Abdulla v The Queen [2006] HCATrans 269 (2 June 2006)

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Abdulla v The Queen [2006] HCATrans 269 (2 June 2006)

Last Updated: 6 July 2006

[2006] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A56 of 2005

B e t w e e n -

SCOTT BRETT ABDULLA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 2 JUNE 2006, AT 10.30 AM

Copyright in the High Court of Australia

MS R.E. DAVEY: If the Court pleases, I appear with MR S.D. OWER for the applicant. (instructed by Stuart Andrew)

MR P.R. BREBNER, QC: If the Court pleases, I appear with my learned friend, MR T.J. HEFFERNAN, for the respondent. (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ: Yes, Ms Davey.

MS DAVEY: If the Court pleases, this matter concerns the proper construction of the scope of section 269H of the Criminal Law Consolidation Act. The applicant is a deaf and mute Aboriginal. He suffered deafness because of meningitis as an infant. He is mute, principally, as the reports reveal, because he has been environmentally disadvantaged and he has never learned any adequate means of communication. He has – and it was not disputed at first instance – he is effectively deaf and mute.

GLEESON CJ: What are the two competing possibilities as to how the system might deal with him? He is the subject of charges - - -

MS DAVEY: Yes, he is.

GLEESON CJ: Of allegations. What are the competing possibilities?

MS DAVEY: Chief Justice, the competing possibilities are that he just be dealt with under 269H or that he be dealt with under the Commonwealth principles with respect to fair trials such that an order would be made or, in the event that it was found that he could not receive a fair trial, that the matter be stayed. They are the two competing possibilities. There is no other legislative scheme with respect to physical disability or physical unfitness operative in South Australia.

GLEESON CJ: Has there been any finding that he could not receive a fair trial?

MS DAVEY: Yes, there has been, both at first instance and in the Court of Appeal.

GLEESON CJ: So the competing possibilities are that he is dealt with under the procedure that you mentioned first, or he is not dealt with at all?

MS DAVEY: That he is dealt with by way of....., yes.

GLEESON CJ: Yes.

MS DAVEY: The point that we say warrants special leave is a concise point and it is a point that has never been considered by this Court and, indeed, it has only had very limited consideration by the Court of Appeal in South Australia. We note that on other occasions this Court has considered the proper scope and application of similar provisions but differing provisions operative in other States, in the case of Kesavarajah, for example, concerning the Crimes Act (Cth) and the Crimes Act (Vic) and Eastman of course considering the Crimes Act (ACT). In those cases of course special leave was granted and indeed..... But section 269H has no equivalent in any other Australian jurisdiction. We say that this is a special leave point because of the need to correct an error that we say occurred to ensure procedural regulatory because the finding of the Court of Criminal Appeal must lead to a miscarriage of justice.

May I explain, your Honours, that the applicant has not been finally dealt with in South Australia. The matter came before the Court of Appeal pursuant to the provisions of the Criminal Law Consolidation Act which permit issues.....trial being determined. So the applicant is in a state thus far where it has been determined that he was unfit, it has been determined that he come within section 269H, but the processes that flow from that have not yet been invoked. He remains on bail at this time.

I will take the Court in a moment to Part 8A of the Criminal Law Consolidation Act and I will show the Court in a moment, if your Honours please, the consequences that flow from a finding of section 269H. The final preliminary point I make is obviously the proper scope and interpretation of section 269H is of great importance for the criminal law of South Australia. If I may take your Honours for a moment to section 269H and particularly – and in Part 8A.....in a moment to section 269H. It is the first of the documents that appear in our copy materials.

GLEESON CJ: It is in Division 3.

MS DAVEY: That is correct. Section 269H is in Division 3, but it forms part of Part 8A which appears in full, including section 269H and Division 3, in the materials. Both the applicant and respondent have included the Part in their material. If I may take a few moments to take your Honours through the scheme of Part 8A in order to see section 269H in context.

If the Court pleases, Part 8A is entitled “Mental impairment”. It is the part of the Criminal Law Consolidation Act and the only legislative enactment in South Australia that deals with the situation where a person is mentally impaired either at the time of committing an offence or unable to be fairly tried because of mental impairment, thus the term used by the legislation. You will note of course that pursuant to section 269A, “mental impairment” is defined as including:

(a) a mental illness; or

(b) an intellectual disability; or

(c) a disability or impairment of the mind resulting from senility,

but does not include intoxication.

