Beattie v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0162

SAMUEL BEATTIE	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2024
DATE OF JUDGMENT:	26 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 218
JUDGMENT APPEALED FROM:	DPP v Beattie (Ruling No 1) (Unreported, County Court of Victoria, Judge Palmer, 27 August 2024)

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CRIMINAL LAW – Appeal – Where judge found applicant unfit to stand trial following investigation under Part 2 Div 2 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether judge erred – No error in judge’s decision – Application for leave to appeal dismissed.

CRIMINAL LAW – Appeal – Where judge made order under s 16(2)(e) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and s 197(3) of the Criminal Procedure Act 2009 that Victoria Legal Aid provide legal representation to applicant – Where judge certified order under s 295(3) of the Criminal Procedure Act – Whether order amenable to interlocutory appeal under s 295 of Criminal Procedure Act – Order not amenable to appeal – Application for leave to appeal dismissed.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 6, 7, 14D, 14E, 14I, 16(2)(e); Criminal Procedure Act 2009, ss 3, 197(3), 197(7), 295.

Cook v The Queen [2019] VSCA 87, followed.

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Counsel
Applicant:		In person
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	Not applicable
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA:

The applicant, Samuel Beattie, is charged with one count of burglary and two counts of rape. However, prior to the commencement of his trial, Mr Beattie’s then counsel[1] raised concerns about their ability to obtain meaningful instructions from him. The defence obtained a report from a consultant psychiatrist, Dr Adam Deacon, who expressed the opinion that Mr Beattie is not fit to stand trial. The respondent obtained a further psychiatric report from Dr Jeanne O’Bryan, who expressed the same opinion.
[1]Mr Beattie dismissed his counsel on 9 July 2024 and has since continued without legal representation.
On 16 and 17 July 2024 the primary judge conducted an investigation into whether Mr Beattie is fit to stand trial, pursuant to s 14D of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the ‘CMI Act’).[2] In the investigation the prosecution assumed the onus of rebutting the presumption of fitness under s 7 of the CMI Act.
[2]On 26 March 2024, under s 9(1) of the CMI Act, her Honour Judge Marich reserved the question of the applicant’s fitness to stand trial for investigation.
On 27 August 2024, following that investigation, the judge found that:
(a)Mr Beattie is not fit to stand trial; and
(b)Mr Beattie is not likely to become fit to stand trial within the next 12 months.[3]
[3]DPP v Beattie (Ruling No 1) (Unreported, County Court of Victoria, Judge Palmer, 27 August 2024) (‘Reasons’).
The judge then made orders for the conduct of the special hearing and made an order that Victoria Legal Aid (‘VLA’) provide legal representation to Mr Beattie, pursuant to s 16(2)(e) of the CMI Act and s 197(3) of the Criminal Procedure Act 2009.
Mr Beattie does not accept that he is not fit to stand trial. He now seeks leave to appeal the judge’s decision that he is not fit to stand trial, pursuant to s 14I of the CMI Act. He also seeks leave to appeal the order that VLA provide him with legal representation. The judge certified that that decision was of sufficient importance to justify it being determined on an interlocutory appeal, although his Honour expressed some doubt as to whether an order under s 197(3) constitutes an interlocutory decision for the purposes of s 295 of the Criminal Procedure Act.
For the reasons that follow, we will refuse leave to appeal in relation to both decisions.

