Cihan Camurtay v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0195

CIHAN CAMURTAY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 August 2020
DATE OF JUDGMENT:	3 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 221
JUDGMENT APPEALED FROM:	DPP v Camurtay (Unreported, County Court of Victoria, Judge Ryan, 12 July 2018) (Conviction)

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CRIMINAL LAW — Conviction — Rape — Fitness to be tried — Fresh or new evidence — Whether real and substantial question that applicant may have been unfit at time of trial — Whether substantial miscarriage of justice — No question of fitness raised before or during trial — Psychiatric assessment after trial — Delusional disorder — Appeal allowed — Convictions quashed — New trial ordered — Madafferi v The Queen [2017] VSCA 302 considered — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Part 2.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin and Mr R de Vietri	Victoria Legal Aid
For the Respondent	Mr C B Boyce QC with Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Following a nine day trial conducted in the County Court in July 2018 — an earlier trial in April 2018 had aborted[1] — on 12 July 2018 a jury convicted the applicant of rape[2] and sexual assault.[3] On 6 September 2019, the trial judge sentenced him to be imprisoned for six years, with a non-parole period of four years.[4]
[1]See [40]–[45] below.
[2]Crimes Act 1958, s 38. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 40. The maximum penalty is 10 years’ imprisonment.
[4]The judge imposed a sentence of six years’ imprisonment on the charge of rape (charge 1) and one year’s imprisonment for sexual assault (charge 2), the sentence for sexual assault to be served wholly concurrently with the sentence for rape.

The alleged offending took place in the early hours of 10 November 2016, in an apartment in Collins Street, Melbourne, owned and occupied by the complainant ‘JAM’. At that time, the applicant was staying in the apartment overnight with ‘ALW’, a live-in guest of JAM’s. The applicant was arrested at about 7.30 pm that day, after he presented himself at the Melbourne West Police Station.

At the trial which resulted in his conviction, the applicant was unrepresented.

A principal issue in this Court is whether the applicant’s fitness to stand trial should have been investigated pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the CMI Act’).

Initially, the applicant sought leave to appeal against conviction on three grounds. On the hearing of the application, however, the applicant’s counsel accepted that the second ground ‘added nothing’ to the first,[5] and abandoned the third ground.[6] Thus, the sole ground upon which the applicant relied is as follows:

1. As a result of fresh evidence contained in the reports of Dr Pandurangi dated 18 August 2019 and 25 September 2019 the applicant’s convictions should be set aside and a retrial ordered on the basis that the applicant was unfit to plead during his trial.

[5]The second ground was formulated as follows:

2. In the alternative, as a result of the delusional disorder suffered by the applicant, the proceedings were conducted by the applicant in a way which fell so far short of what would constitute a proper trial of the issues that there was a substantial miscarriage of justice.

[6]The abandoned ground was as follows:

3. The learned trial judge erred in failing to warn the applicant pursuant to s 357(5) of the Criminal Procedure Act 2009 and in allowing him to give evidence as he did, with the consequence that the prosecution was permitted to reopen its case and call evidence in rebuttal.

In my view, for the reasons that follow, leave to appeal should be granted, the appeal allowed and a new trial ordered.

The alleged offending

At the time of the alleged offending on 10 November 2016, the applicant was aged 32; ALW was aged 33; and JAM was aged 55. ALW occupied a bedroom in JAM’s apartment. The applicant and ALW had been in a casual sexual relationship for a number of weeks.

Although detailed information about his status was not before the jury, it appears that the applicant — who is of Kurdish extraction — was born and educated to a tertiary level in Turkey. He came to Australia as a student in November 2014 and made an application for refugee status shortly after his arrival, based on his fear of persecution in Turkey as a result of his involvement in political activities.

JAM was a public servant. She had met ALW through work, and had offered ALW a room in her apartment when ALW had moved to Melbourne to take up employment. ALW had introduced the applicant to JAM at her apartment on an earlier occasion.

After finishing work on 9 November 2016, JAM went to a hotel with a work colleague, ‘CS’, and drank wine. She and CS returned to her apartment at about 10.30 pm. ALW was there with a friend, ‘PM’. CS and PM left shortly afterward.

