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15
Court of Criminal Appeal 19 October 2001

R v Mailes

[2001] NSWCCA 155

Also reported as (2001) 53 NSWLR 251
HomicidePublic order & justice offences
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION MURDER FITNESS TO BE TRIED STATUTORY INTERPRETATION

Citation: R v Mailes [2001] NSWCCA 155
Court: New South Wales Court of Criminal Appeal
Date: 19 October 2001
Judge(s): Spigelman CJ; Wood CJ at CL; Greg James J

Background

The appellant was convicted of murder and sentenced to 25 years imprisonment with a minimum term of 18 years. Before trial, a jury conducted an inquiry under the Mental Health (Criminal Procedure) Act 1990 (NSW) and found the appellant fit to stand trial. The appellant had an intellectual disability but did not suffer from a mental illness in the clinical sense.

During the trial, counsel for the appellant raised the question of his fitness on multiple occasions. The trial judge declined each application for a further fitness hearing, finding that the material being put forward was not sufficiently "fresh" or "different" from what had already been considered at the pre-trial inquiry.

The appellant appealed his conviction on two grounds: first, that a real question as to fitness had re-emerged during trial and warranted a further hearing; and second, that counsel had been unable to obtain proper instructions from him throughout the proceedings.

  • Whether an accused person 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 (NSW)
  • Whether the trial judge erred by refusing to order a further fitness inquiry once the issue had been raised in good faith during the trial
  • Whether the trial miscarried as a result of these failures, warranting a new trial

Decision

Scope of the Act: intellectual disability included

The Court held that the Mental Health (Criminal Procedure) Act 1990 should not be read down so as to exclude persons who are intellectually disabled but not mentally ill. Drawing on the legislative history and the long-standing common law principle that a person placed on trial must have sufficient understanding of the proceedings to make a proper defence, the Court concluded that Parliament had not purported to define, let alone restrict, the circumstances that could render a person unfit. To read the Act as limited to mental illness would depart from the broader meaning that the common law had consistently given to fitness to be tried.

Refusal to order a further fitness inquiry

The Court found the trial judge erred in treating the applications for a further inquiry as impermissible re-ventilation of a resolved question. Nothing in the Act requires that evidence be "fresh" or "different" before a second inquiry can be ordered. Section 7 of the Act expressly permits the question of unfitness to be raised at any time and on more than one occasion. The statutory presumption of fitness following a prior finding does not remove the obligation on a trial judge to order a further inquiry when a genuine question re-emerges.

Good faith and the obligation to act

The Crown accepted that the fitness question had been raised in good faith by trial counsel. The Court emphasised that where counsel with close contact with an accused raises a real and substantial concern about fitness, it would be difficult to find such a concern was raised other than in good faith. Given the appellant's bizarre behaviour during the trial, there was plainly a genuine occasion for concern. The failure to address that concern constituted a fundamental flaw in the trial process, rendering the trial a nullity and necessitating a new trial.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Mental Health (Criminal Procedure) Act 1990 (NSW) extends to intellectually disabled accused persons, not only those suffering from a mental illness, consistent with the common law's longstanding approach to fitness to be tried.
  • A prior finding of fitness does not resolve the question conclusively or permanently. The question remains open, at least until the jury retires and possibly until a verdict is returned.
  • Under the Act, the question of unfitness may be raised at any time and on more than one occasion. A trial judge is not entitled to refuse a further inquiry simply because the evidence is not characterised as "fresh" or "different" from what was previously considered.
  • Where a genuine question as to fitness re-emerges during trial, the obligation to order a further inquiry applies regardless of how inconvenient or disruptive that may be to the proceedings.
  • Failure to hold a required fitness inquiry constitutes a fundamental flaw in the trial process and may render the entire trial a nullity, not merely an irregularity susceptible to other remedies.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 3, 5, 7, 8, 10(1)(a), 10(1)(b), 11, 15, 18, 21, 32
- Mental Health Act 1990 (NSW), ss 3, 8, 11
- Mental Health Act 1958 (NSW), ss 4, 23, 24
- Lunacy Act 1878 (NSW), ss 58, 59
- Justices Act 1902 (NSW), ss 36, 41(1B)(a), 41(4)
- 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)
- Criminal Law Consolidation Act 1935 (SA), s 269H

Cases:
- R v Young (1999) 46 NSWLR 681
- Radway v The Queen (1990) 169 CLR 515
- Ngatayi v The Queen (1980) 147 CLR 1
- Kesavarajah v The Queen (1994) 181 CLR 230
- Eastman v The Queen (2000) 74 ALJR 915
- R v Presser [1958] VR 45
- R v Pritchard (1836) 7 C & P 303
- R v Dyson (1831) 7 C & P 305
- R v Zhang [2000] NSWCCA 344
- R v Tier [2001] NSWCCA 53
- R v Khallouf (1981) VR 360
- R v Begum (1985) 83 Cr App R 96