Background facts

The offences with which Mr Beattie is charged were allegedly committed in July 1996, but no charges were laid at that time. The complainant, PS, died in 2006. In 2020 a DNA sample taken at the time of the offending was matched with a DNA sample taken from Mr Beattie, for an unrelated reason. Mr Beattie was then charged with the offences. The prosecution case that PS was raped depends entirely on a statement she provided to the police on the day of the alleged rape. The prosecution case that Mr Beattie was the man who raped her depends entirely on the DNA evidence.
Mr Beattie participated in an interview with the police on 26 October 2020. In his record of interview he denied all knowledge of the offences, denied ever having met PS or having been to her home, and offered no explanation for the DNA evidence.
Mr Beattie was remanded in custody. It appears that by February 2021 Mr Beattie had started to express delusional beliefs. He was transferred from Hopkins Correctional Centre to Thomas Embling Hospital on 23 February 2021, and discharged on 18 March 2021. On the same day he was admitted to Bendigo Hospital psychiatric unit where he remained on an inpatient treatment order until 29 April 2021. At some point he was granted bail.
Mr Beattie was then treated in the community by Bendigo Adult Community Mental Health team from 29 April to 16 August 2021, and by Kyneton Adult Community Mental Health Service from 16 November 2021 to 30 June 2022. His community treatment order appears to have been revoked on 4 January 2022, at which point he ceased taking all medication. There is no record of Mr Beattie having received any further mental health treatment since that time.
On 18 December 2023, at a directions hearing, counsel for Mr Beattie raised concerns about their ability to get meaningful instructions from Mr Beattie, and whether he was fit to stand trial. As noted above, reports were obtained from Dr O’Bryan and Dr Deacon, each of whom expressed the opinion that Mr Beattie is not fit to stand trial.
On 16 and 17 July 2024, the judge conducted a fitness investigation under pt 2 div 2 of the CMI Act. At the hearing:
(a)The Crown took the position that Mr Beattie is not fit to stand trial.
(b)Mr Beattie, having dismissed his lawyers, represented himself and sought to establish that he is fit to stand trial.
(c)Dr O’Bryan and Dr Deacon each gave oral evidence, in addition to their written reports.

Relevant legislative provisions

The CMI Act

The question of whether a person is fit to stand trial is dealt with in pt 2 of the CMI Act.
Section 6 sets out when a person is unfit to stand trial, as follows:
(1)A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be—
(a)unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d)unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)unable to give instructions to his or her legal practitioner.
(2)A person is not unfit to stand trial only because he or she is suffering from memory loss.
Section 7 deals with presumptions, the standard of proof and the onus of proof, as follows:
(1) A person is presumed to be fit to stand trial.
(2) The presumption is rebutted only if it is established, on an investigation under this Part, that the person is unfit to stand trial.
(3) The question of a person's fitness to stand trial—
(a)is a question of fact; and
(b)is to be determined on the balance of probabilities by a jury empanelled for that purpose.
(4) If the question of a person's fitness to stand trial is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption of fitness.
(5) If the question is raised by the trial judge, the prosecution has carriage of the matter, but no party bears any onus of proof in relation to it.
Division 2 of pt 2 provides for a determination of whether a person is fit to stand trial by a judge alone, rather than by a judge and jury. Section 7(3)(b) does not apply during the period during which div 2 applies (see s 5C). Rather, s 14C provides that the question of a person’s fitness to stand trial is to be determined on the balance of probabilities by the court.
Section 14D provides for the procedure the court is to follow at an investigation into the fitness of an accused to stand trial. Section 14D(4) provides that if the court determines that the accused is not fit to stand trial, the court must then determine whether the accused is likely to become fit to stand trial within the next 12 months and, if so, to specify the period by the end of which the accused is likely to be fit to stand trial.
Section 14E provides that at an investigation, the court may find that the accused is fit to stand trial or that the accused is not fit to stand trial. If the court finds that the accused is not fit to stand trial, and is not likely to become fit to stand trial within the next 12 months, the court must then hold a special hearing under pt 3 of the CMI Act.
Under s 14I, an accused person who has been found unfit to stand trial may appeal to this Court, with leave. That section relevantly provides as follows:
(1)On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a)the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b)the trial judge made a material error of law; or
(c)for any other reason the court considers that the finding should not stand.
(2)In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(3)If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—
(a)refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or
(b)remit the matter for a rehearing of the investigation under this Division as to whether the accused is fit to stand trial.
(4)Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.
(5)If the Court of Appeal remits a matter under subsection (6)(b)—
(a)it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and
(b)the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.