At around 11.00 pm, the applicant telephoned ALW, and at around midnight he came to the apartment. He, ALW and JAM chatted until JAM went to bed at about 1.00 am. An hour or so later, ALW and the applicant went to bed. They then engaged in consensual sexual activity before falling asleep.

JAM awoke to the sensation of someone sucking her ear at about 4.00 am. It was the applicant, although JAM did not immediately realise that this was so. JAM rolled onto her back, and the applicant sucked her left breast (charge 2 – sexual assault). Initially, JAM thought it was her partner, ‘GWE’, who was in bed with her. GWE, a police officer, had been working night-shift. He had a key to the apartment and would stay over a couple of times a week. JAM said, ‘Hey babe, what are you doing? Have you knocked off?’, but then realised that it did not make any sense that it was GWE. She touched the applicant’s chest, which, unlike GWE’s chest, was hairy; and the man in bed with her had a head of hair, whereas GWE had a shaved head. She also noticed that the shape of the man’s arms were different, and realised it was not GWE.

The applicant then inserted his penis into JAM’s vagina. He thrusted three or four times, causing her pain (charge 1 – rape). JAM pushed against the applicant’s chest and said, ‘Who are you?’. The applicant then got up and left the bedroom. Since there was some external light coming into the room from between the blinds, JAM was able to recognise the applicant.

Moments later, JAM went to ALW’s bedroom and called out her name, but ALW did not wake. The applicant was lying in bed next to ALW. When JAM entered the room he sat up and stared at her but did not say anything. JAM backed out of the room, ALW not having woken.

JAM returned to her bedroom and telephoned GWE. She told him that she had been assaulted. He told her to call ‘000’.

The applicant got out of bed and got dressed. He told ALW that he had to leave immediately. ALW accompanied him to his car. When she returned to the apartment minutes later, JAM came out of her room and said, ‘he raped me’. ALW then telephoned the applicant and asked him what he had done. He said, ‘it’s not what you think’. ALW ended the call and called 000.

Police arrived at 4.36 am. CCTV footage from the apartment building showed the applicant entering the apartment building on 9 November 2016 and leaving the next morning.

A forensic examination of JAM was carried out at the Royal Women’s Hospital at 9.00 am. DNA analysis later confirmed that the applicant was a likely contributor in a sample obtained from JAM’s vagina.

Police executed a search warrant at the applicant’s home at around 5.30 pm on 10 November 2016. The applicant was not there, but at approximately 7.30 pm he attended Melbourne West Police Station. He gave a ‘no comment’ interview (a Turkish interpreter being present throughout), and was subsequently charged.

As I will later discuss in more detail, the applicant gave evidence at trial claiming that he was the one who was raped. He claimed that JAM and ALW had put something in his drink and then raped him. The applicant asserted that the ‘two women assaulted [him] for money’ and that ‘police mismanaged the whole case’. He also claimed to be the victim of corrupt police, lawyers and judges.

The events following the applicant’s arrest

In order to appreciate the issues raised in the present application, it is necessary to set out in some detail the manner in which the proceedings against the applicant unfolded following his arrest.

18 May 2017: Committal

At a contested committal, on 18 May 2017, the applicant was represented by counsel (‘the applicant’s first counsel’). Her cross-examination of JAM and ALW was consistent with a ‘defence’ of consent or belief in consent.

22 May 2017: First directions hearing

Following the applicant’s committal for trial, an initial directions hearing occurred before Judge Wilmoth in the County Court less than a week later, on 22 May 2017. The applicant’s first counsel appeared for him and informed the Court unequivocally that ‘[t]he issue in relation to this matter is consent’. Counsel told the judge that she was unavailable to appear on the day fixed for trial, 16 April 2018, and said that issues under s 342 of the Criminal Procedure Act 2009 and s 32C of the Evidence (Miscellaneous Provisions) Act 1958 were under consideration.

8 February 2018: Directions hearing

On 8 February 2018, what was supposed to be a final directions hearing occurred before Judge Quin. New counsel (‘the applicant’s second counsel’) appeared for the applicant. Counsel informed the judge that he wanted to adjourn the directions hearing for a few days. He explained:[7]
[7]Emphasis given to this and following passages.

