Issue 80 - Sept 2017
Court of Appeal Judgment Summary Notes

coaintro.jpgThe following summary notes of recent decisions of the Queensland Court of Appeal have been prepared by Bruce Godfrey, Court of Appeal Research Officer. They provide a brief overview of each case. The full text of each decision may be accessed from the Court website which is accessible by clicking the case name.

CIVIL APPEALS

CRIMINAL APPEALS


law.jpgCIVIL APPEALS

Noffke v Oceanside Management Pty Ltd t/as Broadwater Apartments [2017] QCA 156 (17-1388) Sofronoff P and Gotterson JA and Applegarth J 21 July 2017

Application for Leave Queensland Civil and Administrative Tribunal Act – where a tenancy agreement between the applicant and respondent was terminated by order of the Queensland Civil and Administrative Tribunal (QCAT) on the basis of excessive hardship associated with the applicant’s ill-health – where, in a separate application, QCAT ordered compensatory payment to the respondent from the applicant’s rental bond pursuant to s 350(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) (RTRAA) – where an application by the applicant for leave to appeal this order to the QCAT Appeal Tribunal (“the Tribunal”) was dismissed – where the applicant contends that s 350(2) of the Act does not apply to an application made because of excessive hardship by a tenant – where, before the Tribunal which heard Oceanside’s application and in written submissions to the Appeal Tribunal, the applicant contended, correctly, that he was not liable to pay reasonable costs incurred in reletting the premises under clause 7 of the lease – where clearly, a termination by order of QCAT made under s 343 of the Act was not a circumstance that triggered the clause and a break-lease fee was not payable by the applicant under it – where it is relevant to the interpretation of this section that Chapter 5 of the Act contains not only the provisions for termination for excessive hardship on the application of a tenant , but also provisions for termination for excessive hardship on the application of the lessor if the lessor would suffer such hardship were the tenancy agreement not terminated – where given the framework which permits an excessive hardship termination application by a tenant or a lessor, the question to be resolved may be refined to whether or not s 350(2) RTRAA applies both to an application made because of excessive hardship by a tenant and to an application made because of excessive hardship made by a lessor – where there are features of the language in which the section is enacted which indicate that it applies only to a lessor’s application – where firstly, the conditional clause which introduces the section refers to “the termination order made” – where the definite article relates the order to a termination order to which s 350(1) RTRAA applies, that is to say, a termination order made on an application that has been made other than by a tenant – where secondly, the expression “as well as issuing the warrant of possession” in using the definite article, relates the warrant of possession to one issued under s 350(1) RTRAA – where as noted, such a warrant is issued only on the application of a person other than the tenant – where so construed, s 350(2) RTRAA is a provision which authorises orders, including an award of compensation to a tenant, where a termination order is made on a lessor’s application because of excessive hardship, and where, concurrently, a warrant of possession is issued against the tenant under s 350(1) RTRAA – where, in conclusion, the discretion to make orders, including orders by way of compensation, conferred by s 350(2) RTRAA is one that is not applicable to the circumstance where a termination order is made on the application of a tenant because of excessive hardship. Leave granted. Appeal allowed. Set aside the orders of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal. Substitute therefor, the following orders: The appeal to the Appeal Tribunal is allowed; The order of the Tribunal be set aside to the extent of $519.70; In substitution therefor, it be ordered that the said amount of $519.70 be paid to the applicant. Order that the respondent refund to the Residential Tenancies Authority the sum of $519.70 paid to it pursuant to the orders of the Tribunal.

Rose v Tomkins [2017] QCA 157 ; [2017] 30 QLR (16/10920) Morrison and Philippides JJA and Flanagan J 21 July 2017