The Criminal Procedure Act

Section 197(3) of the Criminal Procedure Act provides as follows:
(3) If a court is satisfied at any time that—
(a)it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b)the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial—
the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.
Section 197(7) provides as follows:
(7)Despite anything to the contrary in this or any other Act, Victoria Legal Aid may appeal to the Court of Appeal, if the Court of Appeal gives leave to do so, from an order under subsection (3) made by the Trial Division of the Supreme Court constituted by a Judge.
Section 295 of the Criminal Procedure Act permits a person to appeal against an interlocutory decision if this Court gives leave, but only if the judge certifies that the decision is one that (relevantly) is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[4] ‘Interlocutory decision’ is defined in s 3 of the Criminal Procedure Act as follows:
“interlocutory decision” means a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding; … .
[4]Criminal Procedure Act, s 295(3)(b).

The primary judge’s decision

The judge commenced by setting out the prosecution case. He observed that the prosecution case that PS was raped depends entirely on a statement she provided to the police on the day of the alleged rape, and the prosecution case that Mr Beattie was the man who raped PS depends entirely on the DNA evidence. The judge also summarised Mr Beattie’s mental health record.
The judge then summarised the evidence before him as follows, commencing with Dr O’Bryan:
Dr O’Bryan examined the relevant medical records and reports, and interviewed Mr Beattie on 15 May 2022. She diagnosed him as suffering from schizophrenia. She also reviewed previous diagnoses, and reported that:
While there was no clear consensus on diagnosis, all assessments concluded that Mr Beattie was presenting with psychosis and some affective features; either due to schizophrenia, schizoaffective disorder, bipolar disorder or substance-induced psychosis.
Dr O’Bryan opines that Mr Beattie meets the following criteria for fitness under s 6(1) of the [CMI Act]:
a.       He is able to understand the nature of the charges.
b.       He understands the role of jurors and his right to challenge them.
c.       He is able to understand the nature of the trial.
However, Dr O’Bryan opined that, due to his psychotic beliefs, Mr Beattie does not meet several other criteria for fitness, and is therefore unfit to stand trial:
a. He is unable to enter a meaningful plea. While he understands the nature of a plea, his ability to enter a reasonable plea is influenced by his psychosis.
b. It is unlikely that he will be able to follow the course of the trial in its entirety due to the intrusive nature of his psychotic beliefs and thought disorder. This will likely impact his ability to address questions, instruct his counsel and follow proceedings without direct influence from his delusional beliefs.
c. He is unable to understand the weight of evidence or the substantial effect it may have in this case, given he viewed it through a psychotic lens.
d. Due to the direct influence of his psychotic beliefs, he is unable to give instructions to his legal practitioner.[5]
[5]Reasons, [11]–[13] (citations omitted).
The judge then summarised Dr Deacon’s evidence:
Dr Deacon reviewed Mr Beattie’s medical history and interviewed him. Dr Deacon stated that:
Mr Beattie presented with signs of active psychosis in this assessment. He appears to have remained chronically delusional over the last few years. Differential diagnoses include schizophrenia, schizoaffective disorder or delusional disorder. Given his past history of persecutory delusions, disordered speech and thoughts and mood symptoms, schizophrenia or schizoaffective disorder are the most likely diagnosis. In this assessment he didn’t present with marked features of disorganised speech or thinking, albeit his thoughts became notably woolly when he shared his delusional ideation.
Dr Deacon concurs with Dr O’Bryan that Mr Beattie is unfit to stand trial, and for similar reasons:
