Supreme Court New South Wales Medium Neutral Citation: R v Peterson (No. 2) [2014] NSWSC 966 Hearing dates: 21 July 2014 Decision date: 22 July 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: The language of s 19 Mental Health (Forensic Provisions) Act 1990 does not create a statutory bar to the continuation of this special hearing beyond the anniversary of the making of the finding of unfitness of Bellew J. Catchwords: CRIMINAL LAW -special hearings -statutory interpretation -whether s 19 Mental Health (Forensic Provisions) Act 1990 creates limitation period within which special hearing must be conducted. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230 Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 R v Mailes [2001] NSWCCA 155; 53 NSWLR 251 R v Peterson [2013] NSWSC 1002 R v Presser [1958] VR 45 R v Wilson (No. 1) [2013] NSWSC 1146; R v Wilson (No. 2) [2013] NSWSC 1288 Category: Procedural and other rulings Parties: The Queen (Crown) John Francis Peterson (Accused) Representation: Counsel: C. Maxwell QC (Crown) C. Smith (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2012/173835 Judgment 1This matter is before the Court for a special hearing pursuant to the provisions of ss 19, 21 and 21A Mental Health (Forensic Provisions) Act 1990 (the Act). The context of the present issue 2On 26th July 2013 Bellew J found that the accused was unfit to stand trial for the murder of Rafik Makaradi on 31st May 2012 at Lethbridge Park in this State (R v Peterson [2013] NSWSC 1002). His Honour referred the accused to the Mental Health Review Tribunal (the Tribunal) as required by s 14 of the Act and remanded him in custody pending its determination in accordance with s 16 of the Act. After a hearing on 12th September 2013 the Tribunal determined, in its decision dated 2nd October 2013, on the balance of probabilities, that the accused will not become fit to tried for this offence during the period of 12 months after Bellew J's finding of unfitness. Also as required by s 16, the Tribunal notified the Court and the Director of Public Prosecutions (DPP) of its determination. 3On 1st November 2013, the DPP advised the Court under s 19(1)(a) of the Act that he "intended to proceed with the charges". Except if the DPP had decided not to proceed, the receipt of the notification of the Tribunal's determination requires the Court to conduct a special hearing "as soon as practicable". In the light of the DPP's advice, on 6th December 2013, the Court fixed the special hearing to commence on 21st July 2014. Bail was formally refused and the accused continued in custody on remand. 4It should be recorded here that the Tribunal conducted a further review of the accused in accordance with the provisions of s 46 of the Act on 20th March 2014. The accused is a forensic patient as defined by s 42 of the Act in that he has been detained in a correctional centre pursuant to Bellew J's order under s 14 of the Act. On 11th April 2014 the Tribunal made an order under s 47(1)(a) of the Act that the accused continue to be detained in a correctional centre "to receive care and treatment" after it determined that the accused continued to be unfit and he would not during the period of 12 months after Bellew J's finding become fit to be tried. In accordance with s 47(5)(b) notification of this determination was provided to the Court and the DPP. 5I should also record that Bellew J's finding of unfitness was based on the evidence his Honour accepted about the accused's congenital intellectual disability, rather than mental illness per se. (See his Honour's judgment [18], [22] and [24]). The evidence before, and apparently accepted by, the Tribunal, recorded in Annexure "A" to its review determination of 11th April 2014, from Dr. Tracey Fay, a staff specialist psychiatrist at Parklea Correctional Centre, was that the accused's unfitness to plead "was a reflection of his intellectual disability (which she would not expect) to change over time". Important as this may be, the statutory question for the Tribunal in April 2014 was whether the accused "has not become fit to be tried ... and will not, during the period of 12 months after the finding of unfitness by the Court, become fit to be tried for the offence". The issue 6When the matter was called for special hearing, the learned Senior Crown Prosecutor raised a question going to the Court's power to conduct the special hearing after 26 July 2014, the anniversary of Justice Bellew's finding and orders under s 14 of the Act. It was said the expression "during the period of 12 months after the finding of unfitness" in s 19 of the Act were words creating a limitation period during which the special hearing must be completed. The submissions 7The Crown argument was predicated upon the Tribunal's statutory duty to determine whether on the balance of probabilities, the accused, during the period of 12 months after the finding of unfitness had become fit to be tried for the offence. Different statutory consequences depend upon that finding. If the determination is that the accused is likely to "become fit to be tried during the period of 12 months after the finding of unfitness" the Court's power is limited and conditioned by the provisions of ss 17, 29 and 30. On the other hand, the power to hold a special hearing conferred by s 19 is conditioned upon the Tribunal's determination "under s 16(3), 45(3) or 47(5)" that the person will not become fit to be tried "during the period of 12 months after the finding of unfitness". In that event the duty of the Court "was to conduct the special hearing as soon as practicable, unless the Director of Public Prosecutions advises that no further proceedings will be taken". Whether s 16 or s 45 or s 47 is invoked, the Tribunal's function is limited to a consideration of the accused's fitness "during the period of 12 months after the finding of unfitness", and that period is a limitation upon the Court's power to conduct the special hearing. Once the period expired, so too did the Court's power. If the question of the accused's unfitness continued to arise, or arose again, after the expiration of the 12 month period, and s 7 of the Act contemplates the possibility of the question arising on more