General Civil Appeal – where the testatrix was in a de facto relationship – where the testatrix and her de facto partner both had their own respective children – where the testatrix and her partner held their residential home as joint tenants – where the testatrix and her partner gave instructions that they both wished their half share in the residence to pass to their respective children after both of them died – where instructions were given to sever the joint tenancy – where the testatrix’s will gave her partner the right to occupy the home until he died or remarried, at which stage the residence would form part of the testatrix’s residuary estate – where, as the primary judge described it, clause 6 “made a clumsy right to reside in the home in favour of Mr Tomkins provided he paid the rates and an insurance policy on the house and kept it in repair, and provided that he did not marry or enter into a de facto relationship” – where the current rectification power in s 33 of the Succession Act 1981 (Qld) is a broader power than existed under the provision it replaced – where the appellant was required to satisfy the Court that the Will did not carry out the testator’s intentions because the terms of the Will did not give effect to her instructions – where the intention must be examined as at the date of the will, not the date of death – where the testatrix’s will gave a half share in her residuary estate to her children and the other half share to her partner’s children – where it was not known whether the testatrix’s partner’s will mirrored hers – whether there was clear and convincing proof that the will did not carry out the testatrix’s intentions because it failed to give effect to her instructions – where it cannot be disputed that, by clauses 6 and 7, Ms Jones’ children did not receive the entirety of her half-share of the house after both she and her partner died (or the earlier expiration of the right to reside), but only a one quarter interest in the remainder of the house with the other quarter interest being gifting to Mr Tomkins’ children – where in the circumstances of the present case, the Will did not carry out Ms Jones’ intentions because it did not give effect to her instructions that her half interest go to her children – where the Will was only capable of achieving the result that her children received a half interest in the event that her partner’s will was (and remained) in the same terms – where the Will as drafted was not capable of guaranteeing that a half interest pass to them – where it is evident that Ms Jones’ instructions were to safeguard her children’s inheritance without qualification – where the appellant’s submission that the will as drawn did not give effect to, nor was it capable of giving effect to, Ms Jones’ instructions is correct, in that Ms Jones’ children did not receive her half-share of the house but only a one quarter interest in the remainder of the house – where in the circumstances of the present case, the Will did not carry out Ms Jones’ intentions because it did not give effect to her instructions that her half interest go to her children – where the Will was only capable of achieving the result that her children received a half interest in the event that her partner’s will was (and remained) in the same terms – where the Will as drafted was not capable of guaranteeing that a half interest pass to them where it is evident that Ms Jones’ instructions were to safeguard her children’s inheritance without qualification – where that is consistent with the advice given to her by her solicitor to sever the joint tenancy – where the appellant argued that upon the appeal succeeding, the appellant succeeded on a question of law – where there is no jurisdiction under the Appeal Costs Fund Act 1973 (Qld) for the Court of Appeal to grant an indemnity certificate to an appellant (only to a respondent) – where as such, the appellant seeks an order similar to those made in matters where a respondent does not appear. Orders: The will of CHERYL MARIE JONES deceased dated 20 May 2015 be rectified as follows: In clause 6(d), deleting the words ‘then it shall form part of my residuary estate’ and inserting the following words in their stead: “Then my interest in the property shall be transferred absolutely to those of my sons PETER JOSEPH JONES and PAUL EDWIN JONES who survive me and if more than one in equal shares as tenants in common”. The respondents pay the appellant’s costs of and incidental to the appeal, but limited to the amount the respondents recover pursuant to the certificate below. The respondents be granted a certificate under s 15 of the Appeal Costs Fund Act 1973.




fingerprint.jpgCRIMINAL APPEALS

R v Hyde [2017] QCA 148 (16/110) Sofronoff P and McMurdo JA and Douglas J 11 July 2017