a. He understands the nature of the charges, albeit he implied that the charges are false and linked to his delusional beliefs relating to the Federal Police.
b. He is capable of entering a plea, but his decision to plead not guilty is influenced by his underlying delusional beliefs. He understands the role of a jury and his right to challenge a juror.
c. He understands the process of court proceedings and a trial.
d.He is likely to have the capacity to follow the course of a trial, but his delusional ideation is likely to impact on the nature of his engagement with the court and his counsel.
e. He is able to understand the evidence presented in support of the prosecution, including the DNA evidence, but he has formed an opinion in regards to the DNA that appears to be delusionally based.
f. He is unable to safely instruct his legal counsel. He has been suspicious and mistrusting of his legal counsel in the past. His mistrust is influenced by his underlying delusional beliefs and associated misinterpretation of information and communication. His instructions to his lawyer are likely to be unduly impacted by his delusional ideation.
Mr Beattie challenged these opinions, largely on the basis that his beliefs were not delusional but true. Mr Beattie also criticised the psychiatric witnesses for not having taken steps to independently verify whether or not the things he told them were true.
Mr Beattie’s beliefs about his life are summarised in the two psychiatric reports, were expressed by him during the course of the fitness investigation, and are set out in more detail in the emails he sent to the court between 4 July 2024 and the commencement of the investigation.[6]
[6]Reasons, [14]–[16] (citations omitted) (emphasis in original).
The judge then said as follows
I have no doubt that Mr Beattie deeply and sincerely believes that what he told the psychiatrists and the court is true. However, many of those beliefs have such a level of inherent implausibility as to obviate the need for any further investigation. They also lack the kind of corroborating evidence that one would expect would have been able to be produced, if it existed. I therefore accept the opinion of the psychiatrists that Mr Beattie’s beliefs are delusional.
I also accept the views expressed by the psychiatrists that Mr Beattie’s mental processes are disordered. This was evident from his presentation in court, and from the emails he sent to the court.
I therefore find Mr Beattie’s mental processes are disordered and impaired; and I find that because of this Mr Beattie is, or at some point during the trial will be:
a.       Unable to enter a plea;
b.       Unable to follow the course of the trial;
c. Unable to understand the substantial effect of evidence that may be given in support of the prosecution case; and
d.       Unable to give instructions to his legal practitioner.[7]
[7]Reasons, [18]–[20] (citations omitted).
As a consequence, the judge found that Mr Beattie is unfit to stand trial.
The judge then turned to consider whether Mr Beattie is likely to become fit to stand trial within the next 12 months. He summarised Dr O’Bryan’s evidence on this question as follows:
a.Mr Beattie has been untreated for more than two years and likely psychotic since at least November 2022. He is unlikely to become fit if he remains untreated.
b.His psychiatric history indicates at least a partial response to anti‑psychotic treatment. With treatment he therefore could – and probably would – become fit within 12 months.
c.However, there are significant barriers to treatment including his poor insight into his illness, and his refusal to take psychotropic medication voluntarily or to engage with mental health management.
d.If he declines to undergo treatment voluntarily, the variables for treatment orders under the Mental Health and Wellbeing Act 2022 are so wide that it is impossible to say whether he would be assessed and what the outcome of such an assessment would be.
e. It cannot, therefore, be said that he is likely to be fit within 12 months.[8]
[8]Reasons, [22].

