SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: In October 1999 the respondent was tried in the Supreme Court at Townsville on two counts of murder and four other offences (including deprivation of liberty) alleged to have been committed on 26 August 1970. The jury at that trial could not agree on a verdict, and he was remanded for retrial in July 2000. The retrial was listed to begin on 25 July 2000, and the court convened on that day, with Mr Donnelly appearing as counsel for the respondent. The respondent was arraigned and called on to plead to count 1 in the indictment (deprivation of liberty); but, before being arraigned or pleading to the whole of the indictment, Mr Donnelly applied for a jury to be empanelled to try the issue of whether under s 613 of the Criminal Code he was capable of understanding the proceedings at the trial so as to be able to make a proper defence. A jury of 12 were sworn to determine that issue, and proceeded to hear evidence from psychiatrists, addresses from counsel and directions from the trial judge, which were as follows:

"Can I ask you to take the two questions then, that I handed to you before? When you return in due course your foreman, or forewoman, will be asked, 'Have you agreed upon your verdict?' And then you will be asked, 'Do you find the accused incapable of understanding proceedings at his trial, so as to be able to make a proper defence?'  If you say, 'No', that is the end of the matter. If you say, 'Yes', you will then be asked, 'If so, what is the cause of such incapacity?'  Now, perhaps it may suit you before you come in to write that down so it can be read from it by your foreman or forewoman."

The jury's answer to the first question was "No", which made it unnecessary for them to consider the second question.

2. It was by then Friday 28 July, and the trial was adjourned to Monday 31 July 2000 to proceed before another jury. On that day, and before any further steps were taken, the matter of the mental condition of the respondent was referred to the Mental Health Tribunal for its consideration and determination in accordance with Part 4 of the Mental Health Act 1974.  In consequence, the learned judge, while saying that he did so "with great regret", adjourned the trial until after that reference had been determined. On 1 September 2000 it came before the Mental Health Tribunal constituted by Chesterman J sitting with two assistants expert in psychiatry. After hearing evidence his Honour delivered a judgment and reasons (R v B [2000] QMHT) on 14 September 2000 finding that the respondent, or "patient" as he is designated by the Act, was unfit for trial.  His Honour ordered that he be detained in the Townsville Hospital as a restricted patient under Part 4 of the Act, but that he be granted leave on terms that included a condition that he reside at 23 Lowth Street, Rosslea, Townsville. In reaching its decision the Tribunal had before it the transcript of the psychiatric evidence and reports tendered at the trial on 25 to 27 July 2000, together with further evidence from Dr Fama. There is nothing that specifically suggests that the respondent's condition had materially deteriorated since the trial; but, of course, it might have done so.

3. Under s 43A(3)(b) of the Act, the Attorney-General now appeals against the finding of the Tribunal. The two grounds specified in the notice of appeal are that: (1) the Tribunal had no jurisdiction to consider the matter once the verdict or finding had been delivered by the jury on 28 July 2000 in accordance with s 613 of the Code; and (2) the reference to the Tribunal amounted to an abuse of process designed to undermine the jury verdict. As will appear, the question to be determined on appeal essentially is whether the provisions of Part 4 of the Act, and in particular s 28D, prevail over the provisions of s 613 of the Criminal Code, which is a question of law.

4. Part 4 of the Act was described in R v Enright [1990] 1 Qd R 563, 573, as providing a process of determining criminal responsibility or fitness for trial as an aid to, and without interfering with, the due processes of the criminal law.  In view of what was later said in Re Bromage [1991] 1 Qd R 1, 11, it may be more accurate to substitute "mental illness" or "unsoundness of mind" for "criminal responsibility"; but, with that qualification, the statement in R v Enright remains an accurate if brief description of the purpose of Part 4 of the Act.  Section 28D(1), which is in Part 4 of the Act, provides:

"References to tribunal

28D.(1)Where there is reasonable cause to believe that a person alleged to have committed an indictable offence is mentally ill or was mentally ill at the time the alleged offence was committed the matter of the person's mental condition may be referred to the Mental Health Tribunal by –

1. a crown law officer; or

2. the person concerned or the person's legal adviser or the person's nearest relative; or

3. where the person has been admitted to hospital under this Act for treatment of mental illness - the director;

for its consideration and determination in accordance with this part."

In the present case it was the wife of the respondent who, as the "nearest relative", signed a reference dated Monday 31 July 2000 referring to the Tribunal the matter of the mental condition of the respondent for its consideration and determination in accordance with Part 4 of the Act.

5. It is to be noted that s 28D(1) of the Act does not in terms confer power to refer to the Tribunal the question of fitness to plead. What it does is to enable the matter of the accused person's "mental condition" to be referred if there is reasonable cause to believe that he "is mentally ill": cf R v Wilson [1998] 2 Qd R 599, 665. There is, it might be thought, a slight element of incongruity in authorising a person, who is reasonably believed to be mentally ill, to refer his own mental condition to the Tribunal; but s 28D(1)(b) expressly contemplates that "the person concerned" may do so, and, in any event, in this instance it was not he but his wife who made the reference. At the trial in July 2000 there was evidence that was capable of supporting an objective belief to the effect that he was "mentally ill", which would have been relevant if the jury had arrived at the second question put to them for decision. The expression "mentally ill" is not defined in the Act and its meaning was not debated before us.

6. The evidence before the jury was that the respondent, who was 88 years old, was suffering from short term memory deficit. Of the psychiatric experts who testified at the trial, Professor James considered that the respondent was not affected by any psychosis and was not insane as described in s 27 of the Code, but that he was suffering from senile dementia. There is authority that such a condition does not constitute mental illness: see RAP v AEP & Another [1982] 2 NSWLR 508. On the other hand, Dr Varghese was satisfied that the respondent was affected by some form of dementia amounting to a disease of the mind; and Dr Rogers, who considered it was not merely senile dementia but probably a disease "of Alzheimer type", said that the respondent's impairment was "a progressive organic brain disease". Mr Walkley, who is a psychologist and not a psychiatrist qualified to diagnose mental illness, was asked in cross-examination and agreed that the respondent had the onset of dementia or a mild form of dementia. Having decided the respondent was capable of understanding the proceedings, the jury was, as I have said, not called on to decide if the respondent was under s 27 of the Code insane or of unsound mind; and, in conformity with his Honour's direction, they did not answer the second question put to them.