It’s in order to get some instructions in relation to the defence response.^[[8]] I’ve had a conference with Mr Camurtay. There was some material outstanding that he wanted to look through before completing the conference and defence response. My instructor’s given him that material at the end of last week, early this week. He just needs some more time to finalise that.
[8]Section 182(1) of the Criminal Procedure Act 2009 requires the DPP to serve a summary of the prosecution opening outlining the manner in which the prosecution case is put against the accused. By virtue of s 183(1), the accused must serve and file a response to the summary of prosecution opening at least 14 days before the day on which the trial is listed to commence.
15 February 2018: Mention

A week later, on 15 February 2018, the applicant’s second counsel again appeared at a mention before Judge Quin, seeking a further adjournment of the final directions hearing. In the absence of the applicant, who had not arrived at court, counsel said:

When he gets here, I’ll ultimately ask for an adjournment, and I can set out the reasons for that when he does get here, but effectively he’s from another country and has a great deal of suspicion in relation to police and even the legal system as to how his matter’s proceeding, and he wants to read in great detail every word of his brief before he gives me his instructions, and he tells me that he hasn’t got to that point yet.
…
Can I say that on the face of it, it seems like a very simple defence response, because I would imagine the defence will be belief in consent, that there’s no issue with him being there, and there will be an argument about whether or not the Crown can lead incriminating conduct of him leaving the premises. So that’s what I anticipate it to be.
21 March 2018: Mention

On 21 March 2018, the matter came before Judge Lawson. The applicant was represented by his solicitor. It appears that the mention was called by the prosecution because the defence response — which had been due on 15 February — had not yet been provided. The applicant’s solicitor told the judge that the defence response

was largely completed, and [the applicant’s second counsel] still arranged to have a final conference just to confirm instructions with Mr Camurtay. It was on that date that he received a new set of instructions, if I can put it that way, that would have made filing the defence response not a proper course to take at that point. So what I have endeavoured to do is to re-brief the matter, which I have done …
29 March 2018: Immigration detention

On 29 March 2018, the applicant was taken into immigration detention.

4 April 2018: Mention

Further new counsel (‘the applicant’s third counsel’) appeared in the absence of the applicant at a mention before Judge Sexton on 4 April 2018. He told the judge that, as a result of the applicant being taken into detention, he had been unable to obtain the instructions necessary to complete the defence response. The matter was adjourned for a further directions hearing.

12 April 2018: Mention

On 12 April 2018, the matter returned to court before Judge Pullen. It seems that the court had received a notice that the applicant’s solicitor had ceased to act for him. The applicant was unrepresented, but his third counsel appeared ‘as amicus … to assist the court’ and informed the judge that the applicant ‘wants to do it [the trial] himself’. In the course of the discussion that ensued between the judge and the applicant, the judge advised the applicant in the strongest terms that he should be represented at trial. The applicant was adamant, however, that he wanted to represent himself. Although the discussion proceeded over a number of pages of transcript, several of the applicant’s assertions drawn from it sufficiently impart its flavour:

My case is two women, me and police, between us. And police is [indistinct, at fault?] in my case. I already complain about police.
…
In my case the police is at fault, which I’ve made a complaint. I need this to be resolved first.
…
I respect your court. But all the paperwork that’s been given to me is all worthless.
…
Can’t we complain about police, like are they always in the right?
…
Isn’t all the evidence going to come from the police? If they’re doing the wrong thing then how could you trust that?
…
I just tell my solicitor, but he just speaks to me in English. My experience in Australia is if you don’t have money and police backup, that’s what happens. I came to this country for – I came to this country for justice. You know, in Turkey I’m Kurdish but here I’m a refugee.
…
That’s the point, I’m second-class person in law system.
…
With this system, you know, you just can’t trust the police, because they’re very racist.
13 April 2018: Final directions hearing

The next day, 13 April 2018, a final directions hearing was held. The applicant remained unrepresented. Counsel briefed by Victoria Legal Aid (‘VLA’) appeared, however, for the purposes of cross-examining, JAM and ALW, each a ‘protected witness’.[9] He told the judge that he had not yet obtained instructions from the applicant, but added: ‘I’ve come here today because I have grave concerns for Mr Camurtay’. After further discussion between counsel and the judge, there was the following exchange between the judge and the applicant:
[9]See Criminal Procedure Act 2009, Part 8.2, Division 3 (ss 354 to 358).