The judge summarised Dr Deacon’s evidence on this question as follows:
a. Mr Beattie has been untreated for over two years.
b.He has previously responded positively to treatment. There is a strong possibility that he would become fit with treatment.
c. He is very unlikely to accept treatment voluntarily.
d.It is doubtful that he meets criteria under the Mental Health and Wellbeing Act 2022 for involuntary treatment.
e.He will not become fit without treatment.
f.He is therefore unlikely to be fit within the next 12 months.[9]
[9]Reasons, [23].
The judge observed that at many points during the fitness investigation Mr Beattie expressed antipathy to treatment with anti-psychotic medication. Mr Beattie said that these impaired his mental processes, and that he has spent the last couple of years recovering from them. The judge considered that this supported the views expressed by the psychiatrists that Mr Beattie is unlikely to accept treatment voluntarily.[10]
[10]Reasons, [24].
The judge concluded as follows:
On the basis of this evidence, I find that Mr Beattie is not likely to be fit to stand trial within the next 12 months:
a. Mr Beattie is currently psychotic, and likely to have been in this state since November 2022. Without treatment, his mental state is unlikely to improve.
b.Mr Beattie has in the past responded to anti-psychotic medication. It is therefore possible that his mental state would improve with such treatment, and he could become fit to stand trial within 12 months.
c.However, Mr Beattie is unlikely to take such medication voluntarily; he is also unlikely to meet the criteria for involuntary treatment. He is therefore unlikely to be treated within the next 12 months.
d.As he is unlikely to receive treatment within the next 12 months, his mental state is unlikely to improve, and he is not likely to be fit to stand trial within 12 months.[11]
[11]Reasons, [25] (citations omitted).
Following the conclusion of the investigation, the judge conducted a further directions hearing at which he made the order under s 197(3) that VLA provide legal representation to Mr Beattie. The judge also extended Mr Beattie’s bail. On 5 September 2024 the judge certified that order pursuant to s 295(3) of the Criminal Procedure Act.

Mr Beattie’s fitness to stand trial

It is convenient first to consider whether the judge erred in determining that Mr Beattie is unfit to stand trial. In order to succeed in a challenge to this decision, Mr Beattie is required to satisfy this Court that:
(a)the judge’s finding that he is unfit to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b)the judge made a material error of law; or
(c)there is some other reason that the finding should not stand.[12]

Mr Beattie’s proposed grounds of appeal and submissions

[12]CMI Act, s 14I(4).

Mr Beattie filed a notice of application for leave to appeal on 6 September 2024. The document is meandering and repetitive and is difficult to follow. It does not clearly set out any proposed grounds of appeal. However, we can discern from it the following complaints about the judge’s decision:
(a)The judge did not have regard to the ‘Mental Health CCO’ that had been made in relation to Mr Beattie and which contained the most current and relevant information concerning Mr Beattie’s mental health.
(b)The judge failed to make inquiries of Mr Beattie during the fitness investigation and, more generally, did not carry out a proper investigation.
(c)The judge relied upon inaccurate psychiatric reports, and the psychiatrists themselves did not make independent inquiries about Mr Beattie’s life and were biased.
(d)The judge failed to act on Mr Beattie’s request to subpoena ‘Sanders Payne’, who Mr Beattie alleges is an Australian Federal Police (‘AFP’) officer who could provide relevant evidence.
(e)The judge said that he was ‘willing to be wrong’ in the course of the hearing to certify the interlocutory decision, which indicated that he might have changed his decision if he had been able to.
(f)VLA misconduct had contributed to the decision about Mr Beattie’s fitness to be tried, including by refusing to make the informant aware of a search for the birth certificate (apparently a reference to the birth certificate Mr Beattie asserts exists in relation to a child he claims he and PS had together as part of his work for the AFP).
(g)The judge was wrong to conclude that Mr Beattie did not assist the AFP and wrong to conclude that Mr Beattie was delusional in this regard.
Mr Beattie elaborated on these matters in his oral submissions.

The respondent’s submissions

The respondent submitted as follows:
As best as can be discerned, the applicant’s principal challenge to the unfitness finding appears to concern the trial judge determining — supposedly wrongly — that the applicant’s beliefs are delusional. This error is said to arise because the judge did not take into account his ‘mental health based community corrections order’, other material which is said to be relevant, namely evidence from ‘Sanders Payne’ and a ‘birth certificate’, or the asserted fact that he is not guilty of the rape charges.
The respondent submitted that there was sufficient evidence before the trial judge for his Honour to be satisfied, on the balance of probabilities, that Mr Beattie was not fit to stand trial and that none of his contentions justify the unfitness finding being set aside.
The respondent submitted that the judge did not ignore Mr Beattie’s submission that his beliefs were true and not delusional, or his submission that the psychiatrists had not taken steps to verify his beliefs about his life. But, the respondent submitted, the judge was not obliged to accept those submissions.

