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Court of Criminal Appeal 6 July 2005

Regina v Jeans

[2005] NSWCCA 73

Sexual offencesPublic order & justice offences

Citation: Regina v Jeans [2005] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 6 July 2005
Judge(s): Spigelman CJ, Grove J, Bell J

Background

The applicant faced an indictment in the District Court charging him with sexual offences alleged to have been committed in May 1998. Following his committal and arraignment, concerns arose about his intellectual capacity and fitness to stand trial. Psychiatric evidence from both parties' experts indicated compromised intellectual functioning, with both doctors ultimately expressing the view that the applicant was unfit to be tried.

In February 2003, a District Court judge empanelled a jury to determine the fitness question. That jury returned a verdict of unfitness, and the applicant was referred to the Mental Health Review Tribunal. The Tribunal later determined that the applicant would not become fit to be tried within twelve months. However, the Attorney General took no further steps under the relevant legislation, because he considered the entire 2003 fitness proceeding had been a nullity.

The basis for that view was that the applicant had never actually been arraigned before the jury in 2003, and no determination under section 8 of the Mental Health (Criminal Procedure) Act 1990 had been made by the Attorney General prior to the inquiry. When the Solicitor General eventually made a valid section 8 determination in April 2004, the applicant sought a permanent stay of proceedings and, when that failed, appealed an interlocutory order setting the fitness question down for a fresh hearing by judge and jury.

  • Whether the District Court had jurisdiction to conduct the 2003 fitness inquiry, given that the applicant had not been arraigned and no Attorney General's determination under section 8 of the Mental Health (Criminal Procedure) Act 1990 had been made before it commenced
  • Whether the applicant had in fact been arraigned at any point prior to the February 2003 hearing
  • Whether a fresh fitness inquiry, ordered after the Solicitor General's April 2004 determination, would constitute an abuse of process

Decision

Bell J (with whom Spigelman CJ and Grove J agreed) concluded that the applicant had not been arraigned on 24 July 2000, contrary to the common assumption both parties had operated under at the time of the 2003 hearing. The court record from that date referred only to a not guilty plea indication, and the transcripts of all subsequent proceedings confirmed no arraignment had taken place in the District Court before 3 February 2003.

Because the applicant had not been arraigned, the District Court had not acquired jurisdiction over the proceedings on indictment. Additionally, no Attorney General's determination under section 8 had been made before the 2003 inquiry commenced. Both preconditions for the District Court to conduct a fitness inquiry were therefore absent, rendering the proceedings before Woods DCJ a nullity and the orders made void.

The Court declined to find any abuse of process in the Attorney General's delegate making a fresh section 8 determination in April 2004 and the resulting order for a new fitness hearing. Although the applicant's procedural history had been protracted and unfortunate, the Court held that the prior void proceedings did not preclude a properly constituted inquiry from proceeding.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The District Court's jurisdiction to conduct a fitness inquiry under the Mental Health (Criminal Procedure) Act 1990, before a person has been arraigned, depends on three conditions being met: a bill of indictment having been found, the Attorney General determining that an inquiry be conducted before the hearing, and no subsequent determination that the inquiry is no longer needed.
  • Where neither arraignment nor a valid section 8 determination had occurred before a fitness hearing, the entire proceeding, including the jury's unfitness verdict and the referral to the Mental Health Review Tribunal, was void for want of jurisdiction.
  • A court record indicating that a "plea not guilty" was indicated by the defence does not, of itself, establish that the accused was arraigned in the legal sense required to confer jurisdiction.
  • No abuse of process was established merely because a fresh fitness inquiry was ordered following the nullity of an earlier one, even where the delay had been substantial and the applicant's circumstances remained unchanged.
  • Under section 130(2) of the Criminal Procedure Act 1986, the District Court's jurisdiction with respect to proceedings on indictment attaches only once the indictment is presented and the accused person is arraigned.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 66C(3)
- Criminal Procedure Act 1986 (NSW), s 130(2)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 8, 10(1), 14, 16, 18

Cases:
- Davern v Messel (1984) 155 CLR 21
- Parisienne Basket Shoes Pty Ltd v Whyte (1937-1938) 59 CLR 369
- R v Nicolaidis (1994) 72 A Crim R 394
- Rogers v The Queen (1994) 181 CLR 251
- Subramaniam v The Queen [2004] HCA 51; (2004) 211 ALR 1