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13
Court of Criminal Appeal 19 December 2003

REGINA v WRC

[2003] NSWCCA 394

Also reported as (2003) 59 NSWLR 273
Sexual offencesPublic order & justice offences
CRIMINAL PROCEDURE FITNESS TO PLEAD TEST FOR ORDERING PERMANENT STAY

Citation: Regina v WRC [2003] NSWCCA 394
Court: NSW Court of Criminal Appeal
Date: 19 December 2003
Judge(s): Spigelman CJ; Dunford J; Hidden J

Background

The respondent faced charges of indecent assault under the Crimes Act 1900. An earlier trial on substantially the same indictment in November 2000 had ended in a hung jury. Separately, convictions relating to two other complainants had been quashed by the Court of Criminal Appeal in 2002, and the Director of Public Prosecutions subsequently decided to discontinue those matters.

Psychiatric evidence before the District Court indicated that the respondent was unfit to stand trial, with one psychiatrist expressing the opinion that he was unlikely to become fit within twelve months. Medical evidence also disclosed non-Hodgkin's lymphoma, ischaemic heart disease, and a recent cerebellar infarction affecting cognitive function.

On 27 June 2003, Woods DCJ permanently stayed the indictment as an abuse of process on the basis that the respondent was unfit to be tried. His Honour concluded it was neither necessary nor appropriate to invoke the fitness determination procedure under the Mental Health (Criminal Procedure) Act 1990. The Crown appealed.

  • Whether the District Court was correct to order a permanent stay of proceedings rather than allowing the fitness-to-plead procedure under the Mental Health (Criminal Procedure) Act 1990 to operate.
  • Whether the Mental Health (Criminal Procedure) Act 1990 abrogates the inherent power of a superior court to grant a permanent stay for abuse of process.
  • Whether, on the facts, a permanent stay was an appropriate exercise of discretion in circumstances where a specific statutory procedure existed to determine fitness.

Decision

The Court of Criminal Appeal allowed the appeal, with Dunford and Hidden JJ agreeing with Spigelman CJ's reasons. The Court confirmed two principles operating in parallel. First, the legislature intended that fitness to be tried should be determined by jury under the Mental Health (Criminal Procedure) Act 1990. Second, that Act does not abrogate the inherent power of a superior court to control abuse of its own process.

However, the Court held that a permanent stay is an exceptional remedy. Where a specific statutory procedure with a different decision-maker already exists to resolve the very matters relied upon to justify a stay, there will rarely be circumstances in which allowing that procedure to operate would itself constitute an abuse of process. The Court concluded that an "overwhelming reason" would need to exist before it would be appropriate to bypass the statutory scheme, and no such reason was present on the evidence before Woods DCJ.

His Honour's error lay in purporting to exercise a broadly unfettered discretion without giving proper weight to the existence of the jury-based fitness inquiry mechanism. Because the discretion miscarried in that way, the Court of Criminal Appeal re-exercised it. The respondent's medical evidence, including a median ten-year life expectancy from cancer diagnosis and the identified cardiac risk, did not reach the threshold of making it an affront to common humanity to require him to face the statutory process.

The Court determined that proceedings should continue to allow Part 2 of the Mental Health (Criminal Procedure) Act 1990 to operate, so that a jury could determine the respondent's fitness to be tried.

Orders Made

  • Appeal allowed.
  • Order of Woods DCJ permanently staying the indictment set aside.
  • The operation of Part 2 of the Mental Health (Criminal Procedure) Act 1990 to proceed, so that the issue of the respondent's fitness to be tried may be determined by a jury.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy; it is not a routine mechanism for managing an accused's medical or mental health circumstances where a dedicated statutory procedure already exists.
  • Under the Mental Health (Criminal Procedure) Act 1990, fitness to be tried is intended to be determined by jury, and a trial court must give substantial weight to that mechanism before concluding that a permanent stay is warranted.
  • The existence of a specific statutory procedure with its own decision-maker significantly narrows the circumstances in which bypassing that procedure via an abuse of process stay can be justified; something approaching an overwhelming reason is required.
  • The Court of Criminal Appeal confirmed that the Mental Health (Criminal Procedure) Act 1990 does not abrogate the inherent jurisdiction of a superior court to grant a permanent stay, but the two regimes must be applied consistently with each other.
  • A discretion to order a permanent stay miscarries where the court fails to accord appropriate weight to an available statutory mechanism designed to resolve the precise issues on which the stay is sought.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 81
- Crimes Act 1914 (Cth) s 20B
- Crimes (Mental Disorder) Amendment Act 1983 (NSW)
- Criminal Appeal Act 1912 (NSW) s 5F
- Mental Health (Criminal Procedure) Act 1990 (NSW) ss 4, 5, 7, 8, 9, 10, 11, 11A, 13, 14, 15, 18–28

Cases:
- Bropho v Western Australia (1991) 171 CLR 1
- Eastman v The Queen (2000) 203 CLR 1
- Jago v District Court (NSW) (1989) 168 CLR 23
- Kesavarajah v The Queen (1994) 181 CLR 230
- Potter v Minahan (1908) 7 CLR 277
- R v Burns (No 2) (1999) 169 ALR 149
- R v Hakim (1989) 41 A Crim R 372
- R v Mailes (2001) 53 NSWLR 251
- R v Presser [1958] VR 45
- R v Sexton (2000) 76 SASR 534; (2000) 77 SASR 405
- R v WRC [2002] NSWCCA 210
- Walton v Gardiner (1993) 177 CLR 378