Consideration

In our opinion, none of Mr Beattie’s complaints about the judge’s ruling can be made good.
In so far as Mr Beattie’s ‘Mental Health CCO’ is concerned, it is not entirely clear to what he was referring. The materials reveal that several community correction orders (‘CCOs’) have been made in relation to Mr Beattie over the years, including with a condition that Mr Beattie receive mental health assessment and treatment. Thus we think it was one or more of those orders to which Mr Beattie intended to refer.[13]
[13]Mr Beattie was also subject to an inpatient treatment order (‘ITO’) under the Mental Health Act 2014, which appears to have been made in March 2021, and to a community treatment order (‘CTO’) made in 2021 and revoked on 4 January 2022. The judge referred to the ITO and the CTO in his ruling; thus, given that Mr Beattie’s complaint was that the judge had failed to refer to the ‘Mental Health CCO’, we have assumed that he was not intending to capture those orders. In addition, Mr Beattie was assessed as being unsuitable for a community correction order by the Community Correctional Services on 21 August 2023 (the ‘CCO assessment’, prepared by Ms Angela Goudge). This report was not before the judge and is not, itself, a CCO or similar order; however we have had regard to it.
However, the CCOs made in relation to Mr Beattie were not ‘the most current and relevant information’ concerning his mental health. Rather, the most current and relevant information before the judge was the information contained in the reports provided by Dr O’Bryan and Dr Deacon.
(a)First, Dr O’Bryan’s and Dr Deacon’s reports post-dated the CCOs, and Dr Deacon and Dr O’Bryan gave evidence at the investigation hearing.[14] Thus their reports and evidence provided the most recent information available.
(b)Secondly, Dr O’Bryan and Dr Deacon both addressed the factors relevant to Mr Beattie’s fitness to stand trial under s 6(1) of the CMI Act. In contrast, any assessments of Mr Beattie undertaken for the purposes of the CCO would not have been not directed to those factors.[15] The CCOs, and any related reports, would therefore be of limited relevance.
(c)Thirdly, Mr Beattie did not rely upon any of the CCOs at the investigation hearing.
[14]For completeness we note that their evidence also post-dated the ITO, the CTO, and the CCO assessment. Thus if Mr Beattie intended to refer to any of those documents, the same conclusion would hold.
[15]For completeness we note that the ITO, the CTO and the CCO assessment were not directed to the factors set out in s 6(1) of the CMI Act. Thus, again, if Mr Beattie intended to refer to any of those documents, the same conclusion would hold.
Thus the judge was not required expressly to refer to any of the CCOs in his ruling.
In so far as Mr Beattie says that the judge failed to make inquiries of him during the fitness investigation, that contention is contradicted by the transcript of the investigation. The transcript reveals that the judge carefully and patiently took Mr Beattie through his case and asked him various questions in the course of doing so. Nor can it be said that the judge did not undertake a proper investigation. Mr Beattie’s submission in this regard might reflect a misunderstanding of the statutory scheme. Although the legislation uses the term ‘investigation’, and although the court is permitted to call evidence on its own motion,[16] there is no requirement that it do so. Nor is there any requirement that the court question the accused person. Having reviewed the transcript of the investigation, we consider that the judge undertook an entirely appropriate process.
[16]CMI Act, s 14D(b)(i).
In so far as Mr Beattie submitted that the psychiatric reports were inaccurate, there is no basis upon which we can accept that submission. Nor were Dr O’Bryan or Dr Deacon required to make independent inquiries about Mr Beattie’s life. As the judge correctly recognised, both Dr Deacon and Dr O’Bryan took some steps to verify the applicant’s account, by reference to the materials with which they were provided. However, as the judge again observed, many of Mr Beattie’s beliefs ‘have such a level of inherent implausibility as to obviate the need for any further investigation’.[17] In particular, the judge referred to Mr Beattie’s claims concerning ‘Sanders Payne’, the person identified by Mr Beattie as being able to confirm the veracity of his versions of events, and Mr Beattie’s claim that there exists a birth certificate for his alleged son with PS. Thus this aspect of Mr Beattie’s application for leave to appeal has no merit.
[17]Reasons, [18].
In so far as Mr Beattie alleged that Dr O’Bryan and Dr Deacon were biased because they assumed that he had raped PS, there was no evidence to support this claim. There is nothing in their reports that suggests any form of bias or any conclusion about whether Mr Beattie did or did not commit the crimes with which he is charged.
