R v Young

In this matter, the Court of Appeal clarified the nature of the inquiry to be undertaken by a trial judge in determining the “threshold question” under s 645 Criminal Code 1899 – namely, whether there is “a real question” that should go to the jury of whether the appellant is not of sound mind. The Court emphasised the “importance of keeping separate the threshold question and the ultimate question”, and held that where an appeal succeeds on the basis that the trial judge erred in failing to leave the question to the jury under s 645 the proviso does not apply. The Court of Appeal also considered other grounds of appeal not dealt with in this note.

Fraser and Mullins JJA and North J

15 June 2021

The appellant was convicted after trial before a jury of two counts of fraud with a circumstance of aggravation and 17 counts of insolvent trading. The indictment contained a mix of both State and Commonwealth charges. It was the third trial that had commenced for these offences against the appellant, the jury having been discharged from returning a verdict in the first two. [168], [170].

Mid-way through the third trial, on day 15, the appellant became self-represented when his solicitors and counsel were given leave to withdraw. [169].

The appellant then applied for a mistrial on the basis that he could not defend himself properly being unfit for trial. [169]. The appellant provided the trial judge with a transcript of an earlier proceeding in the Mental Health Court where the psychiatrists and neuropsychologists who gave evidence expressed their opinion that he was not fit for a self-represented trial. While the Mental Health Court had ultimately found that he was fit for trial, the appellant submitted that this was so only on the qualified basis that he be represented, and after certain accommodations were made. [169]. The trial judge was of the view that the Mental Health Court’s reasons did not qualify the appellant’s fitness for trial in that way. [169]. His application was dismissed.

After a convoluted series of events, the trial judge was informed that the State charges on the indictment (counts 1 and 20) had been referred to the Mental Health Court (on the appellant’s application under s 110 Mental Health Act 2016). The trial was adjourned for a short time pending its decision. [171]. Ultimately, the Mental Health Court ruled the appellant fit for trial. [173].

On the trial resuming, the appellant applied to the trial judge to invoke s 645 Criminal Code 1899, requiring the jury to consider whether the appellant was not of sound mind. [174]. For the purposes of his application, the appellant relied upon inter alia reports of two psychiatrists. [178]. Both diagnosed him with a cognitive abnormality. One considered this cognitive abnormality would “grossly compromise” his ability to self-represent. The other considered it would make him “medically unfit” to do so. [180]–[182].

The trial judge refused the application. His Honour’s reasons for refusal took into account the effect of the measures that had been adopted to adjust the trial to make allowance for the appellant’s needs. [191].

Submissions on appeal

The “threshold question” for determination by the trial judge was whether there was a “real question that should go to the jury of whether the appellant was not of sound mind”. [176]. That had to be determined by the trial judge on the basis that the appellant was self-represented. [192].

The appellant contended however that it was an error for the trial judge to have taken into account the consequences of the modifications made for the purposes of assisting the appellant in the trial. [192]–[193]. It was submitted that the inquiry, framed in this way, “addressed more than the threshold issue and decided the ultimate issue that was the question for the jury pursuant to s 645 [Criminal Code 1899]”. [193].

The respondent submitted that the trial judge was not limited to the evidence put forward on the application. Rather, it was submitted that his Honour could consider “all relevant matters” which included “his observations and assessments of the appellant’s capabilities”. [196]. The threshold question was not to be considered “on the basis of opinions expressed by the appellant’s experts in isolation …” [196].

Consideration

Justice Mullins (with whom Fraser JA and North J agreed) found for the appellant on this ground of appeal.

Her Honour emphasised the “importance of keeping separate the threshold question and the ultimate question” ([205]) and that, “[o]nce a real issue was raised, the threshold question was satisfied and s 645 of the Code required the jury to consider and determine whether the appellant was fit to be tried.” [208].

In the circumstances, “the question of whether accommodations and modifications made to the trial process were sufficient to address the appellant’s cognitive deficit were for the jury to decide under s 645”. [208]. It was “implicit from the joint judgment of Mason CJ and Toohey and Gaudron JJ” in Kesavarajah v The Queen (1994) 181 CLR 230 that:

“the jury is entitled to take into account their observations of the accused person during the trial that no doubt would be considered in the light of the submissions made on behalf of the prosecution and the accused person as to the relevance and significance of any such observations to the question before the jury. When the issue of the fitness of an accused person to be tried arises during the course of a trial, the jury that are otherwise hearing the charges are well placed to consider the question of fitness, because of their understanding of the nature of the issues in the trial and the evidence adduced at the trial and what is required of the accused person, subject to the directions given by the trial judge on the minimum requirements set out in Presser for an accused person to be fit for trial.” [199].

The trial judge’s reasons exposed that his Honour “engaged in the merits of whether the appellant was fit to be tried and decided the ultimate question, rather than consider whether the material that was before him for the purpose of determining the threshold issue raised a real issue for the jury to consider about the appellant’s fitness to be tried”. [207].

Disposition

Having found that the question of fitness should have been left to the jury, her Honour considered that the conviction should be set aside.

Z Brereton of Counsel