Appeal against Conviction – where the appellant was convicted of 11 counts of sexual offending against two female complainants who were sisters, including maintaining a sexual relationship with each and specific counts of rape and sodomy – where both complainants gave evidence of frequent sexual offending – where there was some evidence that the appellant was living in Sydney during a period of the alleged frequent offending occurring in Brisbane and would only visit Brisbane occasionally – where each complainant gave evidence of a single specific instance in which both complainants were assaulted simultaneously which was largely consistent with the other but contained some discrepancies – where the appellant submitted that the evidence of each complainant was in some respects inconsistent with her preliminary complaint – where the events were said to have occurred more than 11 years before the initial complaints – where the frequency of the offending alleged by each complainant, was remarkable – where each complainant referred to occasions of the most serious sexual offending, at times when other persons were present in the appellant’s house – where it was certainly necessary for the jury to carefully consider whether all of this could have happened so often, over a period of some years, and with no complaint by either girl to her mother or anyone else – where it was also necessary for the jury to consider, as was argued by defence counsel, whether the complaints had been fabricated because of the complainants’ resentment towards the appellant for having had an affair with their mother – where however, the jury were given a Longman v The Queen (1989) 168 CLR 79 direction as well as a R v Markuleski (2001) 52 NSWLR 82 direction – where the various matters argued for the appellant were substantial arguments to the jury – where they were not arguments which required the jury to acquit the appellant on these counts – where in a case such as this, it is well recognised that the jury has advantages which are not enjoyed by the appellate court and it is not established here that the jury misused them – where in conclusion it was open to the jury to convict on each of these eleven charges and the first ground of appeal must be rejected – where the prosecution’s closing address relied upon the distressed condition of one of the complainants while she was giving evidence as corroborative of her account – where the appellant submitted that the prosecutor had misled the jury, in the absence of a warning by the judge, by inviting them to reason that the complainant’s apparent distress made her account more likely to be true – where the distressed condition of the complainant was not the subject of evidence but was merely an observation of her demeanour while giving evidence – where the prosecution and defence closing addresses were clear about their respective arguments about the complainant’s demeanour – where the distressed condition of the complainant was not the subject of evidence; rather it was the complainant’s apparent condition as she was giving evidence, upon which the prosecutor relied – where there was no evidence which called for a decision by the judge as to whether it was relevant, or a direction as to how, as a piece of evidence, it might be relevant – where there was no miscarriage of justice from the absence of any direction, or further direction, by the judge on this question and the second ground of appeal must be rejected – where the defence case included specific claims of concoction by the complainants – where the trial judge, in summing-up, said that there was “no real suggestion or substantial suggestion” of the complainants concocting their evidence together – where the trial judge’s direction, in context, was referring only to the incident in which both complainants alleged that they had been simultaneously assaulted – where the defence alleged fabrication in cross-examination of each complainant and the case must have been understood as an allegation that they had concocted the story together – where the trial judge’s comments seriously misstated the defence case and had a real potential to undermine it – where in fairness to the judge, this was a direction taken from the then terms of the Benchbook and with the agreement, or without the objection, of counsel – whether a miscarriage of justice occurred – where in Queensland, that doctrine has been abolished by s 132A of the Evidence Act 1977 (Qld), which provides that in a criminal proceeding, similar fact evidence must not be ruled inadmissible on the ground that it may be the result of “collusion or suggestion” and that “the weight of the evidence is a question for the jury…” – where an argument that they had fabricated their stories carried with it the implication that they had concocted their stories together – where, in particular, that is how the defence argument should have been understood in respect of the occasion on which they said that they had been abused by the appellant at the same time – where although there were some differences in their versions of what occurred on that occasion, there were many similarities – where the argument that they had each fabricated their evidence should not have been understood that, quite independently of each other, they had fabricated very similar versions of this occasion – where, yet, that was the effect of what they were told by the judge, in the statement in question, about the defence case – where part of the argument of defence counsel was that C had made up her story about what had happened to her and A, and having done so, C influenced A to make a similar complaint – where in support of that argument, counsel referred to an unusually good memory by C and a poor and vague memory by A – where that was a particular process of concoction which the jury had to consider – where the judge did remind the jury of the defence argument that “these two girls are making it up”, but other than in the passage of which complaint is made, said nothing about concoction between them – where regrettably it is concluded that by this statement by the judge, the jury might have misunderstood the defence argument and that this could have affected the verdicts – where the respondent does not argue that the proviso should be applied in the event that this ground of appeal is established. Appeal allowed. Set aside the verdicts of guilty in the District Court. Order a new trial on those charges. 

R v Elfar; R v Golding; R v Sander [2017] QCA 149 ; [2017] 31 QLR (15/214) Gotterson and Morrison and McMurdo JJA 25 July 2017