Next Mr Beattie submitted that the judge failed to act on Mr Beattie’s request to subpoena ‘Sanders Payne’, who Mr Beattie alleges is an AFP officer who could provide relevant evidence. In fact Mr Beattie did not request the judge to issue a subpoena to ‘Sanders Payne’. Furthermore, as already noted, the judge found Mr Beattie’s account in relation to ‘Sanders Payne’ to be inherently implausible; in those circumstances the judge would not have been required to issue a subpoena, had one been requested.
Mr Beattie also relied upon the fact that, at the hearing in relation to the certification of the VLA decision, the judge said that he was ‘willing to be wrong’. Mr Beattie said that this indicated that the judge might have changed his decision, had he been able to do so. This submission misunderstands the nature of the judge’s remark. Initially the judge was referring to the question whether his decision under s 197(3) to order that VLA provide Mr Beattie with legal representation was an interlocutory decision within the meaning of s 295 of the Criminal Procedure Act. Later, when Mr Beattie asked the judge about this remark, the judge made it clear that he was merely indicating that, like all trial judges, his decision is subject to the supervision of this Court, and that he was willing to accept that supervision and the fact that this Court might reach a different conclusion.
Next Mr Beattie contended that VLA misconduct had contributed to the decision about Mr Beattie’s fitness to be tried, including by refusing to make the informant aware of a search for the birth certificate (apparently a reference to the birth certificate Mr Beattie asserts exists in relation to a child he claims he and PS had together as part of his work for the AFP). As already noted, Mr Beattie’s claims about a birth certificate are inherently implausible and neither this matter, nor any other material, suggests that there was any misconduct on the part of VLA. Rather, what is apparent is that Mr Beattie did not agree with some of the decisions made by the VLA lawyers and counsel that were representing him, and that he was generally unhappy with their conduct of the matter. That led him to dismiss them. But none of these matters reveal any error on the part of the judge.
Finally, and perhaps most relevantly, Mr Beattie contended that the judge was wrong to conclude that Mr Beattie was delusional and thus wrong to conclude that he was not fit to be tried. This aspect of Mr Beattie’s case must be rejected. There was ample evidence for the judge to be satisfied, on the balance of probabilities, that Mr Beattie was not fit to stand trial. In particular, the judge had before him the reports of Dr O’Bryan and Dr Deacon, and he heard them give oral evidence concerning Mr Beattie’s fitness to stand trial. Mr Beattie did not suggest that the judge had inaccurately summarised their evidence — rather, he disagreed with their opinions. It is notable, however, that they both held the same opinion: that Mr Beattie is not fit to stand trial. Mr Beattie’s disagreement with their views did not require the judge to reject their evidence. Furthermore, the judge also had the opportunity to see and hear Mr Beattie present his own case in the course of the investigation, which involved Mr Beattie making a range of inherently implausible claims about his life. Having also seen and heard Mr Beattie present his own case before us, we cannot see how any other conclusion could be reached.
For these reasons, we do not consider that the judge’s finding was unreasonable or could not be supported having regard to the evidence (s 14I(4)(a)). Nor do we consider that the judge made an error of law (s 14I(4)(b)).
Nor do we consider that there is ‘any other reason’ that the finding should not stand (s 14I(4)(c)). As we have explained above, we do not consider that there was any procedural defect in the investigation. Furthermore, we have read the reports provided by Dr O’Bryan and Dr Deacon, the transcript of the hearing before the judge, and the emails Mr Beattie sent the court which were in evidence before the judge. We are satisfied, based on that material, that the judge’s conclusion was correct: Mr Beattie is not presently fit to stand trial. Thus we do not consider that there is ‘any other reason’ why the judge’s finding should not stand. It also follows from this conclusion that, even if we had concluded that the judge had made an error requiring that an appeal be allowed, we would have affirmed the judge’s finding pursuant to s 14I(7) of the CMI Act.
For the above reasons, we will refuse leave to appeal in relation to the judge’s finding that Mr Beattie is unfit to stand trial.[18]
[18]There was no application for leave to appeal the judge’s decision that Mr Beattie was not likely to become fit to stand trial within the next 12 months.