HER HONOUR: … Mr Camurtay, just tell me – I need to know what your defence is in this case. Just listen. It is suggested that you raped and touched – sucked the left breast of [JAM]. Did that happen, or are you saying it didn’t happen, or has she consented?
[APPLICANT]: (Through interpreter): It’s fabricated right from the beginning, Your Honour.
HER HONOUR: Made up? Made up?
[APPLICANT]: Fabricated.
HER HONOUR: Well made up, in other words it’s not true. You did not have sex with her at all?
[APPLICANT]: It’s a liar, yes. They didn’t know I was a refugee in this country.
HER HONOUR: Yes, I got all that last time, yes, all right.
[APPLICANT]: And whenever be – the witnesses will – I found out in the last day that whatever the – (direct) not last day, I know the court date, the new information.
HER HONOUR: Right, I think I’ve got enough …

The matter was stood down so that counsel briefed to cross-examine the protected witnesses could obtain instructions to conduct the relevant cross-examination. Of some importance, counsel later that day asked to address the judge in the absence of the applicant. The exchanges between the judge and counsel included the following:

HER HONOUR: Yes, now I gather you wanted to speak to me without Mr Camurtay present, yes?
[COUNSEL]: Yes I did Your Honour.
HER HONOUR: All right, well I’m not going to be the trial judge, so yes?
[COUNSEL]: All right. I am not convinced that he is in a position to focus his attention on what he should be focusing his attention on. I don’t know if he’s putting it on for some reason – he’s doing a pretty damn good job, but the person that I spoke to in that room did not seem particularly stable, and did not – and I had him alone, and it did not seem to me that he was really understanding his predicament, what I was saying to him. He seemed … obsessed, beyond just being silly.
HER HONOUR: Look, there’s no doubt he’s obsessed in the sense that he’s focusing on – it could be the fact that he’s in immigration detention – I mean that could be taking up his time, I understand that. He seems to be hell-bent on suggesting that there’s a police conspiracy. I use that term in the loosest sense, I mean that they’re out to get him and people are lying, and that’s how everyone operates in Australia because that’s what they do in Turkey, and there’s all this sort of hoo-hah going on. I’ve got no doubt that he’s obsessed, but he’s going to be obsessed in 20 years’ time probably, that’s not going to change.
[COUNSEL]: The reason why I wanted to speak to you in his absence is – it might be an idea to have him assessed, I don’t know.
HER HONOUR: I don’t think that that’s the – he’s been able to give instructions, he just changes his instructions. There’s no suggestion of mental health issues here. He’s focused, but he’s not focused on this trial, and he’ll probably never focus on this trial, because he doesn’t want to be in detention and doesn’t want to be sent back to wherever he came from, probably, that’s my guess, I mean, who knows. It doesn’t really matter, but that’s not an unusual scenario here. People in detention thank you to – you’ve got half a chance of staying, but your chances of staying are minimal if you’re found guilty of a criminal offence, particularly an offence of rape. So therefore let’s keep putting this trial off, off, off, off, off, off. Now, I’m not saying that’s what he’s doing here, but that’s not an unusual scenario. I get it, I understand that, but that’s just not how the system works.
This is a very simple case, it really is. It’s sex with one woman by consent the night before, the next day goes into another bedroom in the house, has sex with someone else. That’s the allegation. Now, he either says ‘didn’t happen, fabricated’, which is tending to be what he might be suggesting, fabricated, which means made up, or belief in consent, or consent, because he won’t know the distinction necessarily, but generally consent.
Now, you might have to run it on the basis – which we sometimes get, it’s a hard one to run, but it’s runnable. Look, didn’t happen, but if did, it was by consent. So you might be left with that double whammy way of running a trial. You know, it’s like ‘I didn’t kill him, but if I did it was really self-defence’. They’re the sorts of defences that are run.
[COUNSEL]: All right, well I think - - -
HER HONOUR: So the real question is whether or not he wants Legal Aid assistance …

I pause to observe that the judge appears to have been somewhat dismissive of counsel’s expressed concerns. It is apparent that counsel was sufficiently worried about the applicant’s mental state that he took the unusual step of addressing his disquiet to the judge in the absence of the applicant. What counsel imparted should, with respect, have provoked a somewhat different reaction in the judge than it seems to have. Indeed, in my view, several things should at the very least have raised a question in the judge’s mind as to whether the applicant was incapable of giving instructions to counsel due to his mental state.