than one occasion, then the process would need to start again. Obviously this would involve a further inquiry and a finding of fitness or unfitness, and if the latter a further referral to the Tribunal under s 16, and so on. 8No evidence was led on the application suggesting that the accused had become fit, or was likely to. 9Mr Smith of Counsel for the accused argued that once the condition upon which s 19 was predicated was satisfied, the Court not only had the power, but had the duty to conduct a special hearing as soon as practicable, whether or not practicability permitted that to occur during the 12 months after the finding of unfitness. Decision 10I have decided that the Crown's argument should be rejected. In my judgment the words "during the period of 12 months after the finding of unfitness", or their like, where they appear in the provisions of Part 2 of the Act are not words of limiting the power of the Court to conduct a special hearing: they create no statutory bar. Reasons 11The starting point, of course, must be the statute itself, but it is notable that the concept of fitness to be tried is not a statutory construct. Rather, the concept expresses fundamental values of the common law as Wood CJ at CL demonstrated in R v Mailes [2001] NSWCCA 155; 53 NSWLR 251 (Spigelman CJ and Greg James J agreeing). Its origins may be traced to the procedural formalities of the medieval courts of law. By the early 18th century, as his Honour demonstrated by reference to Sir Matthew Hales's The History of the Pleas of the Crown (1736), it was clearly established law that if a "sane" offender became "mad" before his arraignment "he ought not by law to be arraigned during such his frenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment" (cited in Mailes at [114]). 12Notwithstanding frequent statutory intervention the fundamentals of these principles have not changed much over centuries. The locus classicus of the content of the concept of unfitness to plead in Australian jurisprudence is the judgment of Smith J in R v Presser [1958] VR 45 approved by the High Court of Australia in Kesavarajah v The Queen (1994) 181 CLR 230. The Act recognises that although it is better if, as in this case, the question of unfitness is raised before the accused is arraigned, it may be raised at any time "during the course of the hearing of the proceedings in respect of the offence". Moreover it may arise more than once "in respect of the same proceedings": s 7 of the Act; Mailes [7] - [16] per Spigelman CJ; [223] - [224] per Wood CJ at CL. 13Once the question is raised, it is for the trial judge to decide whether an inquiry should be conducted into the question (s 10) and if so, the determination is one for a judge alone (s 11). An "inquiry" might be refused if the question cannot be seriously entertained. If following inquiry the accused is found fit, the proceedings recommence, or continue, in accordance with the usual criminal procedures (s 13). If unfit, the proceedings may not continue and the Court must refer the accused to the Tribunal for the determination of the likely duration of the unfitness. The Court may also make consequential orders. 14A key provision relevant to the present question is s 15 which creates a rebuttable statutory presumption of continuity in respect of a finding either of unfitness or fitness, as the case may be. Where as here, there is a finding of unfitness s 15 provides: 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, and (b) ................ 15This presumption is not rebutted by a determination of the Tribunal that the accused is likely during the period of 12 months after the finding to become fit. In such circumstances, subject to other statutory conditions, the Court is to hold a further inquiry as to the person's fitness: s 29 of the Act. Only if the Court, following further inquiry, finds the accused to be fit may the accused be tried for the offence: s 30. As can be seen, s 30 contemplates that after further inquiry, notwithstanding the determination of the Tribunal, the Court may yet find that the accused is unfit to be tried. In which event, the consequences spelt out in s 30(2) follow: see R v Wilson (No. 1) [2013] NSWSC 1146 and R v Wilson (No. 2) [2013] NSWSC 1288 at [17] - [22]. 16Moreover, the jurisdiction of the courts to conduct a special hearing is not contingent upon the conditions expressed in s 19 being satisfied (see Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 at 391 per Dixon J). As s 19(4) makes clear, it was within the contemplation of Parliament that the Court might have conducted a special hearing already before receiving notification of the initial determination of the Tribunal. The same contemplation animates s 30(2)(b). And nothing in the provisions of s 45, 46 or 47 displaces the conclusion I have expressed so far. Indeed, s 46 obliges the Tribunal to review the case of each forensic patient "every 6 months". This seems to contemplate an ongoing process extending beyond a period of 12 months. All of which is consistent with the common law foundation of the relevant principle. 17The clearest language would be necessary to support a construction that a special hearing must not only be commenced but also must be finalised within a period of 12 months from a finding of unfitness by the Court. Rather the legislation recognises that the question may arise at any time, and more than once. The Act creates a statutory presumption of continuity once a finding is made. As the provisions I have referred to demonstrate the presumption may only be rebutted not by a determination of the Tribunal but by a finding of the Court after further inquiry. This further inquiry may be triggered by the Tribunal's determination, but this is not the sole consideration contemplated by the legislation. This statutory context does not support the construction of s 19 advanced by the Crown. 18My ruling is that the language of s 19 Mental Health (Forensic Provisions) Act 1990 does not create a statutory bar to the continuation of this special hearing beyond the anniversary of the making of the finding of unfitness of Bellew J. ********** 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. Decision last updated: 22 July 2014