7. A finding of the jury on that question was not a prerequisite to the operation of s 28D of the Act. Once reasonable cause existed for a belief that the respondent was mentally ill, it became possible, subject to the first question on this appeal, for the respondent's wife to refer the matter of his mental condition to the Tribunal under s 28D. It was not, as such, a reference of the question already decided by the jury under s 613 of his fitness to plead or capacity to understand the proceedings but of the respondent's "mental condition". Section 28D(1) provided an apparent jurisdictional point of access to the Tribunal's determination on that issue, and, despite the finding made by the jury that he was capable of understanding the proceedings, it was not an abuse of procedure for the respondent's wife to make use of it if it was otherwise available at law. To that extent, the second ground of appeal in this Court is not made out.

8. The reference process, once duly instituted, is then taken up by s 33 of the Act, which provides that, when the matter of a person's mental condition has been referred to it, the Tribunal must do one of three things (a), (b) or (c). The first (a) is to inquire and determine whether the person the subject of the reference was, at the time the alleged offence was committed, suffering from unsoundness of mind. That does not appear to have been suggested in the case of the respondent. The second (b) applies where no such finding is made in the case of an alleged murder, in which event the inquiry is then directed to the question whether the accused was suffering from diminished responsibility; again, that was not suggested here. The third alternative (c) applies if the Tribunal "finds that the person was not suffering from unsoundness of mind", in which event it is to refrain from making a determination of (a) or (b) "but shall inquire and determine whether the person in question is fit for trial". For s 33(1)(c) to apply, it seems to me that an affirmative finding is first required that "the person was not suffering from unsoundness of mind at the material time"; otherwise there is no jurisdiction to act under para (c). Unlike paras (a) and (b) of s 33(1), para (c) does not identify the time to which that state of mind is related except that it is "the material time"; but, like those other two paragraphs, it appears to be related to the time when the alleged offence was committed. See R v Enright [1990] 1 Qd R 563, 570.  Judging by the reasons delivered, the Tribunal regarded itself as acting under s 33(1)(c), but it does not appear to have made any explicit finding that the respondent was suffering from unsoundness of mind either at the time when the alleged offence was committed or at any other time.

9. That might perhaps be fatal to the determination ultimately reached by the Tribunal; but the point was not argued on the appeal, and it seems likely that the Tribunal also conceived itself to be acting under s 33(2). It provides:

"(2)If in a reference made to it the Mental Health Tribunal is of the opinion that the facts of or connected with the alleged offence or of the involvement therein of the person in question are so in dispute that it would be unsafe to make a determination such as is referred to in subsection (1)(a) or (b), it shall refrain from making the determination but shall inquire and determine whether the person in question is fit for trial."

In deference to s 613, the respondent's plea to the arraignment at the trial on 25 July 2000 was limited to the charge in count 1 of the indictment (deprivation of liberty). However, from the fact that the jury at the first trial had not been able to agree, it is a compelling inference that the facts of the murders and other offences alleged against the respondent or his involvement in them were so in dispute that it would have been unsafe to make a determination under either (a) or (b) of s 33(1). The Tribunal was consequently required by s 33(2) to refrain from making such a determination, but instead to inquire and determine whether the respondent was "fit for trial". As has been mentioned, the decision given on 14 September 2000 was that he was unfit for trial. Under s 34(1)(a) of the Act the consequence of that finding of unfitness was that the respondent was ordered to be detained as a restricted patient in Townsville Hospital, and that under s 34A(2) he be granted leave of absence to reside at 23 Lowth Street, which is presumably his home address.

10. The specific question on appeal is whether, having regard to s 613 of the Criminal Code, it was within the jurisdiction of the Tribunal to take up the reference, make the inquiry and determination, and decide that the respondent was unfit for trial. The jurisdictional question was never raised by counsel at the hearing before the Tribunal. Indeed, at the hearing Chesterman J inquired of counsel for the Crown whether he challenged the jurisdiction of the Tribunal to hear the reference, and received the answer that he did not.  Observing that it seemed "a bit odd", his Honour asked if the Tribunal had to hear the reference if it was made, and received an assurance to that effect. Matters proceeded from there.

11. It is, of course, elementary that if a matter is beyond the jurisdiction of a court or tribunal, it cannot acquire and exercise jurisdiction in that matter by the consent of the parties. See Welsh v Anderson (1902) 5 WALR 1, 5-6, and Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808, 820. The position is different with a superior court of record like the Supreme Court, whose jurisdiction and powers are modelled on the courts at Westminster and are rebuttably presumed to extend to all justiciable matters; but although Chesterman J is a judge of the Supreme Court, he was not on this occasion sitting as the Court but as the Mental Health Tribunal, whose jurisdiction is confined to hearing and determining all proceedings "duly instituted before it under the Act". If, therefore, the reference and inquiry were not duly instituted, the consent of the parties could not and cannot validate those proceedings or the ensuing orders for detention and leave of absence. Whether or not there was jurisdiction to inquire and determine the matter of reference depends on the effect of s 613 of the Criminal Code and the inter-relationship of its provisions with Part 4 of the Act.

12. Section 613 of the Code is as follows:

"613 (1)If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether the person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of 12 persons, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether the person is so capable or no.

(2)If the jury find that the accused person is capable of understanding the proceedings, the trial is to proceed as in other cases.

(3)If the jury find that the person is not so capable they are to say whether the person is so found by them for the reason that the accused person is of unsound mind or for some other reason which they shall specify, and the finding is to be recorded, and the court may order the accused person to be discharged, or may order the person to be kept in custody in such place and in such manner as the court thinks fit, until the person can be dealt with according to law.

(4)A person so found to be incapable of understanding the proceedings at the trial may be again indicted and tried for the offence."

In the case of the respondent, the jury at the trial on Friday 28 July 2000 found that he was capable of understanding the proceedings. This had two consequences. One was that, by s 613(2), the trial was to proceed "as in other cases". The other was that the jury was never called upon by s 613(3) to say that he was found not so capable "for the reason that the accused person is of unsound mind or for some other [specified] reason". The court was therefore not required under s 613(3) to decide whether to discharge the respondent or to order him to be kept in custody. It follows that, under s 613(2), the trial should then have proceeded "as in other cases". Instead, and principally because the law was unclear, the learned judge adjourned the trial pending determination of the reference to the Tribunal. It is the correctness of his Honour's action in adjourning the trial rather than proceeding with it that is now in issue.

13. It is plain that the two procedures cannot proceed in tandem. A trial cannot proceed as in other cases if the accused is detained in a security patients' hospital under s 34(1)(a). There is also a degree of inconsistency between s 613(2) of the Code and s 34(1), as well as s 28C(1) of the Act, which it is the function of s 28 of the Act to resolve. What s 28 says is:

"28.Unless otherwise indicated or provided, this Part shall be read and construed with and as being in addition to and in aid of and not in substitution for or in derogation from the provisions of the Criminal Code."