Division 2 of Part 8A concerns the issue of mental competence to commit offences. Division 3 of course concerns the topic that we are here concerned with: mental unfitness to stand trial. It is important, we submit, that it is noted that Parliament has used the words “Mental unfitness to stand trial”, not simply “Unfitness to stand trial”.

HAYNE J: But that is an expression different, is it not, from the two other expressions we find in the Act: “mental illness” and “mental impairment”?

MS DAVEY: That is correct, your Honour, but it is also different from the expression used both at common law and in other legislative provisions elsewhere that simply refer to “unfitness to stand trial”, so that the Parliament has used the term “Mental unfitness to stand trial”. Section 269H uses the term “mentally unfit” and refers to a “person’s mental processes are so disordered or impaired”. The use of the word “mental” or “mentally” appears again and again throughout Part 8A, both within Division 3 and then in Division 4 which deals with the consequences of such determinations.

GLEESON CJ: What, if any, provisions would apply to a person who was comatose?

MS DAVEY: If the evidence was that a person who is comatose suffered a mental injury or deficiency in some way, it would come within section 269H. Another example perhaps, to follow on from that line of thought, is what about a person who suffers a physical illness such that they are unfit to stand trial. An example that has come before the courts is someone who suffers from a very serious heart condition such that if they were to stand trial it could lead to very serious injury or even death and, in those circumstances, we say section 269H plainly does not operate as the section is not concerned with physical illness or disability at all. We would then turn to the common law principles in that case.

There are cases – they are probably rarer – where a physical disability is such to render a person unfit to stand trial. That is our point here, of course, that the applicant does not suffer any disorder of his mind. He suffers from a physical disability. The only connections with his mind I suppose are that his ears are on his head and that his ears are connected by the central nervous system to his brain, but the medical evidence in this case suggests –and it is uncontroverted – that there is no deficiency or damage to this man’s mental processes or a mental incapacity or any impairment of his brain in any way at all. He simply cannot hear.

If I return to the scheme of Part 8A, section 269H and the following provisions all use the term “mental” or “mentally”, which must have, in our submission, some work to do, that term. It becomes quite apparent, in our submission, that this term has work to do when one turns to Division 4 whereby the consequences of such a finding are set out. That commences at section 269O whereby a defendant is either released unconditionally or liable to be subject to a supervision order which may involve the imposition of a limiting term equivalent to a term of imprisonment.

Importantly, in section 269Q the legislation requires that the Minister provide a report upon the mental condition of the defendant and, even more importantly, in our submission, section 269T provides that:

In deciding the proceedings under this Division, the court should have regard to –

(a) the nature of the defendant’s mental impairment –

Now, “mental impairment” is defined by the legislation. As I mentioned earlier, in 269A:

“mental impairment” includes –

(a) a mental illness; or

(b) an intellectual disability; or

(c) a disability or impairment of the mind resulting from senility,

but does not include intoxication.

And “mental illness” of course is defined.

GLEESON CJ: Is it part of your argument that the expression “the person’s mental processes are so . . . impaired” in section 269H in the context is a reference to mental impairment as defined?

MS DAVEY: That is so.

GLEESON CJ: What is the provision that activates a declaration that a person is liable to supervision?

MS DAVEY: Section 269M is the process – once an inquiry is commenced, your Honour, 269M sets out that there are two alternatives. It can either be determined at – have a trial for mental fitness first and then the objective elements, or the other way round, depending on the circumstances. If we turn to 269M(2), it provides that:

If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

So 269M(2) is the provision with respect to the procedure with respect to determination of whether or not a person is liable to supervision, and then 269O becomes operative if there has been such a declaration.

We say that of course the Act does not define “mental” and any dictionary definition – I think my learned friend and I are ad idem about this, that any dictionary definition of “mental” means of the mind, it plainly means.....When one looks at the consistent use of the term and the way – the mechanics, if you like, of the way in which a supervision order is ultimately determined, and the headings of the Part itself and the definitions that appear there and the scope of the definitions thereof, we say that a plain reading of section 269H is such that it does not include a physical condition or state whereby communication cannot occur.

