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Case Report

Case Report AUST. & N.Z. JOURNAL OF CRIMINOLOGY (December, 1973): 6, 4 R v Judge Martin; Ex parte Attorney-General Full Court, Supreme Court of Victoria (Smith, A. C. J., Little and Nelson: J.J.) [1973] V.R. 339. IN an earlier number of the Journal, (1972) 5 Aust.N.Z.J.Criminol. 193, the case of R v Andrews was reported. The essential matter concerned whether or not the learned trial judge, when faced with a jury finding of "unfitness to plead", had a discretion under the provision of the Crimes Act, 1958, 8.393, not to make an order of detention in strict custody until the Governor's pleasure shall be known. In Andrews' case the learned trial judge did not make an order for strict custody but rather remanded the accused for trial and respited the recognizances of the accused, his surety and the Crown witnesses. Three months later, on 26 Jul:v 1972, the Attorney-General applied under 0.53 of the Supreme Court Rules for an order nisi for mandamus or certiorari and on that day an order was made Which, as subsequently amended, is a general order nisi under 0.53 calling upon the learned Judge and the accused to show cause before the Full Court why a writ of mandamus should not issue commanding his Honour to make an order under 8.393 or why further or other relief should not be granted. When the matter came before the Full Court, R v JUdge Martin, Ex parte Attorney-General, three judgments were delivered and the Court held (per Little and Nelson, JJ.; Smith, A.C.J., dissention): where a jury have found an accused person unfit to plead the judge has a duty, under s.393 of the Crimes Act 1958, to direct that the ftn,ding of the jury be recorded and to order that the accused person be kept in strict custody until the Governor's pleasure be known. All three judgments review most fully the history of the criminal lunatics legislation so that the three judgments taken together offer the student of this area of interest a most valuable over-view of the SUbject. Another aspect of the case before the Full Court was set out by Little, J. that: It was contended ... on behalf of the accused that if his Honour had no power to release the accused on bail, it was not open to the Supreme Court to correct the error by way of an order for certiorari or mandamus because, so it was argued, the County Court is, in its criminal jurisdic­ tion, a "superior court". If it be correct, as contended, that a prerogative writ does not lie to the County Court, the error made by the learned trial JUdge must remain uncorrected, for the procedure by way of appeal, as provided by the Crimes Act, is not applicable: uuie Crimes Act 1958, s8.567 and 567 A as amended by Act No. 8280, 8.19. l This contention was answered by Little J., with Nelson J. agreeing, that HI am disposed ... not to accept the contention advanced . .. It is not necessary, however, for me to express any final conclusion on the argument for, I think, this Court is bound by the decision of the Full Court in R v Judge Frederica; Ex parte Attorney-General, [1971] V.R. 425, to hold that certiorari does lie to the County Court . . . It would be sufficient for this purpose to say that I am not satisfled that the Full Court was wrong in R v Judge Frederico, supra, in making an order for certiorari in respect of an order made by a County Court judge."-A.A.B. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Australian & New Zealand Journal of Criminology SAGE

Case Report

Australian & New Zealand Journal of Criminology , Volume 6 (4): 1 – Dec 1, 1973

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Publisher
SAGE
Copyright
Copyright © by SAGE Publications
ISSN
0004-8658
eISSN
1837-9273
DOI
10.1177/000486587300600409
Publisher site
See Article on Publisher Site

Abstract

AUST. & N.Z. JOURNAL OF CRIMINOLOGY (December, 1973): 6, 4 R v Judge Martin; Ex parte Attorney-General Full Court, Supreme Court of Victoria (Smith, A. C. J., Little and Nelson: J.J.) [1973] V.R. 339. IN an earlier number of the Journal, (1972) 5 Aust.N.Z.J.Criminol. 193, the case of R v Andrews was reported. The essential matter concerned whether or not the learned trial judge, when faced with a jury finding of "unfitness to plead", had a discretion under the provision of the Crimes Act, 1958, 8.393, not to make an order of detention in strict custody until the Governor's pleasure shall be known. In Andrews' case the learned trial judge did not make an order for strict custody but rather remanded the accused for trial and respited the recognizances of the accused, his surety and the Crown witnesses. Three months later, on 26 Jul:v 1972, the Attorney-General applied under 0.53 of the Supreme Court Rules for an order nisi for mandamus or certiorari and on that day an order was made Which, as subsequently amended, is a general order nisi under 0.53 calling upon the learned Judge and the accused to show cause before the Full Court why a writ of mandamus should not issue commanding his Honour to make an order under 8.393 or why further or other relief should not be granted. When the matter came before the Full Court, R v JUdge Martin, Ex parte Attorney-General, three judgments were delivered and the Court held (per Little and Nelson, JJ.; Smith, A.C.J., dissention): where a jury have found an accused person unfit to plead the judge has a duty, under s.393 of the Crimes Act 1958, to direct that the ftn,ding of the jury be recorded and to order that the accused person be kept in strict custody until the Governor's pleasure be known. All three judgments review most fully the history of the criminal lunatics legislation so that the three judgments taken together offer the student of this area of interest a most valuable over-view of the SUbject. Another aspect of the case before the Full Court was set out by Little, J. that: It was contended ... on behalf of the accused that if his Honour had no power to release the accused on bail, it was not open to the Supreme Court to correct the error by way of an order for certiorari or mandamus because, so it was argued, the County Court is, in its criminal jurisdic­ tion, a "superior court". If it be correct, as contended, that a prerogative writ does not lie to the County Court, the error made by the learned trial JUdge must remain uncorrected, for the procedure by way of appeal, as provided by the Crimes Act, is not applicable: uuie Crimes Act 1958, s8.567 and 567 A as amended by Act No. 8280, 8.19. l This contention was answered by Little J., with Nelson J. agreeing, that HI am disposed ... not to accept the contention advanced . .. It is not necessary, however, for me to express any final conclusion on the argument for, I think, this Court is bound by the decision of the Full Court in R v Judge Frederica; Ex parte Attorney-General, [1971] V.R. 425, to hold that certiorari does lie to the County Court . . . It would be sufficient for this purpose to say that I am not satisfled that the Full Court was wrong in R v Judge Frederico, supra, in making an order for certiorari in respect of an order made by a County Court judge."-A.A.B.

Journal

Australian & New Zealand Journal of CriminologySAGE

Published: Dec 1, 1973

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