R v Madrill

• Jurisdiction: Northern Territory
• Judge: Barr J
• Judgment Date: 19 April 2013
• Neutral Citation: [2013] NTSC 23
• Date: 19 April 2013
• Court: Supreme Court
• Docket Number: FILE NO: (21237889)

[2013] NTSC 23

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Barr J

FILE NO: (21237889)

Between:

The Queen

Plaintiff

and

Phillip Madrill

Defendant

R v MacDonald (2000) 110 A Crim R 238 at 43

Criminal Code (NT)

Criminal Code (NT) s 33, s 43F, s 43H, s 55(2), s 348

Interpretation Act (NT) s 55(2)

INTERPRETATION — ‘court’ — ‘trial’ — section 43H

CRIMINAL LAW — Defence of mental impairment — agreement between parties — meaning of ‘court’ for the purpose of s 43H — whether plea of not guilty because of mental impairment may be entered before judge alone — judge alone constitutes ‘court’ — judge alone can accept a plea of not guilty because of mental impairment and make a finding of mental impairment

REASONS FOR JUDGMENT

Ruling in relation to s 43H Criminal Code

1 The accused is charged with an offence against s 181 of theCriminal Code, unlawfully causing serious harm (‘the offence’).

2 The Crown agrees that the defence of mental impairment is established by reference to the report of psychiatrist, Dr Lester Walton, dated 6 December 2012, supplemented by a further opinion provided by Dr Walton to Mr Robson, Senior Crown Prosecutor, by email dated 17 April 2013. Dr Walton has summarised the position as follows:

‘My opinion is that it is highly likely that because of Mr Madrill's psychotic illness at the material time he could not control his actionsand it is also probable that he could not appreciate the wrongfulness of his conduct.’1

3 The opinion of Dr Walton establishes the grounds of defence of mental impairment set out in sub-paragraphs (c) and (b) respectively of s 43C(1)Criminal Code.

4 There is no issue that the accused is unfit to stand trial within the meaning of s 43J(1)Criminal Code.

5 The parties to the prosecution of the offence agree that the accused is not guilty of the offence because of mental impairment.

6 The issue I have to determine relates to the interpretation of s 43H of theCriminal Code, contained within Part IIA of the Code, headed ‘Mental impairment and unfitness to be tried’, and more specifically contained within Division 2 of Part IIA, headed ‘Mental impairment’.

7 The section heading to s 43H reads:

‘Plea of not guilty by reason of mental impairment may be accepted’

8 The section heading is not part of the Act. Section 43H was inserted into theCriminal Code by Act 11/2002, s 4, and as far as I can ascertain, the heading to s 43H was not amended or inserted after 1 July 2006. Therefore, under s 55(2) Interpretation Act, the heading is not part of the Act.

9 I turn then to the substance of s 43H. The section reads as follows:

‘If the parties to a prosecution of an offence agree, the court may, at any time during the trial of the offence, accept a plea and record a finding of not guilty of the offence because of mental impairment.’

10 The expression ‘at any time during the trial’ requires the beginning and the end of the trial to be identified. For present purposes, it is not necessary to determine exactly when a trial ends. However, it is necessary to determine exactly when a trial begins. The trial is deemed by s 336(2) to begin when the accused is called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge.2

11 The learned Crown prosecutor submits that a trial begins only once an accused is arraigned and enters a plea of ‘not guilty’. That submission relies onR v MacDonald (2000) 110 A Crim R 238 at 243, where Bell J. held that, in New South Wales, the trial did not commence as soon as an accused was called upon to plead but only after the entry of a plea of not guilty. However, there her Honour was dealing with the position at common law, and, as she noted, ‘the time of commencement of a trial will vary according to the language of any relevant statute governing trial proceedings.’3 In the Northern Territory, s 336(2) Criminal Code has modified the common law.

12 Because the trial begins when the accused is called upon to plead, it is not necessary, for the trial to begin, that the accused actually plead to the charge in the indictment. Moreover, because the trial begins (or is deemed by law to begin) at a time before the accused actually pleads to the indictment, the trial...