We say that at the majority decision at first instance, if the Court pleases – Justice Duggan’s statement which we argue with appears at page 39 of our application book. At page 39 at point 30 his Honour says this – and his Honour has referred to an analysis of the previous common law and statutory provisions operating in South Australia:

Unlike the repealed s 293, s 269H does not refer to a condition, but rather a consequence, namely, the impairment of the mental processes. The phrase “mental processes” is wide enough to include the activity involved in receiving information as well as retaining and understanding it.

Now, essential to our argument, if the Court pleases, is that we take issue with that statement. We say that the term “mental processes” cannot be read in that wide fashion. Any more than moving my hand can be said to be a mental process, the ability to hear cannot be said to be a mental process within the meaning of the legislation. Similarly, with Justice Besanko we take issue – and he is the other member of the majority – and I refer here to page 52 of our application book where he considers the proper interpretation of section 269H. He says at about point 10:

In my opinion, the term “mental processes” should be given a wide meaning and includes the ability to receive information, process it and respond to it. If that ability or function of the mind is impaired or disordered then the defendant’s mental processes are disordered or impaired within s 269H and it matters not if the impairment of the ability or function results from a physical condition.

Now, clearly there will be times when there is a difficult issue, a factual issue, about whether there is a physical impairment or a mental impairment. This is not, in our submission, such a case. There is, both from the reports of Dr Raeside and the speech pathologist, no suggestion at all of any impairment with respect to any of the functioning of this man’s brain.

We finally make these brief points with respect to the proper construction of section 269H. It is difficult to believe in the year 1995, when this Part was enacted, that a modern legislature would intend to include a person who is deaf and mute within a group who is described as mentally impaired.

GLEESON CJ: Unless the purpose of the legislation was beneficial - - -

MS DAVEY: Well, it is difficult in this day and age - - -

GLEESON CJ: - - - and was intended to confer a benefit on people like that.

HAYNE J: Not least the benefit that at the end of the objective inquiry they are found not guilty of the offending.

MS DAVEY: Well, by 1995 there had developed another body of the common law with respect to fair trial and the court’s inherent powers with respect to a stay, but was not in existence of course in 1790 or 1830 when persons who were deaf and mute were dealt with.

GLEESON CJ: What do you say about the use that is sought to be made against your argument of the parliamentary history and what was said in Parliament about the legislative intention?

MS DAVEY: I say that, as Justice Besanko himself had to acknowledge, that the parliamentary speech is itself ambiguous. It is not plain at all.
There is no express reference to a person who is deaf and mute. There is no express reference to an intention to encompass persons who suffer a physical disability within section 269H and, therefore, we say – I mean, if it is intended that persons who are deaf and mute are to be covered as they had been previously in the common law within this modern provision, then the matter would be quite settled. But, as I think the majority acknowledged, it was not clear and, in our submission, it is unhelpful.

GLEESON CJ: Drawing a hard and fast distinction between the physical and the mental is not itself very modern, is it?

MS DAVEY: No, but the notion that a deaf and mute person, as the common law referred to by the majority determined, is insane is antiquated. It would have been thus so simple if the Parliament of South Australia had intended to cover any disability with respect to section 269H had they simply said so, as they had in the Northern Territory and indeed in Western Australia. If the Court pleases.

GLEESON CJ: Thank you, Ms Davey. Yes, Mr Brebner.

MR BREBNER: If the Court pleases, it is conceded that if the applicant is not covered by section 269H, then a stay is the only and indeed the only appropriate remedy which is available in order to prevent an unfair trial. My fundamental submission is the interpretation suggested is neither clearly expressed nor clearly implied in Part 8A of the Act. I respectfully adopt what has fallen from the Court about the beneficial effects of the provisions insofar as they might relate to alleged defendants in the applicant’s position and it is my submission that Parliament obviously intended that a court should determine if a person has in fact committed the actus reus of an alleged offence if he can properly be brought to trial on that issue, if nothing else.