The order that VLA provide Mr Beattie with legal representation

Separately from the fitness investigation, the judge made an order requiring VLA to provide Mr Beattie with legal representation, pursuant to s 197(3) of the Criminal Procedure Act. Mr Beattie seeks leave to appeal that order, pursuant to s 295 of the Criminal Procedure Act.

Mr Beattie’s submissions

Mr Beattie’s notice of application for leave to appeal does not clearly articulate a ground of appeal in relation to this decision, but it appears to be based on his dissatisfaction with VLA’s provision of legal representation to him in the past (which is discussed briefly above).

The respondent’s submissions

The respondent, relying on the decision of this Court in Cook v The Queen,[19] submitted that Mr Beattie’s application for leave to appeal against the representation order is incompetent, because orders under s 197(3) are incidental to a trial, but not made ‘in the proceeding’. As a consequence, the representation order is not an ‘interlocutory decision’ within the meaning of s 3 of the Criminal Procedure Act and thus there can be no appeal of that order under s 295. The respondent also submitted that the right to appeal an order made under s 197(3) is reserved only for VLA; a party is not entitled to appeal such a decision under that provision or s 295(3).
[19][2019] VSCA 87 (‘Cook’).
For completeness the respondent submitted that, even if Mr Beattie had an entitlement to seek leave to appeal, he has not articulated any reason to justify interfering with the trial judge’s order. His complaints ‘focus on his dissatisfaction with and (unfounded) allegations of misconduct about VLA’. He has not demonstrated how the representation order, being an exercise of a discretionary power, was attended by any legal error.

Consideration

In Cook this Court held that a refusal of legal representation under s 197 of the Criminal Procedure Act is not amenable to an interlocutory appeal.[20] The same conclusion must follow in relation to a grant of legal representation under s 197.
[20]Cook [2019] VSCA 87, [57] (Priest and Beach JJA).
The Court reached its conclusion in Cook after a detailed consideration of the history of s 197. In light of that history, it held that the legislative intention was that only orders made by a justice of the trial division of the Supreme Court under that section may be subject to an appeal; orders made by a judge of the County Court are amenable to judicial review only, not to an appeal.[21]
[21]Cook [2019] VSCA 87, [51] (Priest and Beach JJA).
Furthermore, the Court held that although the orders contemplated by s 197 of the Criminal Procedure Act are ‘very closely related to the proposed trial, they are not made in the proceeding; that is, in the trial’. Rather, they are ‘incidental to a trial, and, when made, are intended to ensure that “the accused will receive a fair trial”’.[22]
[22]Cook [2019] VSCA 87, [54] (Priest and Beach JJA) (emphasis in original).
In light of the decision in Cook, which we must follow unless we consider it to be plainly wrong, the judge’s order under s 197(3) that VLA provide legal representation to Mr Beattie is not an interlocutory decision that is amenable to an interlocutory appeal under s 295. We do not consider Cook to be plainly wrong. Thus the application for leave to appeal is incompetent and must be refused.

Conclusion

For these reasons, we will refuse leave to appeal in relation to both the finding that Mr Beattie is unfit to stand trial and the order directed to VLA.
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[2024] VSCA 218

26 September 2024