If it were not for that section, the result might be that, being the later enactment, the Act would prevail over the Code. The problem is to determine the meaning and effect of s 28 in the present context. One perhaps obvious purpose of the provision is to ensure that a person accused of an indictable offence is not deprived of the right recognised by the Code to have his guilt or fitness for trial determined by a jury. If the facts of the offence are so much in dispute that it would be unsafe to make a determination under s 33(1)(a) or (b) about his state of mind at the time the alleged offence was committed, then under s 33(2) the Tribunal can do no more than determine whether he "is fit for trial". The same result follows under s 33(1)(c) if the Tribunal finds that the accused was not suffering from unsoundness of mind at that time.

14. The expression "fit for trial" is defined in s 28A to mean "fit to plead at the … trial and to instruct counsel and to endure the … trial, with serious adverse consequences to the person's mental condition being unlikely". Disregarding the concluding words of the definition, the Tribunal has held that the test of fitness for trial under the Act is the same as it is at common law: see Re Topp [2000] QMHT; and no doubt also for s 613 of the Code. The immediate question remains, however, whether s 28 enlarges the rights of an accused person, who under s 613(2) of the Code has already been found by a jury at his trial to be capable of understanding the proceedings, by adding a further opportunity under s 28D(1)(b) of then having his mental condition referred to the Tribunal for it to inquire and determine under s 33(1)(c) or s 33(2) of the Act whether he is fit for trial. In the converse case, it has been held that a finding by the Tribunal that a person is fit for trial does not preclude a contention under s 613 at a subsequent trial that he is no longer fit for trial: R v Wilson [1998] 2 Qd R 599; but that is where there has been no jury finding on the issue.

15. The specific question is whether giving primacy to that Part of the Act involves reading or construing it "in substitution for or in derogation from the provisions of the Criminal Code". The effect of s 28 is by no means clear. However, in Black's Law Dictionary (4^th ed) "derogation" is said to mean:

"the partial repeal or abolition of a law, as by a subsequent act which limits its scope or impairs its utility and force. Distinguished from abrogation, which means the entire repeal and annulment of a law."

This seems to me to be the sense in which "derogation" is used in s 28 of the Act. Part 4 of the Act is not to be interpreted as even partially repealing or abolishing, let alone entirely repealing or annulling, provisions of the Code, but only "as in addition to and in aid of" those provisions. Where direct inconsistency arises with the provisions of the Criminal Code, Part 4 of the Act must be interpreted so as not to repeal the Code provisions. In my opinion, s 613(2) affords an instance of that kind. In providing that, if the jury finds the accused person is capable of understanding the proceedings, "the trial is to proceed as in other cases", s 613(2) must be given its full effect. To that extent, Part 4 of the Act, and in particular s 33(2), do not intrude or impinge upon s 613(2).

16. On behalf of the respondent, Mr Morris QC submitted that, in stipulating that the trial is to proceed "as in other cases", s 613(2) is to be understood as meaning that it is to proceed with all the consequences of other cases, including an order of the Tribunal which places the accused beyond the reach of trial. Ingenious as it is, I do not regard the submission to be tenable. What is contemplated by s 613(2) is that, once the jury have found that the accused person is capable of understanding the proceedings, the trial must proceed as in other cases in which no question has been raised about the accused's capacity to understand the proceedings. To attribute to Part 4 of the Act an operation that altered that state of affairs would be to substitute it for, or to derogate from, that provision of the Criminal Code.

17. Some discussion took place on appeal about the inconvenience that might follow if access to the Tribunal were denied to a person in the position of the respondent who was being tried on a charge of an indictable offence. In the course of a lengthy trial his condition might continue to deteriorate to a point where, even if the jury finding was originally correct, it would no longer be possible for him to comprehend the evidence or to instruct counsel at the trial. That state of affairs is, however, not peculiar to the Act or a product of the fact that the procedure it affords may not be available in such a case. In R v Martin [1973] VR 339, 344, Smith ACJ referred to instances going back to 1750 in which the accused had become unfit in the course of the trial and the jury were discharged. In one of those instances (R v Stevenson (1791) 2 Leach 546) the accused recovered sufficiently to be tried by another jury, which is what is envisaged by s 613(4) of the Code. The powers of a judge under s 592(1A) of the Code of adjourning a trial, and under ss 60 and 61 of the Jury Act 1995 of discharging a jury from giving a verdict and selecting a new jury, are now very wide. There must no doubt be limits on the frequency with which the trial judge entertains such applications in the course of a trial; but the safeguard is that, before a jury is empanelled under s 613(1), it must at least "appear to be uncertain" whether the accused is incapable of understanding the proceedings at the trial. Too many applications under s 613(1) may raise suspicions about their genuineness, and it is for the judge to determine whether or not uncertainty of understanding has become sufficiently apparent to warrant empanelling a jury under the section: R v Enright [1990] 1 Qd R 563, 571-572.

18. In the course of the appeal, some discussion took place about the relative merits and demerits of having a jury or a panel of experts determine fitness to plead. That is a policy matter that we are not called on to decide. Except to the extent that the Act has encroached on it, a jury verdict under s 613 of the Code remains the procedure prescribed by law for determining such questions. Section 28 of the Act operates to prevent the Act derogating from the provisions of the Code. It does so "unless otherwise indicated or provided" in Part 4. There are slight, if only negative, indications in Part 4 that a jury finding under s 613 of the Code is intended to be determinative of that question. Section 28E(4)(a)(i) contemplates that evidence obtained pursuant to a Tribunal order is admissible for the purpose of an inquiry under s 613 "and for no other purpose". This suggests it was expected that a Tribunal hearing would precede rather than follow an inquiry and finding under s 613, as it did in R v Wilson [1998] 2  Qd R 599, where the accused raised the question under s 613 after the Tribunal had held he was fit for trial. Section 38(4) requires a person in relation to whom an order is made under s 613(3) of the Code to be examined by a psychiatrist. Neither of these provisions envisage a case like this in which an inquiry under s 613 has taken place and a finding of fitness has already been made; and they afford some basis for a negative implication of the kind considered in Gould v Brown (1998) 193 CLR 346, 419, 451. What is clear is that they do not provide any indication to the contrary of s 28 that Part 4 of the Act is not to be read in derogation of the provisions of s 613(2) of the Criminal Code.