As the Court of Criminal Appeal pointed out, by the time Part 8A was introduced into the Act, the extended meaning that the common law gave to the word “insane” for the purposes of fitness to be tried, covering as it did deaf mutes who by reason of their impairments failed the test of fitness to be tried, was well entrenched, and it is my submission that the previous procedures relating to disposition of persons found to be unfit to be tried is helpful.

Justice Debelle deals with it in a summary form at page 42 of the application book, lines 35 and following. A person found unfit to be tried was originally dealt with by section 293 of the Act. Originally such persons were detained at the Governor’s pleasure, but from 1972 the situation was ameliorated and the Governor and then the court were given a discretion to release persons detained at the Governor’s pleasure on licence subject to conditions. This discretion is taken up and expanded by section 269O to U which gives the court a wide discretion for the disposition of persons found mentally incompetent to commit offences or, indeed, unfit to be tried.

It is my submission that it would be very surprising if Parliament intended to exclude deaf mutes from the ambit of persons who are unfit to be tried, thus removing them from the classes of people who are liable to detention and supervision if they have committed the actus reus of the crime charged. It would be even more surprising, in my submission, if Parliament had intended that the exceptional benefit of a stay should be employed to cover the gap.

GLEESON CJ: How do other Australian States deal with this particular problem?

MR BREBNER: In Western Australia at least – and this is covered in Kesavarajah’s Case – their Act states “unfit to be tried for any reason whatsoever” or words to that effect. There is certainly no ambiguity in their Act and it is plain that it extends to physical as well as mental causes in the strict sense of the expression. As far as the other States are concerned, I am unable to answer that question.

GLEESON CJ: The argument against you essentially is that when section 269H uses the expression “if the person’s mental processes are so . . . impaired that”, in the legislative context it is talking about mental impairment as defined. What is your response to that argument?

MR BREBNER: My response to that is that if Parliament had intended that to be so the words “mental illness” or “mental impairment” would have found their way into section 269H or “mental processes” would have been incorporated into the definition of “mental illness” or “mental impairment”, which definitions are found in 269A. It is my submission that Parliament plainly intended “mental processes” to have a different meaning and, as the majority of the Court of Criminal Appeal pointed out, the words are wide enough to encompass the impairment of mental processes, that is to say the ability to bring the mental faculties to bear on the question at hand brought about by physical.....

It is my submission that the substantive provisions of Part 8A dealing with mental incompetence to commit offences bear that submission out when they are compared and contrasted with section 269H. The substantive provisions that deal with persons who are mentally incompetent to commit offences and the provision about persons who are to be regarded as unfit to be tried both.....in the common law.

Sections 269A and C when read together provide that persons suffering mental impairment, which is defined to include a mental illness in the sense of a pathological infirmity of the mind and an intellectual disability, shall be incompetent if they do not know the nature and quality of their act, do not know that the act is wrong or are unable to control the conduct.

GLEESON CJ: How does the definition of “mental impairment” apply, if at all, to someone who has suffered brain damage as a result of substance abuse?

MR BREBNER: On a confined reading of the section, it might. If it has the requisite effect, in other words, the mind was incapable of understanding the nature and quality of the act or its wrongfulness.

GLEESON CJ: The distinction between mental and physical impairment is not very bright.

MR BREBNER: No, it is not. Of course “mental illness” is defined as “a pathological infirmity of the mind”. Whether an illness brought about by substance abuse can be described as pathological or not is another question but, in my submission, it is not a question that necessarily needs to be answered to determine the fate of this application. It is essentially my submission that the regime dealing with a person’s mental incompetence to commit offences can be properly characterised as an adoption – an adoption and an extension of the M’Naghten rule which, like the common law, focuses on illness of the mind properly so-called.

It is important, in my submission, that section 269H adopts the common law test of unfitness to be tried in the sense of the degree of comprehension of matters relating to the trial and it does so in the context not of mental impairment or mental illness as defined for the purposes of mental incompetence, but in the context of mental processes which are.....and like the common law, section 269H focuses on cognitive ability and not exclusively on illnesses of the mind properly so-called.