Appeals against Conviction – where the Australian Federal Police (AFP) received information from the United States Drug Enforcement Agency (DEA) that a ship was sailing from South America containing narcotics, and had a planned rendezvous with an Australian vessel, the Mayhem of Eden, at an identified location – where AFP surveillance identified two ships about a quarter of a nautical mile apart near the location identified by the DEA – where the Mayhem of Eden was tracked back to a location at the Scarborough Marina – where two men were observed leaving the vessel, each with a large, heavy duffel bag – where one of the men, Golding, subsequently took the bags into a hire car, which was stopped and searched by the AFP – where the AFP officer cut open the duffel bag and it was found to contain blocks of cocaine – whether the AFP officers suspected, on reasonable grounds, that a thing relevant to an indictable offence was in the car – whether the AFP officers suspected, on reasonable grounds, that it was necessary to exercise the powers under s 3T Crimes Act 1914 (Cth) to prevent the drugs from being concealed, lost or destroyed – where the duffel bag was opened in non-compliance with s 3U Crimes Act 1913 (Cth) because it was cut open without giving the persons apparently in charge of the car the opportunity to open it – where the fact that the information had been provided by this source, a leading drug law enforcement agency, was relevant to the weight which is to be given to it – where it was detailed, progressively supplied information as to the timing and precise location of the rendezvous of the vessels – where that information was then supported by two vessels, the Mayhem included, being found at a time and at a location which was consistent with the most recent information from the DEA – where after the vessels had apparently met, the Mayhem immediately sailed back to Australia – where Elfar and Golding were then seen leaving the Mayhem, within an hour of berthing, carrying large heavy bags – where in these circumstances, a reasonable person could at least suspect that the bags within the vehicle contained drugs which had been illegally imported – where there was a reasonable suspicion held by Mr Watt (police officer) that the drugs were in the car – where once that is accepted, there was clearly a risk that the drugs could have been “concealed, lost or destroyed” by the police officers losing track of the car – where there was, at the least, a reasonable ground for a suspicion by Mr Watt that it was necessary to exercise the power to stop and detain the car, and to search the car for the drugs – where the bag which was in the boot was cut open by Ms Barrett without giving an opportunity to the person or persons apparently in charge of the car to open the bag – where those persons were Golding and Triplett, each of whom was then handcuffed and sitting on the side of the road – where as the prosecution agrees, they could have been given an opportunity to open the bag, and therefore, the bag was opened in non-compliance with s 3U – where it did not follow that this non-compliance required the evidence of what was found in the bag to be excluded – where Ann Lyons J concluded that there was a clear non-compliance, but that, having regard to the probative value of the evidence, it should not be excluded in the exercise of what can be described as a Bunning v Cross (1978) 141 CLR 54 – where it is conceded, both in the written and oral submissions of counsel for the appellants, that if the vehicle was lawfully stopped and searched, this non-compliance with s 3U alone could not have justified the exclusion of the evidence – where the Mayhem of Eden was searched, and cocaine seized, pursuant to a warrant – where the appellant contended that the evidence of the search and seizure should have been excluded because of events which preceded it – where members of the AFP Operational Response Group (OR Group) were directed to board the Mayhem of Eden, by forced entry, shortly after the car carrying Golding was stopped and searched – whether the OR Group leader held a reasonable suspicion that there were narcotics on the Mayhem of Eden – where Elfar, who had been arrested at Kippa Ring, informed the AFP just prior to the OR Group’s forced entry that he had a key to the vessel but where that circumstance was unknown to the OR Group – where that was unknown to Detective Superintendent Baker or any of the OR Group before the group went on board – whether Elfar was a person ‘apparently in charge’ of the Mayhem of Eden for the purposes of s 203D(2) Customs Act 1901 (Cth) – where Ann Lyons J held there were circumstances of urgency, which precluded the provision of that opportunity and which required the vessel to be forcibly entered – where her Honour referred to the need to secure the drugs to ensure they were not lost or destroyed, noting that they could have been tipped overboard had another offender been on the vessel – where there was no error in that reasoning – where each of the appellants was examined purportedly under the Australian Crime Commission Act 2002 (Cth) (the ACC Act) after he had been charged – where the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92 held that the ACC Act did not authorise the compulsory examination of a charged person about the subject matter of that charge – where Elfar and Golding submitted that there