19. I therefore conclude that the reference purporting to have been made on 28 July 2000 to the Tribunal of the respondent's mental condition was not authorised by or under the Act and that the proceedings in this instance were not "duly instituted" so as to invest in the Tribunal jurisdiction to determine the question of the respondent's fitness to plead. It follows that the decision given and the orders made on 14 September 2000 are not "final and conclusive" under s 43A(1) of the Act, and they do not prevent the trial of the respondent on the indictment against him from proceeding or taking place. It may be desirable to add that in my opinion, if and when the trial proceeds, it will be open to the trial judge to consider again whether it "appears to be uncertain" whether the respondent is under s 613 capable of understanding the proceedings at trial. If at that time the judge considers that to be so, he or she will (unless the law has changed by then) no doubt empanel a jury in accordance with s 613(1) to find whether the respondent is so capable or not. If he is in fact suffering from a disease of the mind which is progressive, his capacity to understand the proceedings at the trial may by then be so impaired as to attract a jury finding under s 613(1) of the Code. Whether or not a jury is so empanelled is, however, a matter for the trial judge to consider in the light of any submissions that may be made to him or her by counsel.

20. Since writing this, I have had the advantage of reading the reasons of Ambrose J. With respect, I am unable to agree with his conclusion that the operation of s 613 of the Code depends on the accused first being called upon to plead to every count in the indictment. The word "indictment" is defined in s 1 of the Code to mean "a written charge preferred against an accused person in order to the person's trial before some court …". When at the trial on 25 July 2000, the respondent was arraigned on count 1 (deprivation of liberty) in the indictment, he was, within the meaning of s 613(1) "called upon to plead to the indictment" meaning "a written charge preferred against an accused person", and that is so, in my opinion, even if he was not then also called on to plead to the other five written charges against him. Any other interpretation would be in high degree inconvenient and, in my respectful opinion, inconsistent with the terms and purpose of s 613. It would have the consequence that, before a jury could be empanelled to determine under s 613 the accused's capacity to understand the proceedings, it would be necessary first to arraign the accused on each and every charge in what might be a lengthy indictment even though, on being called upon to plead to the charge in count 1, it had at once appeared, as it did in the present case, that it was in terms of s 613 "uncertain, for any reason" whether he was incapable of understanding the proceedings at the trial. It would surely be a rare case in which the accused was capable of understanding the proceedings at the trial on one count but not another; which is not how the matter is expressed in s 613.

21. No submission to that effect was advanced on the hearing of the appeal; but, in deference to the views of Ambrose J, the point was referred to counsel for further written submissions. In any event, I am not persuaded that the procedure followed at the retrial invalidated the proceedings or finding of the jury under s 613 that was given on 28 July 2000. The court of trial was the Supreme Court which, being a superior court of record, is not deprived of jurisdiction by an error in procedure. The respondent's remedy in such a case is (or would have been if the trial had proceeded after the finding that there was no want of capacity to understand the proceeding) to appeal in the ordinary way under s 668D(1) against his conviction (if any) on the ground of error of law or miscarriage of justice under s 668E(1) of the Code. That stage was never reached in this instance because the trial was adjourned instead of proceeding "as in other cases" in accordance with s 613(2). If it had proceeded, the respondent would no doubt have been arraigned on the other five written charges preferred against him; or the trial judge might have directed that the respondent be re-arraigned on all six of those charges including count 1, to which he had already pleaded. Whether or not an accused person is re-arraigned at the beginning of a re-trial or at any other time during a trial is a matter for the discretion of the trial judge. Even if not absolutely essential, most judges prefer to have the accused arraigned and plead before the jury who are about to try him or her.

22. I would allow the Attorney-General's appeal; and set aside the decision and orders of the Tribunal made on 14 September 2000.

23. AMBROSE J: I have had the advantage of reading the draft reasons for judgment of McPherson JA and Wilson J.

24. I would agree with the conclusions they have reached and would have nothing useful to add if the s 613 application and determination upon it were legally effective to determine the capacity of the accused to stand trial upon the six counts contained in the indictment.

25. However, examination of the record of proceedings leading to the application purportedly made pursuant to s 613 of the Code on 25 July 2000 indicates that several attempts were made to re-arraign the accused upon only one of six counts on the indictment. The trial judge perceived that the accused was having difficulty hearing the charge when it was read out to him. Eventually he was effectively re‑arraigned upon and pleaded not guilty to count one.  He was not called upon to plead to the other five counts.

26. Under s 594 of the Code it is provided –

“594(1)On the presentation of the indictment or at any later time, the accused is to be informed in open court of the offence with which he or she is charged, as set forth in the indictment, and is to be called upon to plead to the indictment, and to say whether he or she is guilty or not guilty of the charge.

(2)If the indictment contains more than one count, a plea to any number of counts may, with the consent of the accused person, be taken at one and the same time on the basis that the plea to one count will be treated as a plea to any number of similar counts on the same indictment.

(3)The trial is deemed to begin and the accused person is deemed to be brought to trial when the person is so called upon.”

27. Under s 32C(a) of the Acts Interpretation Act 1954 “offence” in s 594(1) includes “offences” and “a written charge” in the definition of “indictment” in s 1 of the Code includes “written charges”.

28. It could not be said, in my view, that the six counts or charges on the indictment upon which the accused was originally arraigned on 30 September 1999 were “similar counts” to count one within s 594(2) of the Code. Further, there is nothing in the record to suggest that he even purported to consent to have his plea to count 1 treated as a plea to all six counts or charges on the indictment.

29. Under r 46(a) of the Criminal Practice Rules 1999, in my view, a proper arraignment upon an indictment containing a number of counts involves informing the accused person of each charge brought against him and asking him whether he pleads guilty or not guilty to each of those charges. Clearly the accused was re-arraigned with respect to only one of six charges contained in the indictment.   I assume that the manner required for arraignment by r 46 was followed with respect to that count.

30. Under s 594(3) the trial was deemed to begin when the accused was called upon to plead to the indictment. I would construe this section as requiring that the accused be called upon to plead to each count or charge on the indictment before his trial upon that indictment could commence. In my view, before either the trial or the s 613 application could proceed with respect to only one count on the indictment, the Crown would have to enter a nolle prosequi with respect to counts to which the accused had not been asked to plead.

31. It appears from the indictment, presented on 3 September 1999, upon which he was first arraigned on 30 September 1999, that in fact the accused was charged upon six counts – two of murder, two of deprivation of liberty and two of indecent assault.

32. Reference to the transcript of the first trial indicates that in fact the accused pleaded not guilty to all counts upon which he was arraigned on 30 September 1999. That arraignment was in accord with the requirements of s 594 of the Code and r 46(a) of the Criminal Practice Rules.