First, counsel told the judge in effect that he was ‘not convinced’ that the applicant was in a position to give proper instructions. Thus, he said that the applicant could not ‘focus his attention on what he should be focusing his attention on’, did not really seem to understand ‘his predicament’, and did not seem to understand what counsel was saying to him. Secondly, counsel informed the judge that the applicant ‘did not seem particularly stable’. He added that if the applicant was ‘putting it on for some reason’, he was ‘doing a pretty damn good job’. In other words, counsel thought that the applicant’s apparent lack of stability was not feigned, so that the applicant appeared to be ‘obsessed, beyond just being silly’. Thirdly, counsel was so concerned about the applicant’s apparent lack of stability, that he raised with the judge the possibility of a court-ordered assessment of the applicant’s mental state.[10]
[10]See [72] below.

There is no reason to think that counsel’s concerns were not genuine, or other than conscientiously made. Notwithstanding counsel’s apparent concerns about the applicant’s mental health, however, the judge announced categorically that ‘[t]here’s no suggestion of mental health issues here’ — that was the very suggestion that counsel had been making — and declared with confidence that the applicant has ‘been able to give instructions, he just changes his instructions’.

I pause further to observe that counsel swore an affidavit on 3 August 2020, in which he deposed to the facts that: when he spoke to the applicant he felt ‘unsafe’; the applicant ‘was very aggressive in his demeanour, posture and vocal expression’; the applicant was ‘convinced [counsel] was a spy, working with the Court, planted for the purpose of helping the Court find him guilty’; the applicant ‘seemed utterly convinced of what he was saying’; and the applicant seemed incapable of understanding what counsel was saying. Counsel further deposed that he ‘became concerned about [the applicant’s] mental state and attempted to bring it to the attention of the court’.

Counsel swore a second affidavit on 21 August 2020 after he had been provided with the transcript of proceedings for 13 April and 16 April 2018. His affidavit contains the following:

16.By the second hearing [i.e. 16 April 2018]^[[11]]I have a recollection of having formed the view that Cihan Camurtay had a viable defence.
17.I recall attempting to communicate that to him.
18.I recall being presented with a story about his mistreatment but cannot remember the details of his allegations.
19.I recall pleading with him to let me help him, trying to explain that he had a viable defence and that without a lawyer he would be found guilty.
20.I recall the utter distrust he had for me and the police.
21.I cannot remember if he repeated his allegation that I was a spy for the court but remember him looking me in the eye and saying ‘I don’t trust you’ and ’I don’t want you to ask questions for me’ and ‘I don’t want you to be my lawyer’.

[11]See [40] below.

Furthermore, counsel gave evidence during the hearing in this Court and was cross-examined by senior counsel for the respondent. In evidence-in-chief he confirmed the truthfulness and accuracy of his two affidavits. It is unnecessary to set out senior counsel’s cross-examination of him, save to say that the witness said that the transcript ‘does not accurately reflect what was happening in that court’. In other words, the atmosphere was more fraught than the bare transcript reveals.

Returning to the events of 13 April 2018, after the applicant was brought into court, counsel said in his presence:

I’ve had a conversation with Mr Camurtay, and this is where we’re at. He was resistant to answer any questions, because he says that he hasn’t made a decision about whether or not to accept me as his lawyer yet. … And he has brought to my attention that he does not have access to the brief, and he wants to have a look at the brief before he answers my questions about what his position is. So as far as my role, that’s where we’re at Your Honour.

