CDirector of Public Prosecutions v Galea

[2018] VSC 30

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0257

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v  

PHILLIP MICHAEL GALEA

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2018
DATE OF RULING:	7 February 2018
CASE MAY BE CITED AS:	CDPP v Galea
MEDIUM NEUTRAL CITATION:	[2018] VSC 30

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CRIMINAL LAW – Accused charged with federal offences triable in the Supreme Court – Committal proceedings – Initial psychiatric report questioned fitness to stand trial – Magistrate referred fitness issue to Supreme Court – Unanimous expert evidence before Supreme Court that accused currently fit to stand trial – Whether necessary to refer fitness question to jury in those circumstances – Court’s inherent power to act where circumstances changed so as to render fitness investigation unnecessary – R v Demicoli [2006] VSCA 69 applied – Proceeding remitted back to Magistrates’ Court for committal hearing – Crimes Act 1914 (Cth) s 20B, Judiciary Act 1903 (Cth) ss 68 and 79, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 6, 7, 9 and 11.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr D Holding	Commonwealth Director of Public Prosecutions
For the Accused	Mr T Marsh	Victoria Legal Aid

HER HONOUR:

1. On 6 August 2016, the accused, Phillip Galea, was charged under ss 101.5(1) and 101.6 of the Criminal Code 1995 (Cth) with two terrorist-related offences.

1. Whilst the charges were moving through the committal process in the Magistrates’ Court, Mr Galea’s previous lawyers obtained a psychiatric report, dated 8 October 2017, from Dr Leon Turnbull.  Mr Galea holds very strong political views, many of which have a conspiratorial element to them.  Dr Turnbull observed that “for the psychiatrist, ideology and political positions can be personal and not subjective and often have no clear boundaries between representing the sane and clearly delusional”.  Dr Turnbull expressed the opinion that Mr Galea was “labouring under conspiratorial thinking to a delusional intensity”, and was not fit to stand trial.  The Turnbull report was brought to the attention of the Magistrates’ Court.

1. Section 20B(1) of the Crimes Act 1914 (Cth) (“Crimes Act”) provides that if the question of fitness is raised by one of the parties in committal proceedings involving federal offences, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial. Accordingly, on 20 October 2017, Magistrate Reardon vacated the committal hearing (which had been listed for 13 November 2017), and referred the matter to the Supreme Court for hearing on the issue of Mr Galea’s fitness to stand trial.

1. The Crimes Act does not make provision for the manner in which the issue of fitness to be tried is to be determined in federal cases; however, by virtue of ss 68(1) and 79 of the Judiciary Act 1903 (Cth), Victorian laws relating to procedure apply in this case.[1]  The Victorian procedural law relating to the determination of questions of fitness to stand trial is found in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“CMI Act”).

   [1]Kesavarajah v The Queen (1994) 181 CLR 230 (“Kesavarajah”), [21], [24].

1. Section 6 of the CMI Act provides that a person is unfit to stand trial if they meet any one of six specified criteria, and the reason why they do so is because their mental processes are disordered or impaired.

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 Part 2 of the CMI Act, that the person is unfit to stand trial.[3]  The question of a person’s fitness to stand trial is a question of fact, to be determined on the balance of probabilities by a jury empanelled for that purpose.[4]

   [2]CMI Act s 7(1).

   [3]CMI Act s 7(2).

   [4]CMI Act s 7(3).

1. At a directions hearing on 8 November 2017, on the application of the prosecution, Lasry J ordered that Mr Galea undergo a psychiatric assessment by Forensicare, under s 10(1)(d) of the CMI Act.

1. On 29 November 2017, Lasry J was informed that the Forensicare report was expected to be ready by 5 January 2018.  At that time, it seems that the parties simply assumed that the further report would confirm that Mr Galea was unfit to stand trial, and the matter would need to go to a jury for determination.  His Honour went ahead and fixed the fitness investigation for hearing on 29 January 2018.  That date was subsequently adjourned until today.

1. In fact, in her psychiatric report, dated 30 January 2018, Dr Fiona Best of Forensicare found that Mr Galea did not have a mental illness. After discussing Mr Galea’s very strong, conspiratorial, political views, she specifically disagreed with Dr Turnbull’s diagnosis of delusional disorder. She turned her mind to each of the criteria in s 6, before concluding that Mr Galea was fit to stand trial.

1. By early this year, Mr Galea had engaged new lawyers to act for him. Mr Galea’s new lawyers obtained a psychiatric report from Dr Nina Zimmerman, dated 4 February 2018. After carefully considering Mr Galea’s presentation against the criteria in s 6 of the CMI Act, Dr Zimmerman also concluded that Mr Galea was fit to stand trial.