33. A jury was empanelled for his trial on 18 October 1999 which continued until 28 October 1999, when it was discharged because it was unable to reach a unanimous verdict.

34. From the matters recorded on the indictment no. 407/99, there is no record of the accused having been re-arraigned on 18 October 1999 when a jury was empanelled for his trial which commenced on that day.

35. When the jury was discharged because of its inability to reach a verdict, the learned trial judge adjourned the trial of the accused to the next criminal sittings to be held in Townsville and admitted him to bail.

36. Under s 60 of the Jury Act 1995 it is provided-

“60(1)If a jury cannot agree on a verdict…the judge may discharge the jury without giving a verdict.”

37. Under s 62 of the Jury Act 1995 it is provided –

“62(1)When a jury is discharged, the judge may proceed immediately with the selection of a new jury, or may adjourn the trial.

(2)If the defendant in a criminal trial is in custody when the jury is discharged, the defendant remains in custody unless granted bail.”

38. The trial was further adjourned on two subsequent occasions, 17 February and 22 June 2000. It appears from the record that on the second occasion it was intimated that the accused would seek to make an application pursuant to s 613 of the Code when the matter was called on for retrial.

39. In my view there was no necessity to re-arraign the accused when ultimately he attended for his retrial on the date to which it had been adjourned subsequent to the discharge of the first jury on 28 October 1999.

40. The endorsement upon the indictment of the events that occurred on 25 July 2000 reads as follows –

“Plea: none entered

Pre-trial hearing conducted pursuant to s 613 of the Criminal Code to determine whether the accused is capable of understanding the proceedings of a trial so as to be able to make a proper defence.”

41. On a supplementary endorsement sheet to the indictment, it is recorded that the pre-trial hearing into the capacity of the accused to understand the proceedings extended from 25 July to 28 July 2000. The verdict of the jury upon that “pre-trial hearing” is recorded in these terms –

“Accused, [B], is not incapable of understanding proceedings at trial so as to be able to make a proper defence.”

42. There is a further endorsement –

“Trial to begin 31/7/00 at 10AM”

43. There is a further endorsement apparently made on 31 July 2000 in these terms –

“Plea: none entered

Defendant referred to the Mental Health Tribunal.

There is to be no publication of the proceedings before this Court, today, until further order.

Bail extended on same terms and condition as hitherto applied.

Notice to Crown witnesses enlarged.

Matter to be placed on Criminal Callover list.”

44. The endorsement on the indictment that no plea was entered is inconsistent with the clearly recorded plea of “not guilty” in the transcript of proceedings. Whether that endorsement was made upon the trial judge’s refusal in the circumstances to accept the plea of the accused does not emerge from the transcript. The description of the s 613 application as a “pre trial” hearing is inaccurate. A properly instituted application under s 613 proceeds after the trial begins – s 594(3) of the Code.

45. The accused had been arraigned upon his first trial without any application pursuant to s 613 of the Code being made and apparently without any matter being raised as to his mental competence in the course of that trial or prior to 22 June 2000, when it was first intimated that a s 613 application would be made on 25 July 2000. It then of course became possible to refer the question to the Mental Health Tribunal upon any adjournment pursuant to s 592 of the Code.

46. Section 592A of the Code permitted the accused to apply for appropriate directions related to his mental condition at any time after his trial was adjourned on 28 October 1999. See particularly s 592A(2)(g)(h) and (i).

47. Under s 604(1) of the Code, the accused’s plea of not guilty to the charges on the indictment on 30 September 1999 is deemed to have amounted to a demand that the issues raised by those pleas should be tried by a jury, and he was entitled to such a trial – subject at least to the effect of the purported re-arraignment on 25 July 2000.

48. His re-trial was listed for hearing on 25 July 2000. Upon mention on 22 June 2000 the court was informed that it was proposed to make an application pursuant to s 613 of the Code when the accused attended for his re-trial; it seems that material relevant to his capacity to instruct counsel was then placed before the trial judge including a report by one of the psychiatric experts, called upon the s 613 application made on 25 July 2000.

49. In any event, it emerged at an early stage on 25 July 2000 that the accused had difficulty hearing the charge in the first count on the indictment when it was read out to him. That charge was that on 26 August 1970 he had unlawfully deprived Judith Elizabeth Mackay of her personal liberty. When the accused was first arraigned on this count on 25 July 2000, it was perceived that he could not hear what was said. He was again arraigned but again was unable to hear the charge. It was explained to him that he did not have to plead to the charge. He was again arraigned. He obviously heard and understood the first charge when it was read to him for the third time and, in spite of the advice that he had been given that he need not plead to it, he did in fact clearly plead not guilty. The learned trial judge observed “he obviously heard the count read that time.” He had of course pleaded not guilty to all six counts upon his previous trial.

50. No argument was advanced initially upon appeal as to the effect, if any, the plea of not guilty to only one count of the six on the indictment may have had upon the s 613 application. However, at this Court’s suggestion, written submissions were made on this point. No argument was addressed upon the fact that the accused, before pleading not guilty to it, had heard and apparently understood that charge.

51. However, it was clear to all concerned that there was a substantial question to be considered as to the fitness of the accused to stand trial and both the Crown and the accused were prepared to litigate that question pursuant to s 613 as an issue preliminary to the trial of the issues raised upon the indictment; however it could only be litigated “when he was called upon to plead”, when the trial would be deemed to begin under s 594(3), and in my view the fact that he did purport to plead is a matter of no moment. Indeed, it would have been of no moment under s 613 if he had pleaded not guilty to all six counts. I refer to the observations of Smith J in R v Presser [1958] VR 45 at 46 and later in R v Martin [1973] VR 339 at 344.  In my view he should have been called upon to plead to all six counts.

52. Although the jury was asked to determine whether the accused was capable of understanding the proceedings upon his trial upon all six counts, he had in fact been called upon to plead to only one of them – one of the less serious counts – upon his purported re-arraignment on 25 July 2000. In effect he was not re-arraigned upon the other five counts, to which he had pleaded not guilty upon his first trial. There was, in my view, no need to re-arraign him upon any counts before his retrial upon them commenced. He had already pleaded not guilty to each of them. The decision to re-arraign him was probably taken to permit or facilitate an application to be then made under s 613. The question thus arises whether, upon the s 613 application on 25 July 2000, the jury was entitled to consider whether the accused was capable of understanding the proceedings upon his trial, even upon the one count with respect to which he had been called upon to plead, or, indeed, whether, in the circumstances, it could lawfully consider his capacity to understand the proceedings upon all or any of the six counts upon the one indictment initially presented against him.

