Citation: Regina (C'Wealth) v Sharrouf [No 2] [2008] NSWSC 1450
Court: Supreme Court of New South Wales
Date: 25 June 2008
Judge(s): Whealy J
Background
The accused was one of nine men charged on a single indictment with doing acts in preparation for a terrorist act, contrary to ss 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995. The offence carries a maximum penalty of life imprisonment. The accused had been in custody since his arrest in November 2005 and was committed for trial in April 2007.
Both the Crown and the defence raised the question of the accused's fitness to be tried. The fitness issue was first notified to the Court in November 2007. The parties agreed the Court was exercising federal jurisdiction, and that relevant NSW procedural laws applied by operation of ss 68(1) and 79 of the Judiciary Act (Cth) 1903.
The proceedings involved a three-stage process: first, a fitness determination under the Mental Health (Criminal Procedure) Act 1990 (NSW); second, if unfitness was found, a determination under s 20B(3) of the Crimes Act 1914 (Cth) of whether a prima facie case existed; and third, if a prima facie case was established, a determination under s 20BB about whether the accused was likely to become fit within 12 months and what custodial or treatment arrangements should follow.
Legal Issues
- What is the correct procedure for determining fitness to be tried in a federal criminal prosecution, where there is no Commonwealth legislation governing the fitness hearing itself?
- How should s 20B of the Crimes Act 1914 (Cth) be construed, particularly the meaning of "prima facie case" in s 20B(3)?
- What is the correct test for establishing a prima facie case, and whether the court is required to weigh competing or alternative inferences in a circumstantial case?
- Whether paper (documentary) evidence can be tendered in prima facie case proceedings under s 20B(7)?
- Whether the accused was likely to become fit to be tried within 12 months, and what detention or treatment arrangements were appropriate in the interim?
Decision
Whealy J found that the accused was unfit to be tried. Consistent with earlier rulings in the related Baladjam proceedings, the fitness determination was conducted by judge alone under the Mental Health (Criminal Procedure) Act 1990 (NSW), which the Court had already held applied in this federal context without infringing s 80 of the Constitution.
On the meaning of "prima facie case" under s 20B(3) of the Crimes Act 1914 (Cth), the Court considered the proper test to be applied. Section 20B(6) defines a prima facie case as existing where there is evidence that would, but for the accused's unfitness, provide sufficient grounds to put the person on trial. The Court examined whether, in a circumstantial case, the court was required to weigh competing or alternative inferences. The Court also addressed the admissibility of documentary or "paper" evidence under s 20B(7)(c), which permits the court to seek such other evidence, whether oral or in writing, as it considers likely to assist.
On the question of the accused's prospects of becoming fit, the Court received expert evidence from psychiatrists including Professor Basson of Justice Health. The Court was satisfied that the accused was suffering from a mental condition for which treatment was available within the prison hospital system, specifically the MRRC Screening Unit at Silverwater. The Court was also satisfied that the accused would likely become fit to be tried within 12 months.
Orders Made
- The accused be taken to and detained in the MRRC Screening Unit at Silverwater from the date of the order, or as soon as transfer could reasonably be achieved.
- The accused be kept in the MRRC Screening Unit for a period ending when he becomes fit to be tried.
- Liberty to apply was granted to the parties in the event that any variation of the order or further order was required.
Key Takeaways
- Where no Commonwealth legislation governs the procedure for a fitness-to-be-tried determination in a federal prosecution, the Mental Health (Criminal Procedure) Act 1990 (NSW) applies by operation of ss 68(1) and 79 of the Judiciary Act (Cth) 1903.
- A prima facie case under s 20B(3) of the Crimes Act 1914 (Cth) is established if there is evidence that would, absent the accused's unfitness, provide sufficient grounds to put the accused on trial. Section 20B(6) contains this definition expressly.
- Under s 20B(7)(c), a court conducting a prima facie case inquiry may receive evidence in written or documentary form, not only oral testimony.
- In finding the accused likely to become fit within 12 months, the Supreme Court relied on expert psychiatric evidence and undertakings from the head of Justice Health regarding the availability and adequacy of treatment within the prison hospital system.
- The three-stage statutory framework for unfit accused in federal proceedings (fitness determination, prima facie case inquiry, then disposition) involves the interplay of both NSW and Commonwealth legislation, and the court worked through each stage sequentially.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code Act 1995, ss 11.5, 101.6
- Crimes Act 1914 (Cth), s 20B, s 20BA, s 20BB, Division 6
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Judiciary Act (Cth) 1903, ss 68(1), 79
- Criminal Procedure Act 1986 (NSW)
- Evidence Act
- Constitution, s 80
Cases:
- Baladjam & Ors v R [2008] NSWCCA 85
- R v Baladjam & Ors (7 March 2008)
- R v Baladjam & Ors [No 13] (1 May 2008)
- Doney v R (1990) 171 CLR 207
- Eastman v The Queen [2000] 203 CLR 1
- Kesavarajah v The Queen (1994) 181 CLR 230
- May v O'Sullivan (1955) 92 CLR 654
- Ngataya v The Queen (1980) 147 CLR 108
- Zanetti v Hill (1962) 108 CLR 433
- R v JMR (1991) 57 A Crim R 39
- R v Svonaric [2001] 54 NSWLR 1
- R v Presser (1958) ALR 248
- Saffron v DPP (1989) 16 NSWLR 397
- Wentworth v Rogers (1984) 2 NSWLR 422