had been a fundamental alteration of the accusatorial judicial process of a criminal trial by reason of the unauthorised examination – whether the fact of the unauthorised examination resulted in a miscarriage of justice – where Elfar and Golding further submitted that they suffered a specific prejudice because they could not give evidence without running the risk of further prosecution if the evidence diverged from that given during the ACC examination – where neither Elfar nor Golding provided any indication of what exculpatory evidence he might have given at the trial but for the suggested impediment – whether a miscarriage of justice occurred – where Sander further submitted that his right of election to testify in his own defence had not been decided according only to the strength of the evidence presented against him – where Sander adduced evidence of his instructions to his lawyers at trial, which included a statement that he understood that if he gave evidence which was inconsistent with that which he gave before the ACC examination, he could be charged with perjury – where Sander did not provide evidence as to the content of any exculpatory evidence which he could have given at trial – whether a miscarriage of justice occurred – where in an application for a stay of a criminal proceedings, the court must prospectively assess the risk of prejudice to the defendant from the irregularity which has occurred – where the refusal of a permanent stay in the cases which have been discussed is irreconcilable with the first submission for the appellants, because if the inevitable effect of the irregularity would be a “failure of process which departs from the essential requirements of a fair trial”, constituting a miscarriage of justice, a stay would have to be granted – where neither appellant now claims that his evidence to the ACC was untrue, inaccurate or incomplete – where neither offers any indication of what exculpatory evidence he might have given at the trial, but for the suggested impediment from his ACC examination – where prior to the trial, a defendant’s unwillingness to disclose his defence might be justified – where now there has been a trial, which has been duly conducted and the appellant must demonstrate an injustice by revealing the content of the case (if any) which he might have asked the jury to consider – where the absence of that evidence is unexplained: in particular, it is not suggested that the disclosure of a case to this Court, which was not put to the jury, could now expose either appellant to an offence by that case being inconsistent with his evidence to the ACC – where it follows that neither of these appellants has proved that by his evidence given to the ACC, he was unfairly deprived of the chance of an acquittal – where the appellant Sander was arrested and his ship was searched and seized beyond the outer edge of the contiguous zone of Australia – where s 184A and s 185 of the Customs Act 1901 (Cth) provided the authority to board the ship and detain Sander – whether s 51(xxix) of the Constitution requires some nexus or connexion between Australia and the ‘external affairs’ which the law seeks to regulate – whether s 184A and s 185 of the Customs Act 1901 (Cth) nevertheless satisfied any such requirement in s 51(xxix) if it existed – whether s 184A and s 185 of the Customs Act 1901 (Cth) are beyond the legislative power of the Commonwealth under s 51(xxix) of the Constitution – where in a pre-trial application, Sander challenged the validity of these acts on the basis that those provisions of the Customs Act were invalid because they were unsupported by any head of power under s 51 of the Constitution – where that application was dismissed upon the basis that the arguments for the invalidity of these provisions were inconsistent with several decisions of the High Court – where in this Court, counsel for Sander accepts the correctness of that decision according to those decisions, particularly Polyukhovich v The Commonwealth (1991) 172 CLR 501 and XYZ v The Commonwealth (2005) 227 CLR 532 – where it is accepted that according to these authorities, this Court is bound to hold that each of these provisions of the Customs Act was valid as an enactment within the scope of the external affairs power – where provisions were engaged only in circumstances which included the location of the ship being outside the outer edge of the contiguous zone of Australia – where the statutes under consideration in Polyukhovich and XYZ at least regulated the conduct of Australian citizens or residents (although in the former case, not limited to conduct at a time that the person was a citizen or resident) – where however, there was a relevant connection in the case of these provisions, because their operation depended upon a reasonable suspicion of the use of the ship in support of, or in preparation for a contravention of the Customs Act or certain provisions of the Criminal Code (Cth): namely section 72(13), which prohibits the importing or exporting of unmarked plastic explosives and Division 307, which proscribes the importing or exporting of border controlled drugs or plants – where the provisions of the Customs Act therefore had a relevant and sufficient connection with Australia because they facilitated the prevention, detection and investigation of offences under Australian law. Appeals against conviction dismissed 