53. Logically, of course, if the accused were able to understand the proceedings on the one count, one might infer that he was able to understand the proceedings on all the other counts.

54. The reference to the Mental Health Tribunal on 31 July 2000 was based upon the assertion that there was reasonable cause to believe that the accused was at that time mentally ill and it clearly refers to his mental condition as at 25 July 2000 when his retrial upon two counts of murder, two counts of deprivation of liberty and two counts of indecent assault was to commence.

55. The purported s 613 application on 25 July 2000 on one view could relate only to the capacity of the accused to plead to one of those six counts – a count of unlawful deprivation of liberty, the only count upon which he had been re-arraigned. On another view, he was not properly re-arraigned at all upon that indictment if not called upon to plead to each of the counts contained in it. He had of course already pleaded not guilty to each of those counts upon his earlier trial.

56. The issue in fact determined by the Mental Health Tribunal was precisely the same as that in fact determined by the jury in July 2000. If the jury had power upon the s 613 application to determine only the accused’s capacity to understand the proceedings on one of those six counts or, if it had no power to make any determination because the accused had not been properly re-arraigned upon the indictment, the Mental Health Tribunal did have jurisdiction to properly determine his fitness to be tried upon at least the other five counts, and, indeed, if the jury had no power to make a determination with respect to his capacity to plead to the indictment generally because he had not been properly re-arraigned upon it, it had jurisdiction to determine his fitness to be tried upon all six counts. It is necessary, upon the facts of this case, to take this into consideration when determining the effect of s 28 of the Mental Health Act 1974; s 613 contemplates the capacity of an accused person to understand the proceedings upon all the counts in an indictment and not just some of them.

57. While, undoubtedly, a determination by a jury upon an effective s 613 application that the accused is capable of understanding the proceedings upon the trial of charges upon which he is arraigned will conclude that issue – at least as at the time of that determination - it does not, as a matter of law, necessarily follow that such a determination concludes the issue whether he retains that capacity as the trial progresses. I refer to Kesavarajah v The Queen (1994) 181 CLR 230 in this regard although of course the procedural law applicable in this case differed from that under the Code.

58. What ought really to have been properly in issue upon the s 613 application in this case was the capacity of the accused to understand and give instructions upon all six counts upon which he had been properly re-arraigned. Indeed that was the issue tried by the jury. However, it is clear that it was decided for some reason to re-arraign him on only one of those counts; perhaps that reason was the difficulty the accused was perceived to have in hearing what was read out to him.

59. In my judgment, the significant problem with the procedure adopted on 25 July 2000 is that the accused seems never to have been then called upon “to plead to the indictment” under s 613(1). He appears only to have been called upon to plead to one of six counts upon that indictment – and one of the less serious ones at that. There appears to be no reason why he could not have been re-arraigned on each of the other five counts as he was on the first count.

60. One approach in this case might involve construing s 613 as if after the word “indictment”, where it first appears in that section, were inserted the words “or any count or counts upon it.” However, in my view, it is unnecessary and indeed impermissible to adopt such a construction; to do so would be to give no effect to s 32C(a) of the Acts Interpretation Act 1954. There appears to be no reason why a plea could not have been asked of him on each of the other five counts as a plea was asked of him on the first count. Had that been done, the accused would clearly have been called upon to “plead to the indictment” (instead of to part of it) prior to the s 613 application commencing.

61. Subject to this reservation, I would agree generally with the conclusions of McPherson JA and Wilson J, observing merely that, had the accused also been re‑arraigned on the other five counts upon the indictment leading to a jury determination that the accused was capable of making a proper defence, and had the trial then proceeded, it would obviously have been open to the learned trial judge to intervene, in the event that it appeared to him, as the trial progressed, that the accused had become incapable of giving instructions.  See R v Miles [1955] QWN 29 and Kesavarajah v R  (supra).

62. A trial judge is given extensive powers to adjourn a criminal trial during its progress under s 592(1) and (1A) of the Code, should it appear to him or her that an accused is incapable of properly understanding the proceedings or of instructing his legal representative to make a proper defence. Indeed Criminal Practice Rules rr 42 and 43 contemplate the matter in issue here being raised upon an application made under s 592A of the Code.  While, obviously, a trial judge would give very significant weight to a jury’s determination that an accused person was, upon the evidence led before it, capable of giving instructions necessary to make a proper defence, should events emerge in the course of the trial which persuaded him or her that it was doubtful whether at that stage of the trial the accused had the requisite capacity, in my judgment it would clearly be open to the trial judge to discharge the jury and adjourn the trial so that the question of whether the accused was then mentally ill might be referred to the Mental Health Tribunal which, of course, would then have jurisdiction to determine the fitness of that accused for trial.  There is ample power under s 28D(1) of the Mental Health Act 1974 for one of the specified interested persons to refer the matter to the Mental Health Tribunal.  Upon the facts of this case nine months have elapsed since the s 613 determination on 28 July 2000.  One might expect a further reference to the Mental Health Tribunal should the matter be listed for retrial.  In my view, the jury determination of 28 July 2000, even if legally effective, would not be a bar to such further references (Kesavarajah v R (supra)).

63. If the re-arraignment on 25 July 2000 was ineffective, the result would be that the previous arraignment of the accused upon his trial, which resulted in a jury disagreement, would still be effective and it would be unnecessary to re-arraign him in accordance with r 46(a) of the Criminal Practice Rules before embarking upon his retrial upon the indictment presented against him on 30 September 1999.  In my view, an application could have been made pursuant to s 592(1) and (1A) and s 592A of the Code on 25 July 2000 or subsequently instead of the application under s 613.

64. The Mental Health Tribunal would clearly have had jurisdiction to make the challenged determination, had the trial been adjourned for that purpose on 25 July 2000 rather than the purported application being made under s 613. If that application and the determination made upon it were ineffective, as, in my view, they were, then the adjournment of the trial on 31 July 2000 to permit the Tribunal to determine the reference made that day had the same legal consequence as if the adjournment of the re-trial and reference to the Mental Health Tribunal had been made on 25 July 2000, which would clearly have given the Tribunal jurisdiction to conduct the hearing, which it did on 1 September 2000, and to make its challenged determination of 14 September 2000.

