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Court of Criminal Appeal 18 May 1999

R v Mailes

[1999] NSWCCA 127

Public order & justice offences
CRIMINAL LAW AND PROCEDURE S5F OF THE CRIMINAL APPEAL ACT

Citation: R v Mailes [1999] NSWCCA 127
Court: Court of Criminal Appeal, New South Wales
Date: 18 May 1999
Judge(s): James J, Barr J, Carruthers AJ

Background

The accused was on trial in the Supreme Court at Wagga on a charge of murder. On the second day of the trial, defence counsel raised the question of whether the accused was fit to stand trial, seeking an inquiry under the Mental Health (Criminal Procedure) Act 1990. The trial judge, Newman J, declined to order such an inquiry and also declined to pause the trial to allow an appeal against that ruling to be heard and determined first.

The trial continued. By the time the application came before the Court of Criminal Appeal, the proceedings had been running for four weeks and defence counsel's closing address was nearly complete. A verdict from the jury was expected within days.

Counsel for the accused did not press for the application to be heard that day, instead suggesting the matter be stood over to await the trial's outcome.

  • Whether leave to appeal should be granted under section 5F of the Criminal Appeal Act against the trial judge's refusal to order a fitness inquiry under the Mental Health (Criminal Procedure) Act 1990.
  • Whether the Court of Criminal Appeal should intervene in an ongoing criminal trial that had reached an advanced stage.
  • Whether, in the absence of a certificate granted by the trial judge under section 5(3)(b) of the Criminal Appeal Act, leave to appeal was available.

Decision

James J (with Barr J and Carruthers AJ agreeing) refused leave to appeal. The court noted that Newman J had not granted a certificate under section 5(3)(b) of the Criminal Appeal Act, meaning any appeal required the leave of the Court of Criminal Appeal rather than proceeding as of right.

The court identified strong reasons to refuse leave, even setting aside defence counsel's own reluctance to proceed that day. The Court of Criminal Appeal expressed a general disinclination to interrupt ongoing criminal trials, and the circumstances here made that reluctance particularly acute: the trial had reached its final stages.

James J observed that if the accused were acquitted, the application would become academic entirely. If convicted, a ground of appeal could be advanced at that point on the basis that Newman J's refusal to order the inquiry constituted or contributed to a miscarriage of justice. The fitness question could also be raised again if appropriate at a later stage.

The court made clear it was not evaluating the correctness of Newman J's underlying decision. The refusal of leave was based on procedural grounds and the practical position of the trial, not a determination of whether the original ruling was right or wrong.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed it maintains a general reluctance to interrupt a criminal trial that is already in progress, and that reluctance intensifies when the trial has reached an advanced stage.
  • Under section 5F of the Criminal Appeal Act, where the trial judge has not granted a certificate under section 5(3)(b), an interlocutory appeal requires leave of the Court of Criminal Appeal, not merely the judge's acknowledgment that the matter warrants appellate consideration.
  • A mid-trial refusal to order a fitness inquiry under the Mental Health (Criminal Procedure) Act 1990 does not require immediate appellate intervention: any error can be raised as a ground of appeal against conviction if the accused is subsequently found guilty.
  • Refusing leave in this context did not foreclose the fitness issue permanently. James J noted that if circumstances later justified a fitness inquiry, that question could be revisited.
  • In dismissing the application, the court balanced the accused's procedural rights against the strong public interest in allowing criminal trials to proceed to finality without piecemeal appellate interruption.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), sections 5F and 5(3)(b)
- Mental Health (Criminal Procedure) Act 1990 (NSW)

Cases cited: No cases were cited in the judgment.