R v Stamatov [2017] QCA 158 ; [2017] 31 QLR (17/110) Gotterson JA and Atkinson and Applegarth JJ 28 July 2017 

Sentence Application – where the applicant was convicted of trafficking in dangerous drugs, mainly steroids – where he was sentenced to three years’ imprisonment, with a parole release date after six months had been served – where he submitted that a distinction should be made between steroids and other dangerous drugs, such as methamphetamine, in Schedule 1 of the Drugs Misuse Act 1986 (Qld) – where the sentencing judge concluded he was not permitted to make such a distinction – whether it is permissible to distinguish between the harmfulness of steroids and other Schedule 1 drugs, particularly methamphetamine, for the purpose of sentencing for the offence of trafficking – where in the present case, the intent of Parliament, as reflected in the enactment of the 2014 amendments which included numerous steroids in Schedule 1, and as reflected in the explanatory notes to the amending legislation, is that penalties for offences involving those steroids are to be “similar to those applying to other dangerous drugs such as methamphetamine and ecstasy” – where three substantial reasons exist as to why the sentencing judge in this case was entitled to conclude that he should not attempt to determine whether a distinction should be drawn between steroids and other Schedule 1 dangerous drugs, particularly methamphetamine, for the purpose of sentencing for the offence of trafficking – where the first is the need to respect the legislative intent associated with the inclusion of various steroidal substances in Schedule 1, and the stated purpose of the relevant 2014 amendment – where the second is the need to defer to a legislative assessment of relative harmfulness, including an assessment that the evils associated with certain steroids justified their classification with other Schedule 1 drugs so as to attract the same maximum penalty – where the third is the practically impossible task of reaching any informed view about the relative harm of steroids and other Schedule 1 drugs in the absence of a suitable and reliable evidentiary base – where the reasons for determining the first ground of this appeal do not contain a statement of general principle that under the Queensland legislation it is never relevant to consider the harmfulness or relative harmfulness of the drug in question – whether the sentencing judge determined that “exceptional circumstances” had to be shown before a sentence not involving actual imprisonment could be imposed for trafficking in a Schedule 1 drug – whether determining that “exceptional circumstances” had to be shown fettered the sentencing discretion – where in saying “the circumstances are not exceptional” the sentencing judge was capturing in simple language the fact that the circumstances in combination did not justify a sentence which did not include a period of actual custody – where the language is also open to the interpretation that the judge, in reliance upon the submissions of defence counsel that “certainly [R v Ritzau [2017] QCA 17] confirms the principle that wholly suspended sentences are available in exceptional circumstances”, erred in concluding that exceptional circumstances had to be shown – where the considerations are finally balanced – where it is concluded that the sentencing judge was led into error by counsel in this regard – where however, that conclusion does not result in the applicant not being required to serve a period of actual custody – where his good prospects of rehabilitation and the favourable matters said about his character, work ethic and assistance to others, should be reflected in his being required to serve less than one third of the term of imprisonment in actual custody – where an appropriate period of actual custody is six months. Leave to appeal against sentence granted. Appeal dismissed 

R v Sridharan [2017] QCA 160 (17/25) Sofronoff P and McMurdo JA and Douglas J 28 July 2017 

Appeal against Conviction – where the appellant was tried and convicted of extortion of his former employer – where the appellant had written letters to his former employer, alleging a series of breaches of laws and demanding the payment of money – where the appellant asserted that certain documentary exhibits in the trial had not been duly proved – where the respondent submitted that the appeal had to be allowed on a different basis, that there was a miscarriage of justice because the appellant may not have been fit to plead and stand trial – where a psychiatrist reported that the appellant had a disorder which limited his capacity to competently reflect on evidence and other relevant material or indeed upon the basis of the charge – where the appellant was unrepresented – where a court of criminal appeal is obliged to allow an appeal if there is a real and substantial question to be considered about the accused’s fitness – whether a miscarriage of justice occurred – where the appellant had been sentenced to 18 months’ imprisonment with immediate parole, but had breached his parole and spent approximately nine months in custody at the time of hearing the appeal – where in her sentencing remarks, the trial judge said that during the trial she had been concerned about his capacity to think about the evidence, other than that relating to the Attorney-General’s consent, but that her Honour had not been aware that the appellant’s incapacity “had gone as far as this” – where s 613(1) of the Criminal Code provides that when an accused person is called upon to plead to the indictment, and it appears to be uncertain whether the person is capable of understanding the proceedings of the trial, so as to be able to make a proper defence, a jury is to be impanelled to decide whether the person is capable – where that did not occur in the present case, because of what appeared, or more relevantly did not appear, to be the case at that point in time – where the possible unfitness and unfairness of the trial might have been revealed had the appellant been legally represented – where the fact that the process under s 613 was not followed does not matter in the present context – where in Eastman v The Queen (2000) 203 CLR 1, Hayne J said that once a court of criminal appeal is armed with material suggesting that the accused may not have been fit to plead, the court is obliged to consider whether there was a miscarriage of justice regardless of whether the parties to the proceedings at trial raised the question or whether there was any cause for the trial judge to raise it – where the appellant lacked a sufficient capacity to understand the bases of the charge and the effect of the evidence in the proof of the charge, thereby depriving him of a sufficient capacity to assess how, if possible, he should defend the charge – where it is sufficient to say he may not have been fit to plead and stand trial – where consequently, the respondent is correct in saying that the appeal must be allowed upon the ground that there was a miscarriage of justice – where the Court was informed that the appellant had been in custody for approximately nine months by the time of the hearing of the appeal – where in those circumstances, the respondent did not seek an order for a re-trial. Appeal allowed. Conviction set aside.