Regina (C'Wealth) v Baladjam & Ors [No 13] [2008] NSWSC 1437

Regina (C'Wealth) v Baladjam & Ors [No 13] [2008] NSWSC 1437

The fitness issue is not itself a trial on indictment, nor in a relevant sense part of a trial on indictment, because it does not determine guilt or innocence and instead operates as a procedural barrier to the commencement or continuation of a criminal trial. Although historically determined by a specially empanelled jury, that historical fact does not make jury determination of fitness an essential feature entrenched by s 80 of the Constitution. Section 80 therefore does not prevent s 11 of the Mental Health (Criminal Procedure) Act 1990 from applying to require determination by Judge alone in this Commonwealth prosecution.

Jurisdiction
Australia
Judgment Date
01 May 2008
Procedural Posture
Criminal / Determination of Constitutional Issue Whether S 80 of the Constitution Requires Khaled Sharrouf's Fitness to Be Tried to Be Determined by a Judge and Jury
Outcome
The fitness hearing may proceed before a Judge without Jury.
Legal Topics
['fitness to Be Tried' 'trial by Jury' 'section 80 of the Constitution' 'commonwealth Offences' 'mental Health (criminal Procedure) Act 1990 S 11(1)']
['criminal Law' 'mental Health Law' 'constitutional Law' 'criminal Procedure'] ['fitness to Be Tried' 'trial by Jury' 'section 80 of the Constitution' 'commonwealth Offences' 'mental Health (criminal Procedure) Act 1990 S 11(1)']

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Procedural Posture

Criminal / Determination of Constitutional Issue Whether S 80 of the Constitution Requires Khaled Sharrouf's Fitness to Be Tried to Be Determined by a Judge and Jury

Legal Issues

  1. 1 ['Whether s 11(1) of the Mental Health (Criminal Procedure) Act 1990, requiring the question of unfitness to be tried to be determined by the Judge alone, infringes s 80 of the Constitution in a Commonwealth prosecution.' "Whether the determination of an accused person's fitness to plead or fitness to be tried is itself a trial on indictment, or a relevant part of a trial on indictment, for an offence against a law of the Commonwealth." 'Whether determination of fitness by a jury was an essential feature of trial by jury entrenched by s 80 of the Constitution.']

Ratio Decidendi

The fitness issue is not itself a trial on indictment, nor in a relevant sense part of a trial on indictment, because it does not determine guilt or innocence and instead operates as a procedural barrier to the commencement or continuation of a criminal trial. Although historically determined by a specially empanelled jury, that historical fact does not make jury determination of fitness an essential feature entrenched by s 80 of the Constitution. Section 80 therefore does not prevent s 11 of the Mental Health (Criminal Procedure) Act 1990 from applying to require determination by Judge alone in this Commonwealth prosecution.

Court Disposition

The fitness hearing may proceed before a Judge without Jury.

Orders

  • ['I order that the fitness hearing may proceed before a Judge without Jury.']