The judge then further discussed with the applicant the practicalities of representing himself. She repeatedly encouraged the applicant to accept legal representation, but he was insistent that he did not want legal assistance. In a moderately extensive exchange, the applicant said (among a number of other things) that he had thought of committing suicide. The discussion also included the following:

[APPLICANT]: What the women were saying in their statements – fabricated, it’s made up.
HER HONOUR: Made up, yes, didn’t happen.
[APPLICANT]: This was all planned, it was done for the money.
HER HONOUR: I see. But you said nothing happened, so what was the plan?
[APPLICANT]: They were going to get some money from the government, maybe some way of compensation, and later on they will be asking money from me.
HER HONOUR: I see, well very helpfully, the barrister who is going to be … cross-examining those two witnesses has now got that information, and he will put that to them and ask them ‘This is about money, isn’t it?’ … So he will do that. He will do that.
[APPLICANT]: Thank you so much. When we went to the police station, they said women had friend there, or (indistinct), or policeman. He did all the paperwork and everything to make it look like that I’m really a culprit, or guilty.
16 April 2018: The applicant’s first trial

Three days later, on 16 April 2018, the applicant’s first trial commenced before Judge Trapnell. The applicant declined the assistance of counsel briefed by VLA to cross-examine the protected witnesses JAM and ALW, despite the judge explaining to him that he could not conduct the cross-examination himself. Among the things that the applicant told the trial judge he said:

I actually have been sexually assaulted, rape by the two women. There was substance put in my food and my drink but because the police didn’t carry out their duties carefully today I don’t have any evidence in my hands.

Significantly, the judge explained to the applicant that he would not be permitted personally to cross-examine JAM or ALW, and the consequences that would flow from that. After the applicant made further complaints against the police, there was the following exchange:

HIS HONOUR: Now all of that is not going to assist you one bit if [JAM] gets into the witness box and gives the evidence which she has previously given as to what occurred on this night. Because you will not be able to put anything to her to contradict what she says. That is to refute what she says.
[APPLICANT]: It’s okay I’ll explain to the jury within half an hour what happened.
HIS HONOUR: The problem is that you won’t be permitted to explain to the jury what happened because you won’t have put any of that to the complainants. In other words you can’t give your version unless you put your version to them.
[APPLICANT]: My issue is even though I’m saying I’m going to make a complaint and I’m going to take it all the way until I get her locked up, she’s still sitting there and smiling. I don’t know what her trust is or where she gets her confidence, but I don’t trust a lawyer. I’m going to defend myself.
HIS HONOUR: All right, well the consequence of you not only defending yourself but refusing to cooperate with counsel appointed by direction of this court to cross-examine [JAM] and [ALW] is that you will be prevented by my order from giving your version of events if it contradicts, that is if it’s different to the version of events given by [JAM] and/or [ALW].
In other words if you don’t accept the assistance from [counsel briefed by VLA] you will not be telling the jury or in all likelihood you will not be telling the jury what you say happened. You won’t be given that opportunity.
[APPLICANT]: There’s no need to take this any longer. While she is laughing there I don’t trust this lawyer. I’m going to be doing my own defence.

I pause once more in order to note that s 357(5) of the Criminal Procedure Act 2009 provides that if an accused person ‘refuses the legal representation provided’ by VLA to cross-examine protected witnesses, ‘or otherwise refuses to co-operate’, the court

must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.

In my view, the passage extracted immediately above reflects compliance with s 357(5).[12]

[12]So much might have been relevant to the applicant’s third ground, which was abandoned on the hearing in this Court.

Returning to the trial, a jury was empanelled and the prosecutor opened. The applicant then told the jury the following in reply:

[APPLICANT]: First of all I’d like to thank you, every one of you individually for giving your time. I think it was justice as – um, justice was served picking the jury members. I’d like to thank the prosecutor also, he is trying his best to be – justice. I didn’t bring the file with me because everything that’s being said is a lie. Because the police is not impartial.
So, what I’m about to say now is going to be same as my written statement. I don’t want to steal more of your important time. I have said that I’m not accepting these accusations. I’m not going to do any more defence. As you can see I’m not using any solicitors because my lawyer actually defends the police more than they defended me in this case. And because I was suing the police also, they actually - - -
HIS HONOUR: We won’t go into irrelevant matters. Can we keep it to just the matters that are relevant to these proceedings.
[APPLICANT]: I did say I was not guilty with the accusations. I believe I was actually raped. Um, I’m not going to do any more defence talk, I don’t want to steal any more of your time, thank you for listening to me.

The trial then proceeded. JAM, ALW, GWE and various others gave evidence. None was cross-examined.

23 April 2018: Jury in first trial discharged

On 23 April 2018, the jury in the applicant’s first trial was discharged on the prosecutor’s application, after it was discovered that one of the DNA samples taken from JAM had become contaminated in the laboratory.

