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Court of Criminal Appeal 29 March 2001

Regina v T J Tier

[2001] NSWCCA 53

Also reported as 121 A Crim R 509
Drugs
CRIMINAL PRACTICE & PROCEDURE LONG RUNNING TRIAL WHETHER ISSUE RAISED IN GOOD FAITH

Citation: Regina v T J Tier [2001] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 29 March 2001
Judge(s): Sheller JA, Grove J, Kirby J

Background

The appellant was charged with knowingly taking part in the commercial manufacture of amphetamines under the Drug Misuse and Trafficking Act 1985. He had previously been convicted, but that conviction was quashed and a new trial ordered. The retrial commenced in the District Court in mid-1999.

During the retrial, on the day the Crown case was nearly complete, the appellant failed to appear. His solicitor discovered he had been admitted to the psychiatric unit of the Royal Prince Alfred Hospital. Three treating doctors, including the head of the psychiatric unit, diagnosed major depression and each expressed the opinion that the appellant was unfit to adequately defend himself.

The trial judge declined to conduct a formal inquiry into the appellant's fitness to be tried under the Mental Health (Criminal Procedure) Act 1990. He concluded, among other things, that there was only a possibility (not a probability) that the appellant was unfit, and that the question of unfitness had not been raised in good faith. The trial continued and the appellant was convicted. He then appealed to the Court of Criminal Appeal.

  • Whether the trial judge was obliged under the Mental Health (Criminal Procedure) Act 1990 to halt the trial and conduct an inquiry into the appellant's fitness to be tried once the issue was raised.
  • What standard of "good faith" under s 10(2) of that Act must be satisfied before a court is required to conduct such an inquiry.
  • Whether the trial judge applied the correct test in declining to conduct the inquiry.

Decision

The Court of Criminal Appeal held unanimously that the trial judge applied the wrong test and was bound to conduct an inquiry into the appellant's fitness to be tried. The "good faith" requirement in s 10(2) of the Mental Health (Criminal Procedure) Act 1990 is satisfied when a real question of unfitness is raised, meaning a question genuinely or honestly raised. It does not require the party raising the issue to demonstrate, on the balance of probabilities, that the accused is actually unfit.

Sheller JA explained that the trial judge appears to have required something more than "good faith" before the inquiry obligation was triggered. The judge's own acknowledgement that unfitness was a "possibility" was itself sufficient to establish that the question had been raised in good faith. Treating that possibility as insufficient to engage the statutory inquiry mechanism was an error.

Kirby J (with whose reasons the others agreed) identified three further problems with the trial judge's approach. First, the judge effectively determined on the probabilities whether the appellant was unfit, which was a question reserved for the jury once an inquiry was properly commenced. Second, the body of evidence before the court, including opinions from three treating doctors and observations from defence solicitors and counsel, plainly raised a real and substantial question that should have prompted an inquiry. Third, the judge treated the unfitness issue as a contested case between parties, which was an inappropriate frame for the threshold question under s 10.

Because errors concerning an accused person's fitness to be tried are fundamental, no question of applying a proviso to preserve the conviction could arise. The conviction was quashed.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered (subject to any applicable procedure under the Mental Health (Criminal Procedure) Act 1990 and the exercise of prosecutorial discretion).

Key Takeaways

  • Under the Mental Health (Criminal Procedure) Act 1990, the obligation to conduct an inquiry into an accused's fitness to be tried is triggered when the question is raised in good faith, meaning when it is genuine or honestly held, not when unfitness has been demonstrated on the balance of probabilities.
  • A trial judge's own recognition that unfitness is a "possibility" is sufficient to establish that the question has been raised in good faith, and should prompt a formal inquiry under s 10(1).
  • The Court of Criminal Appeal confirmed that the ultimate question of whether an accused is unfit to be tried is one for the jury, not for the judge to resolve at the threshold stage of determining whether an inquiry should be held at all.
  • Treating the unfitness issue as a contest between parties at the threshold stage, or applying the balance of probabilities standard at that point, misapplies the statutory procedure.
  • Errors concerning an accused's fitness to be tried are fundamental in nature. No proviso can cure such an error and preserve a conviction obtained after the trial has been wrongly allowed to continue.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 5, 6, 7, 10, 12
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1)
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW), s 142
- Crimes Act 1958 (Vic), s 393

Cases
- R v Pritchard (1836) 7 Car & P 303; 173 ER 135
- 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
- R v Dashwood (1943) 1 KB 1
- R v Davies (1853) 6 Cox 326
- R v Zhang [2000] NSWCCA 344
- Carlson v The King (1947) 64 WN (NSW) 65
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- R v Maxwell (CCA, unreported, 23 December 1998)
- Central Estates (Belgravia) Ltd v Woolgar (1971) 3 All ER 647