65. At common law it would have been open to the trial judge upon the retrial listed for 25 July 2000 to empanel a jury to make the sort of determination contemplated by s 613(1). The Criminal Code, however, is silent as to what steps are to be taken, should it appear uncertain, as the trial progresses, after he has pleaded not guilty, that an accused person remains capable of understanding the proceedings so as to be able to make a proper defence to the charges upon the indictment.  In that situation at least one course open is to adopt the procedure under s 592(1) and (1A) and s 592A of the Code and s 28(D)(1) of the Mental Health Act, to which I have referred.

66. The re-arraignment upon which the Crown Prosecutor embarked, most probably with the assent, if not at the request, of counsel for the accused, seems to have been the only way, under the Code provisions, to have a jury determine the fitness of an accused to stand trial, after a jury disagreement on one trial and prior to his retrial by another jury.

67. Without in any way dissenting from the analysis of the legal position upon the premise accepted by McPherson JA and Wilson J, ie. that the purported s 613 application was properly made and that the finding made upon it had legal effect, for the reasons I have outlined, I am of the view that the s 613 application and the jury determination upon it were fundamentally flawed, because the accused was never called upon to “plead to the indictment” under s 613 upon his re-arraignment before the jury embarked upon consideration of his fitness to plead to it.

68. I am unpersuaded that there is any material on the record which can support the respondent’s contention of an “effective waiver” by the accused of compliance with the requirements of s 594 and r. 46(a) of the Criminal Practice Rules upon re- arraignment.  In my view, an arraignment meeting those requirements was essential to a legally effective application and determination pursuant to s 613 of the Code.

69. In my view, therefore, there was no legal impediment to the Mental Health Tribunal making the challenged determination – at least with respect to the five counts upon which the accused was not called upon to plead and also, as presently advised, with respect to the one count upon which he was so called.

70. I would dismiss the appeal.

71. WILSON J: The respondent B has been charged with two counts of deprivation of liberty, two counts of indecent assault and two counts of murder allegedly committed in August 1970.  This is an appeal by the Attorney-General of Queensland against a finding of the Mental Health Tribunal that he is not fit for trial.

72. The respondent was born on 20 May 1912. He was not charged with these offences until late 1998.  He was tried in October 1999, but the jury could not agree upon verdicts.  A retrial was scheduled to commence on 25 July 2000.

73. The trial began when he was called upon to plead to the indictment (Criminal Code s 594(3)).  He was arraigned on the first count of deprivation of liberty, and pleaded not guilty. His counsel then made an application under s 613 of the Code for the empanelling of a jury to find "whether…[he was]… capable of understanding the proceedings at trial, so as to be able to make a proper defence… or no."  The jury heard evidence from three psychiatrists and a psychologist and was then addressed by counsel and given appropriate instructions by the trial judge.  On Friday 28 July 2000 it determined that the respondent was capable of understanding the proceedings so as to be able to make a proper defence.

74. Section 613(2) of the Criminal Code provides-

"(2)If the jury find that the accused person is capable of understanding the proceedings, the trial is to proceed as in other cases.”

Accordingly, the trial was adjourned to Monday 31 July 2000, when it was to proceed with a fresh jury.

75. By fax sent at 9.49 am on 31 July 2000 solicitors for the respondent’s wife (the same solicitors who acted for him in the criminal proceedings) referred to the Mental Health Tribunal “the matter of the mental condition of … [the respondent] … for its consideration and determination in accordance with the Mental Health … Act 1974 …”. (See s 28D.)

76. After hearing argument the trial judge stayed the criminal proceedings until the reference to the Tribunal had been determined.

77. On 1 September 2000 the reference came before the Tribunal, which treated it as an inquiry whether the respondent was fit for trial (Mental Health Act  s 33(1)(c) and (2)).  By s 28C(5) of that Act, any person concerned in the proceedings before the Tribunal was entitled to appear.  There were appearances by the prosecutor (instructed by the Director of Public Prosecutions), counsel for the Director of Mental Health (instructed by the Crown Solicitor) and counsel for the respondent (instructed by Legal Aid Queensland).  There was no challenge to the jurisdiction of the Tribunal; indeed, it was expressly conceded by the prosecutor.  Needless to say, the Tribunal could not acquire a jurisdiction it otherwise lacked by consent of the parties.  The transcript of proceedings before the trial judge on the application under s 613 of the Criminal Code was tendered by the prosecutor, together with reports by the following -

1. Dr KL McLachlan, general practitioner, dated 6 April 2000 (in relation to the respondent's physical fitness to stand trial);

2. Dr Basil James, psychiatrist, dated 21 April 2000, 21 June 2000 and 22 July 2000;

3. Dr FT Varghese, psychiatrist, dated 17 July 2000;

4. Mr RM Walkley, psychologist, dated 24 July 2000;

5. Dr J Rogers, psychiatrist, dated 25 July 2000; and

6. Dr P Fama, psychiatrist, dated 22 August 2000.

All except Dr McLachlan and Dr Fama had given evidence in the application under s 613.  Dr Varghese and Dr Fama also gave oral evidence before the Tribunal.  The evidence was to the effect that the respondent was suffering from dementia rendering him unfit for trial.  There was some difference of opinionas to whether it was of an Alzheimer's type. In any event,his short term memory was so impaired that he was unfitfor trial, and his condition was progressive and inexorable.  There was, however, no evidence of any change in his condition between late July 2000, when the jury made its determination, and September 2000, when the matter came before the Tribunal.  On 14 September 2000 the Tribunal found that he was not fit for trial, and ordered that he be detained as a restricted patient under Part 4 of the Mental Health Act in the Townsville General Hospital, but that he be granted leave on certain conditions.

78. This appeal has been brought by the Attorney-General pursuant to s 43A (3) of the Mental Health Act, which provides that an appeal may be instituted by the person to whose mental condition the decision relates or the Attorney-General.  The grounds of appeal are –

1. that the Tribunal had no jurisdiction to consider the matter once the verdict had been delivered by the jury in accordance with s 613 of the Criminal Code; and

2. that the reference to the Tribunal in those circumstances amounted to an abuse of process designed to undermine the verdict of the jury.

79. The relevant provisions of the Mental Health Act are contained in Part 4 of that Act.  Section 28 provides -

"Construction of part with the Criminal Code

28.Unless otherwise indicated or provided, this part shall be read and construed with and as being in addition to and in aid of and not in substitution for or in derogation from the provisions of the Criminal Code."

80. Senior counsel for the appellant submitted that the Tribunal did not have authority to consider and reverse a determination of a jury under s 613 of the Criminal Code.  An inquiry under the Code and a reference to the Tribunal offered alternative procedures for the resolution of the same question, but while a reference to the Tribunal might have preceded an investigation before a jury, once the jury had determined he had the relevant capacity, the legislative command in s 613(2) that the trial proceed as in other cases could not be circumvented by a reference to the Tribunal.  To hold otherwise would be to derogate from the provisions of the Code.

