Citation: Regina (C'Wealth) v Baladjam & Ors [No 13] [2008] NSWSC 1437
Court: Supreme Court of New South Wales
Date: 1 May 2008
Judge(s): Whealy J
Background
Nine accused faced a serious Commonwealth charge of conspiring to do acts in preparation for a terrorist act, carrying a maximum penalty of life imprisonment. In the lead-up to trial, a question arose about one accused's fitness to plead and be tried. Fitness to be tried, in broad terms, refers to whether an accused person is mentally capable of understanding and participating meaningfully in their trial.
When that fitness question was raised, a dispute emerged about the proper procedure for resolving it. Before 1 January 2006, NSW law required a fitness hearing to proceed before a judge and jury unless the accused elected otherwise. The Mental Health (Criminal Procedure) Amendment Act 2005 changed that default position, inserting a new section 11(1) providing that the question of unfitness is to be determined by a judge alone.
Whealy J had earlier ruled, on 7 March 2008, that the new section 11(1) applied to this matter. However, on the eve of the fitness hearing, the accused's legal representatives raised a fresh constitutional argument: that section 80 of the Commonwealth Constitution required the fitness question to be put to a specially empanelled jury, and that proceeding by judge alone would be unconstitutional.
Legal Issues
- Whether a fitness hearing constitutes a "trial on indictment" within the meaning of section 80 of the Commonwealth Constitution, such that the jury trial guarantee in that section applies.
- Whether section 11(1) of the Mental Health (Criminal Procedure) Amendment Act 2005, which mandates judge-alone determination of unfitness questions, offends section 80.
- Whether the fitness issue, as it arose in a Commonwealth prosecution, attracted the constitutional jury guarantee when the applicable procedure was picked up from NSW State law via the Judiciary Act 1903.
Decision
Whealy J held that a fitness hearing is not itself a trial on indictment, nor is it, in any relevant sense, a part of a trial on indictment. The fitness issue is a preliminary, pre-trial matter that sits outside the adversarial system of the criminal trial proper. It does not determine guilt or innocence; it determines only whether an accused is capable of being tried at all.
On that basis, the court concluded that section 80 of the Constitution does not extend to fitness hearings. The mandatory direction in section 80, which preserves the right to trial by jury for Commonwealth indictable offences, operates upon the trial itself, not upon ancillary pre-trial inquiries about the accused's mental capacity to stand trial. The fitness issue is not an essential feature of trial by jury.
The court also found that section 80 played no role in the operation of the Judiciary Act mechanism by which the NSW State law was picked up and applied to a Commonwealth prosecution. Accordingly, section 11(1) of the Mental Health (Criminal Procedure) Act 1990 could validly apply, and the fitness hearing could proceed before a judge alone without any constitutional infirmity.
The court drew on a range of High Court authorities concerning the scope of section 80 and the nature of fitness inquiries at common law, including consideration of American authorities raised by the parties, though those were found to be of limited assistance given the different constitutional and statutory contexts in which they arose.
Orders Made
- The fitness hearing may proceed before a judge without a jury.
Key Takeaways
- A fitness to be tried hearing is not a "trial on indictment" for the purposes of section 80 of the Commonwealth Constitution, and the constitutional guarantee of jury trial does not extend to such proceedings.
- Under section 11(1) of the Mental Health (Criminal Procedure) Amendment Act 2005, unfitness questions in NSW are to be determined by a judge alone; the Supreme Court confirmed this provision does not offend the section 80 guarantee.
- Where NSW State law is applied to a Commonwealth prosecution via the Judiciary Act 1903, the constitutional jury trial guarantee does not automatically attach to every procedural step governed by that picked-up law, provided that step falls outside the trial proper.
- The fitness inquiry was characterised as a preliminary, pre-trial matter concerned with the accused's capacity to participate in proceedings, distinct in character and purpose from the adversarial criminal trial that section 80 was designed to protect.
- American authorities on analogous constitutional provisions were considered but given little weight, given the differences in the relevant constitutional and statutory language.
Legislation and Cases Referenced
Legislation
- Commonwealth Criminal Code Act (ss 11.5, 101.6)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Mental Health (Criminal Procedure) Amendment Act 2005 (NSW)
- Judiciary Act 1903 (Cth)
- Criminal Procedure Act 1986 (NSW)
- Commonwealth Constitution, s 80
Cases
- Ahern v The Queen (1988) 165 CLR 87
- Brownlee v The Queen (2001) 207 CLR 278
- Cheatle v R (1993) 177 CLR 541
- Eastman v The Queen (2000) 203 CLR 1
- Eastman v Director of Public Prosecutions (2003) 214 CLR 318
- Kesavarajah v The Queen (1994) 171 CLR 230
- Ng v The Queen (2003) 217 CLR 521
- Thompson v R (1989) 169 CLR 1
- R v JS [2007] NSWCCA 272
- R v Mailes (2001) 53 NSWLR 251
- R v Ronen [2004] NSWCCA 176
- R v Pritchard (1836) 7 C & P 303
- Presser v R [1958] VR 45
- Ex Parte LaFlore, 445 So 2d 932 (Ala, 1983)
- United States v Curtis (1826) 4 Mason 232