribunal has concluded not only on the basis of the evidence before her Honour but on the basis of additional evidence which is summarised in the determination of the Tribunal that the accused will continue to be unfit to be tried until twelve months from the date of the determination by her Honour. 45I appreciate the fact that the twelve months is now over. But the only evidence that has been presented to me, in the context of considering the wider legal issues, is the same evidence that was available to her Honour. Of course I have the reasoning of the Tribunal which includes a summary of further evidence in relation to the accused's continuing unfitness. 46Thus we come back to, in a circular way, what was happened up until today. The Tribunal made its determination. The Director, given the very serious character of the allegations, properly directed that there be a special hearing, and the special hearing is listed for today. 47I am mindful in the context of relying upon the assistance of counsel and the limited time I have had to consider the matter that the Tribunal has certain powers to conduct reviews beyond the normal six monthly period, for example, set out in s 46 of the Act, and of course 47 of the Act. 48The bottom line is that the structure of the legislation, even putting aside the interpretation I have placed upon those provisions upon which Mr Jeffriess relies, points to the fact that the finding of unfitness to be tried is a matter that leaves the accused subject to the determination of the Tribunal and further direction of the Director of Public Prosecutions. 49This is not the end of the matter of course. As far as I am aware, the Tribunal has not been told that the accused would wish to plead guilty to the charges on the indictment. It may be in those circumstances, notwithstanding the legislative fiat for the Tribunal to make particular determinations, that the Tribunal may give a direction that permits the accused to be tried in the limited sense that he would wish to plead guilty. 50I note in that regard of course that s 46 continues the use of the expression "fit to be tried" as a matter upon which the Tribunal may direct. 51If the Tribunal determines that someone within twelve months is fit to be tried during the twelve months after a previous determination, s 17 may operate to permit the matter to proceed in court subject to the Crown presenting an indictment. 52I point out one other technical matter that has not arisen for practical consideration. The indictment that commences all criminal proceedings in this particular matter is filed, but only filed for the purposes of the unfitness proceedings and the subsequent proceedings that follow upon the accused being found unfit upon the direction of the Director of Public Prosecutions that there be a special hearing. 53Although 'push has not come to shove' in this matter, if I was to conclude that the accused could plead guilty notwithstanding everything else, there is still a live issue as to whether the Crown could be forced to present an indictment for the purposes of receiving a plea. The matter has not come to that situation. I would have thought in the circumstances of the matter that for a plea to be entered the Crown would need to file in court a fresh indictment or re-present the indictment that was previously presented prior to the unfitness proceedings in August 2010. 54Thus, in the circumstances of the matter, my view of the situation is that because the accused has been found unfit to be tried by a court, this Court has no power, without any further determination by the Tribunal, to receive from the accused a plea of guilty in relation to the indictment filed or any other indictment that may be required to be filed by the Crown. 55Of course, this is an entirely unsatisfactory situation if in fact the accused remains unfit to be tried and is never permitted to enter a plea. There seems to me to be a lacuna in the legislation in failing to statutorily recognise, as is recognised by courts in the context of Presser principles, the distinction between fitness to plead and fitness to be tried. Of course, I accept that Coles may be authority for the proposition that there are distinctions between those concepts, although Coles is not entirely on point. In any event, Grove J did not determine that Mr Coles was unfit to be tried, but in fact terminated the inquiry on the basis of the limited way in which the case was to be run. 56If the accused wished to plead to the charges, it is important of course that he understand fully the consequences of a plea of guilty as well as the meaning of a plea of guilty. If a Court was satisfied that that was so, then of course the accused can be dealt with according to law and all relevant matters can be taken into account including the objective seriousness of the allegations brought against him and the relevance of his disability or disabilities to the sentencing exercise. It would, to my mind, be shameful for the accused simply to be left in a state of abeyance on the basis of a finding of unfitness to be tried in circumstances when, at the time that that unfitness ruling was made, the Court had not been informed that he wished to plead guilty in which case the unfitness proceeding may not have proceeded. 57Eventually I trust commonsense will prevail. However, at this present time, in the context of the terms of s 14 of the Act and the purpose of today's proceedings, I have come to the view that I do not have the power to set aside the unfitness to be tried conclusion of Judge English. I do not have the power to set aside the direction of the learned Director of Public Prosecutions that there be a special hearing. I do not have the power to second guess or re-direct the Tribunal as to its conclusion as to the fitness of the accused to be tried. That means the application of Mr Jeffriess that a plea of guilty be permitted in relation to this matter cannot be granted. It means I cannot, if that be relevant to the application made by Mr Jeffriess, vacate the special hearing. Although I certainly am prepared to adjourn the special hearing pending a further determination by the Tribunal. 58I am sure that the legislature did not intend that a prisoner be kept in a state of abeyance ad infinitum. Particularly given that this accused has a condition that will probably remain with him all of his life and not change. If that were to happen, we would be going back to the dark days of people being held for decades for alleged offences for which they would have been released if dealt with according to law many years before. 59Thus the application is refused.