81. Senior counsel for the respondent submitted that the two procedures are not mutually exclusive. "To proceed as in other cases" in s 613 of the Code means to proceed as if the issue of fitness to stand trial had not been determined, and there may be a valid and effectual determination by the Tribunal that a person is unfit for trial at any time, whether before or after the commencement of the trial.  In that way the procedures under the Mental Health Act are "in addition to" those under the Code.

82. By s 28D of the Mental Health Act,  the matter of the mental condition of a person alleged to have committed an indictable offence may be referred to the Tribunal where there is reasonable cause to believe that he or she "is mentally ill".  It was not suggested before the Tribunal or this Court that that precondition had not been met.  Such a reference may be made by a Crown law officer, the person concerned or his or her legal adviser or nearest relative, or, where the person has been admitted to hospital under the Act for treatment of mental illness, by the Director of Mental Health.  Senior counsel for the respondent laid some emphasis on the fact that the respondent's wife had not been a party to the proceedings before the jury, and on her right to refer the matter to the Tribunal.  I do not find this a compelling submission, because the primary object of the procedures of the Mental Health Act, like that of the procedures in s 613 of the Code, is the protection of a relevantly incapacitated person.  See R v Enright [1990] 1 Qd R 563 at 573 per Lee J; and see, generally, Eastman v R (2000) 200 ALJR 915 at 924-28 per Gaudron J, 989 per Callinan J.

83. The issue addressed in s 613(1) of the Criminal Code is whether an accused person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence (as to which see Ngatayi v R (1980) 147 CLR 1; R v Presser [1958] VR 45 at 48; R v House [1986] 2 Qd R 415 at 422), whereas that raised by s 33(1)(c) of the Mental Health Act is whether a person is fit to plead at his or her trial and to instruct counsel and to endure the trial with serious consequences to his or her mental condition being unlikely (see s 28A).  As the Tribunal observed, in the circumstances of this case it was the same question –

“[15]It is, to say the least, unusual that the Tribunal should be asked to conduct an inquiry into a patient's fitness for trial immediately after a jury has determined the identical question under s 613 of the Criminal Code. The inquiry undertaken by the Tribunal pursuant to s 28D and s 33(1)(c) is to provide an answer to the same question a jury is asked to determine when it is empanelled pursuant to s 613, at least where, as in the present case, there is no question of the patient's ability to endure a trial.  'Fitness to plead and instruct counsel' is, I apprehend, the same as the capacity of understanding proceedings at the trial so as to be able to make a proper defence.

[16]It is apparent therefore that the Tribunal has been asked to undertake the very same inquiry which a jury considered six weeks ago.  The procedures are surely meant to operate as alternatives ...”

However, the questions would not be the same in every case.  Under the Code the question whether a person is capable of understanding the proceedings may arise "for any reason”, not necessarily referable to his or her mental status - for example, because he or she is deaf and dumb or because of language difficulties.  See Ngatayi v R at 7 per Gibbs, Mason and Wilson JJ; and see Kesavarajah v R (1994) 181 CLR 230 at 240-4 per Mason CJ, Toohey and Gaudron JJ; Eastman v R at 923-24 per Gaudron J. (The last of these cases was concerned with unfitness during the course of a trial rather than at its commencement, but the relevant test was similar.) On the other hand, an investigation by the Tribunal is necessarily one related to a person's "mental condition", and it extends to a person’s capacity to endure a trial.

84. Our system of criminal law accords primacy to the decision of a jury on questions of fact, subject only to limited rights of appeal. There is no right of appeal from a jury determination under s 613 of the Code.  Even though a proceeding under s 613 falls outside the adversarial system (Eastman v R at 969 per Hayne J), it is a determination for a purpose in the criminal law, and so must be accorded full and unqualified recognition: R v Storey (1978) 140 CLR 364 at 400 per Mason J. This is confirmed in the direction in s 28 of the Mental Health Act that the provisions of Part 4 of that Act are not to be read and construed in substitution for or in derogation from the provisions of the Code.

85. As this Court held in R v Wilson [1998] 2 Qd R 599, there are provisions in the Mental Health Act which contemplate a proceeding under s 613 of the Code after there has been a determination of fitness for trial by the Tribunal. See s 28E(4)(a)(1).  Where a jury makes a finding of relevant incapacity under s 613 of the Code, the court may order the person to be kept in custody in such place and manner as it thinks fit until he or she can be dealt with according to law: s 613(3).  If such an order is made, the person is to be dealt with under the Mental Health Act: see s 38 of that Act.  There is no express provision for a jury determination that a person has the relevant capacity to be referred to the Tribunal.

86. I accept the submission of counsel for the appellant that those affirmative indications that a jury determination may follow a reference to the Tribunal bear a strong implication against a legislative intention that a reference to the Tribunal may follow a jury determination. See Gould v Brown (1998) 193 CLR 346 at 419 per McHugh J, 451 per Gummow J.

87. A person may be fit for trial at its commencement but become unfit during the course of the trial. Where that unfitness is alleged or appears to be because of unsoundness of mind, the jury must consider the matter, and if it finds the person to be of unsound mind, the court is required to order him or her to be kept in strict custody until he or she is dealt with under the Mental Health Act: Criminal Code    s 645.  In other cases, the court may accord fairness to him or her by discharging the jury under s 60 of the Jury Act 1995 and adjourning the trial under s 592 of the Code.  It would be to derogate from the provisions of the Code to read and construe the provisions of the Mental Health Act as allowing a reference to the Tribunal while the person is in the charge of the jury.  I reject the submission of counsel for the respondent that there may be a valid and effectual reference to the Tribunal during the course of a trial.

88. I conclude, therefore, that the Tribunal lacked jurisdiction.

89. It is not necessary for me to consider the submission that the reference to the Tribunal amounted to an abuse of process. Suffice it to say that I respectfully agree with McPherson JA that it was not an abuse of process for the respondent's wife to make use of s 28D(1) of the Mental Health Act if it was otherwise available at law.

90. I have read the reasons of Ambrose J and the observations of McPherson JA thereon. For the reasons advanced by McPherson JA I consider that the respondent was “called upon to plead to the indictment” within the meaning of s 613 of the Code when he was arraigned on the first count of deprivation of liberty.

91. I would allow the appeal, and order that the decision and orders of the Tribunal made on 14 September 2000 be set aside.