Berg v Director of Public Prosecutions

[2014] QCA 281

[2014] QCA 281

COURT OF APPEAL

Appeal No 10371 of 2014
SC No 79 of 2013

MUIR JA

VINCENT VICTOR BERG  Applicant

v

DIRECTOR OF PUBLIC PROSECUTIONS                 Respondent

BRISBANE

FRIDAY, 7 NOVEMBER 2014

JUDGMENT

MUIR JA:  Some of the history of the proceedings in the Mental Health Court instituted by the applicant is recorded in reasons of Justice White in the Court of Appeal, delivered on the 26th of October 2011.  In her reasons, Justice White said:

“Mr Berg has been charged with 37 offences, including one count of indecent treatment of a child under 16, pursuant to s 210, (1)(a) of the Criminal Code, which allegedly occurred between September and October 2000.  He is also charged with one count of procuring a sexual act by false pretence, three counts of grievous bodily harm, two counts of assault occasioning bodily harm, one count of obtaining financial advantage by deception and 28 counts relating to offences of fraud, attempted fraud and uttering forged documents.  Those offences are alleged to have occurred between June 1999 and June 2004.

...
The charges of causing bodily harm arose from the period when Mr Berg was employed at the Townsville Hospital as a non-training psychiatry registrar.  He was alleged to have treated patients with a mental illness and changed their medication, causing them to suffer adverse events.  The sexual offences are alleged to have occurred while he was purporting to treat patients at the hospital, including a 15 year old boy.  Mr Berg denies the offences.  A committal hearing was set for 11 July but was adjourned to the end of July.  Mr Berg consulted psychiatrists.  His then solicitor filed a reference in the Mental Health Court in November 2006 in respect of the offence of the indecent treatment of a child under the age of 16 ... the reference was finally heard on 4 May 2011  ... the Mental Health Court heard no evidence that Mr Berg was of unsound mind when the offences were committed and concluded that he was not of unsound mind.  The appellant appealed against the decision some days prior to commencement of committal proceedings.  He sought a stay of the order.  The stay was refused.  The court held that no error had been found in the Mental Health’s Court reason for finding him fit for trial.”

On 30 April 2014, the Mental Health Court held on a self-reference by the applicant that the applicant:

“Has the requisite comprehension necessary in terms of the Presser minimum requirements.”

Presser is a reference to R v Presser [1958] VR 45. The Mental Health Court also remarked:

“I do not accept that there is any evidence that [the applicant] suffers from any mental illness which infers with his comprehension or which would prevent him enduring a trial.”

On 3 November 2014, the applicant filed a notice of appeal, seeking orders that the order of the Mental Health Court be set aside and that it be determined that the applicant is conditionally fit for trial, being unfit only in the absence of professional representation; (b) such an unfitness is of permanent nature; (c) to put all the appellant’s charges on permanent stay as the Court has no power to order a professional representation for the appellant and there is a substantial delay in reaching potential trial(s) from the date of the charges.

Filed at the same time was an application seeking a stay of the enforcement of the whole of the Mental Health Court decision under appeal.

The respondent submitted that the effect of granting the stay would be that the criminal proceedings against the applicant would be stayed until the Court of Appeal had heard the appeal against the ruling of the Mental Health Court.  It was further submitted or asserted that criminal proceedings are presently listed in the Magistrates Court at Southport for 21 November 2013.  In due course, in the absence of a stay, the charges would be listed for a committal hearing and on that committal hearing, the magistrate would determine whether a prima facie case was established and commit or not commit the applicant to stand trial.

An affidavit before me deposes to the 21st of November being a mention date and that a likely date for a committal hearing is approximately April 2015.

I have reservations about whether there can be such a thing as a stay of a determination, if that is the correct description, such as the one under consideration.  The Mental Health Court made no order requiring any execution.  There was merely the determination that I have mentioned.  But that aside, it may be open to the applicant to seek an injunction restraining the appropriate person or persons from proceeding further with the criminal proceedings.  I do not wish to embark on that question as no submissions have been made and, in view of the conclusion I’ve reached, the point is an academic one.

In submissions in reply, it was submitted on behalf of the applicant that if an order for stay is not granted and he is subjected to any criminal proceedings, including committal hearing without professional representation, the Mental Health Act 2000 (Qld) would be violated, as well as his right of appeal not secured and the effectiveness of his appeal compromised. It was later submitted that rejecting the applicant’s application for stay and thus subjecting him to criminal proceedings would mean prejudicial rejection of the central point of the appeal before the very hearing of the appeal.

The applicant then criticised aspects of the primary judge’s reasoning and, in particular, her construction of the words “fit for trial”.

The problem the applicant faces in the prosecution of his appeal is that it is not so much the construction issue or issues identified by the applicant in his submissions, but the factual findings made by the Mental Health Court.  Those findings are consistent with those made in earlier proceedings as to the applicant’s general fitness for trial.  It is plain from the findings that no matter how the construction point is decided, the prospects that the applicant would have of setting aside the findings and of obtaining a rehearing are not high.  The balance of convenience is also against the applicant.  There is a strong public interest in having criminal charges, particularly serious criminal charges, dealt with expeditiously.  The subject charges are already embarrassingly old.  The quality of the evidence in relation to some of the offences, in particular, is likely to continue to deteriorate.

If a stay is not granted, a committal hearing may be held before the appeal is heard.  However the respondent is likely to suffer no significant disadvantage if that transpired.  Having regard to the past history of these matters, the applicant is likely to have difficulty in securing or maintaining legal representation.  Mr Andreas Berg, who represents him this morning has gained considerable forensic experience.  My perusal of the material indicates that he is able to focus clearly on and identify relevant issues.  He also has the ability to mount effective arguments.

I should add that there is no evidence before me that participation in a committal hearing is likely to have any adverse health consequences for the applicant.  If it does appear after the committal that my assessment of the possibility of detriment to the applicant is wrong, then there will be an opportunity for that to be addressed by a Court.  For these reasons, I order that the application be dismissed.  Is there anything further, Mr Power?

MR POWER:  No.  No thank you, your Honour.