It is thus my submission that section 269H discloses an intention to retain – or Part.....discloses a clear intention to retain, quantify and expand the common law principles relating to capacity to commit offences and capacity to be tried, importantly, in my submission, in language which abandons archaic expressions and labels and is thus unlikely to offend modern day sensibilities. It is my submission that this intention is confirmed by the second reading speech. The relevant passages are set out in the reasons of Justice Besanko at application book page 53, lines 10 to 40, and I stress the passage at about line 12:

The rules about when a person is or is not “fit to plead” have not caused great difficulty and are preserved in this Bill. The same, however, cannot be said of the consequences of being found unfit to plead.

I also stress line 25:

the legislation is archaic and offensively worded and is, in many respects, ignored in practice –

It is my submission for this reason that the majority were plainly correct in holding that “mental process” could be given a wide meaning and the words “mental processes” are apt to cover the ability of the mind to receive and process information in an orderly and rational manner and to reach a reasonably sensible conclusion accordingly and it is my submission Parliament recognised, by not defining “mental processes”, that the ability to do so can be impaired by physical causes and that mental processes can be disordered or impaired without there being an underlying mental illness.

As far as physical disabilities are concerned, many physical disabilities do not prevent the person from comprehending the nature of the trial process and do not prevent the person from making rational decisions at the time.....However, that is not the situation in the case of a deaf mute, whose physical disability may, depending obviously on that person’s ability to communicate by written or other means, may not be able to bring his faculties to bear on the questions relating to a proper conduct of his trial.

Finally, the provisions relating to the reports on mental conditions, in my submission, are inconclusive. They are wide enough to include the ability to receive and process information and the words “if any” after the words “mental impairment” where they appear in those submissions can, in my submission,.....If the Court pleases.

GLEESON CJ: Thank you, Mr Brebner. Yes, Ms Davey.

MS DAVEY: Briefly in reply, I may have misled the Court or not made things plain to the Court. This has not been dealt with, but section 269H really cannot be said to be a beneficial provision for the applicant. Can I take your Honours first to 269I. The consequences are not just a finding of not guilty. The consequences are he might be on conditional release, but he may well be incarcerated and for a period equivalent to the head sentence that would have been imposed. It is not an entirely benign therapeutic group of provisions.

GLEESON CJ: Ms Davey, could I ask you to go to page 53 of the application book, in the second reading speech.

MS DAVEY: Yes.

GLEESON CJ: Do you see the statement that says “The rules about” at line 12?

MS DAVEY: Yes.

GLEESON CJ: That means the common law rules, does it not?

MS DAVEY: Yes.

GLEESON CJ: If your argument is right, then that statement is wrong, is it not?

MS DAVEY: Well, it might be wrong. I note the words “have not caused great difficulty”.

GLEESON CJ: No, I am looking at the words “are preserved”. It says the common law rules - - -

MS DAVEY: “[A]re preserved in this Bill”.

GLEESON CJ: Yes. If your argument is right, the common law rules in relation to deaf mute people are not preserved in this Bill.

MS DAVEY: No, they are not, and if you read the speech in its entirety, Chief Justice – if you turn to page 54, after the general comment, if I can describe it thus, I think it was the learned Attorney-General was saying:

In general terms, the Bill is intended to achieve the following reforms –

and it refers to a definition of “mental illness” and so forth. Now, that is the point I was making. If it was intended to just put aside and clarify the position with respect to, for example, deaf and mute persons, which had long been dealt with in the common law in what might be said to be an inappropriate fashion, it is extraordinary that it has not been dealt with at all. I say, as indeed Justice Besanko acknowledged, that on one view of the second reading speech you could find support for his interpretation, but in essence it has been suggested to this Court that we should interpret the second reading speech with a view to interpreting the provision because the second reading speech itself.....If the Court pleases.

GLEESON CJ: Thank you, Ms Davey.

The issue is whether the applicant’s case should be dealt with under the investigative and other procedures of the South Australian law relating to fitness to stand trial. The primary judge and the majority in the Full Court of the Supreme Court of South Australia, following earlier South Australian authority and consistently with what the South Australian Parliament was told when the current legislation was introduced, held that there may be cases, of which the present is an example, where impairment of mental processes and hence a question of fitness to stand trial can result from purely physical causes.

The conclusion of the majority appears to us to reflect the legislative intention and there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is dismissed.

We will adjourn for a minute to sever our connection with South Australia.

AT 11.08 AM THE MATTER WAS CONCLUDED