1. Although Mr Galea and his new lawyers now expressly disavow any reliance on the Turnbull report, that report led to the referral of the fitness question to this court.  However, the unequivocal evidence now before the court from both sides is that Mr Galea is currently fit to stand trial.  In those circumstances, is this court required to empanel a jury to determine the question of fitness?  Or does the court have power to determine that there does not need to be a fitness hearing, and simply remit the matter back to the Magistrates’ Court?  Both parties urged me to adopt the latter course.

1. A judge alone does not have power to determine that a person is fit or unfit to stand trial; at present,[5] that is a matter that can only be determined by a jury.[6]  However, neither side has asked me to make such a determination.  Rather, the parties have effectively asked me vacate the order that there be a fitness investigation, the effect of which would be that the statutory presumption of fitness would apply. 

   [5]Fitness issues will be determined by judge alone if clause 9 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016, which is currently before parliament, is enacted.

   [6]CMI Act s 11. See also SM v The Queen [2011] VSCA 332, [14], per Redlich JA, with whom Mandie JA agreed.

1. In support of their arguments, both parties rely upon the Court of Appeal decision in R v Demicoli.[7] In that case, in December 2003, a County Court judge determined that there was a “real and substantial question” as to the accused’s fitness to stand trial, and ordered that there be a fitness investigation under the CMI Act in early February 2004. His Honour made that determination and order based on a psychiatric report, even though his view at the time was that the report was “pretty weak” and “fairly limited and old”.[8] 

   [7][2006] VSCA 69 (“Demicoli”).

   [8]Demicoli, [5].

1. By late January, a plea offer had been accepted by the prosecution, and a report had been obtained from a different psychiatrist, which found that the accused was fit.  The trial judge acceded to the application by the accused’s counsel to vacate his earlier order that there be a fitness investigation.  Thereafter, the accused pleaded guilty and was sentenced.

1. In 2005, the accused sought leave to appeal against his conviction.  His proposed grounds of appeal alleged that the trial judge had committed various errors in February 2004, in failing to reserve the question of fitness, or in finding that there was not a real and substantial question as to fitness.  In dismissing all of the grounds of appeal, Callaway JA, with whom Chernov and Vincent JJA agreed, said:

I have no doubt that a judge has power to vacate an order that there be an investigation if circumstances change before a jury is empanelled.  Otherwise an investigation under the [CMI Act] would have to be conducted where an order was made by mistake or where circumstances changed in a way that rendered the investigation unnecessary.[9]

[9]Demicoli, [9].

1. Callaway JA observed that the effect of the trial judge’s determination was to say “It no longer appears to me that there is a real and substantial question as to the [accused’s] fitness to stand trial.”[10]

   [10]Demicoli, [11].

1. The accused in Demicoli had only been charged with state offences. The question of fitness had been reserved under s 9 of the CMI Act, which requires a trial court in which an indictment has been filed to reserve the question of fitness if there is “a real and substantial question as to the fitness of the accused to stand trial.” Section 9 itself contains no provision empowering a court to vacate a reservation order, once it has been made. However, the Court of Appeal did not doubt that the court has an inherent power to vacate such an order in certain circumstances.

1. In the present case, s 9 is not relevant, as the charges against Mr Galea are still at the committal stage, so no indictment has been filed. Instead, the fitness issue has come before this court by virtue of s 20B of the Crimes Act, which requires a magistrate to refer the proceedings if “the question” of fitness has been raised by one of the parties. This appears to be a much lower threshold than s 9, which requires that the question as to fitness must be “real and substantial” before it needs to be reserved. However, there is no good reason why this court’s inherent power to determine that there not be a fitness hearing (where circumstances have changed in a way that renders the investigation unnecessary) should be different, depending on whether the fitness question has come to this court under the CMI Act or the Crimes Act.

1. In this case, experts on both sides now agree that Mr Galea does not meet any of the criteria for unfitness under s 6 of the CMI Act. It no longer appears that there is any question as to the fitness of the accused to stand trial, in that no reasonable jury, properly instructed, could find that Mr Galea was not fit to be tried.[11]  In the circumstances, it is appropriate for this court to use its inherent powers to determine that there not be a fitness hearing, where circumstances have changed in a way that renders the investigation unnecessary.

   [11]Kesavarajah, [32].

1. It is not appropriate to vacate the magistrate’s referral order, as the referral to this court has already occurred.  The only order I will make is to remit the proceeding to the Magistrates’ Court, so that the committal hearing (currently listed to commence on 9 April 2018) can proceed.

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