The course of the applicant’s second trial

Shortly prior to the commencement of the applicant’s second trial, on 4 June 2018 there was a mention before Judge Gaynor in which she, to no avail, also encouraged the applicant to accept the services of a lawyer.

On 3 July 2018, the applicant’s second trial commenced before Judge Ryan. The applicant was arraigned and a jury empanelled. After the prosecutor opened, however, the applicant declined the opportunity to address the jury in response.

The evidence of JAM, ALW and GWE (and a number of others) was put before the jury by playing the audio-visual recording of their evidence from the first trial. A significant number of other witnesses gave viva voce evidence.

Since the gist of their evidence is summarised above, it is unnecessary to repeat the evidence of JAM and ALW.[13]
[13]See [9]–[16] above.

GWE gave evidence that he was an Acting Sergeant of police. He said that he had met JAM through her community engagement work in 2012. They had developed an intimate relationship. On the night of the incident he was working at a police station in the southeast of Melbourne. Sometime after 2.00 am he received a telephone call from JAM. She said she had been raped by the applicant. While he was speaking to her, responding police contacted him to say they had arrived at the downstairs of JAM’s apartment building. He later travelled into the city and accompanied JAM as she dealt with police and sexual assault services.

Much of the balance of the prosecution case was concerned with the arrest and interview of the applicant; the conduct of the investigation; the production of CCTV footage from JAM’s apartment building, showing the applicant arriving and leaving; the gathering and continuity of forensic evidence; and the testing of DNA samples.

Ece Eken, a forensic officer, gave evidence to the following effect as to the results of DNA testing. A sample taken from JAM’s vulva contained DNA from at least two contributors. It was 100 billion times more likely that the applicant rather than another random member of the community was one of the contributors to the sample. The other contributor matched JAM. No saliva was found on the breast swab, so no further testing was done. No semen was found on JAM’s underpants. Testing of penile swab samples taken from the applicant led to a conclusion that it was 1,100 times more likely that a donor was JAM rather than a random member of the community. ALW was considered unlikely to be a donor.

Detective Senior Constable Rachel Lynch, the informant, gave evidence that she first became involved in the investigation shortly after 6.00 am on 10 November 2016. She said that JAM’s apartment was on the 14th floor of the building. The balcony of the apartment is not accessible from outside the apartment. She had contacted the applicant and arranged his attendance at a police station for interview by her on the evening of 10 November 2016. The applicant had no prior convictions or pending matters. When asked by the judge at the end of Detective Lynch’s evidence whether he had any questions for the witness he said that he did not.

The prosecution case was then closed.

Despite having indicated a number of times in the course of the trial that he wished to question the police, the applicant did not cross-examine a single witness.

The applicant’s evidence

At the close of the prosecution case, in accordance with s 228 of the Criminal Procedure Act 2009, the judge informed the applicant that he could say nothing or give evidence, but that if he gave evidence he could be questioned by the prosecutor and judge. In the course of the judge advising the applicant of his options, there was the following exchange:[14]
[14]Emphasis given to this and following passages.

[APPLICANT]: Um, I do understand. I’d like to explain how I will make my statement. I will make a – give evidence, but I’m not going to answer any questions.
HIS HONOUR: Mr Camurtay, it’s a matter for you whether you elect to go into the witness box, but understand this, once you enter into the witness box you are liable to answer – to respond to questions that the prosecution wish to ask you.
[APPLICANT]: You may ask questions, but it doesn’t stop me from giving my statement. I will choose not to answer your questions. I believe that is my legal right.
HIS HONOUR: Well, Mr Camurtay, I am explaining to you what your legal right is. I want you to listen very carefully. You may have a belief as to your legal right, I am now informing you as to what it is, not what you believe it to be. You have the right to go into the witness box to give your evidence and to say what you wish to say in answer to the charges. You are then liable to be cross-examined, that is, asked questions by [Prosecutor]. You are also liable to be asked questions by me. Whether you choose to answer those questions or not is a matter for you.
[APPLICANT]: I know.
HIS HONOUR: However, understand this, that [Prosecutor] has a perfect right to ask you questions. If you refuse to answer his questions, I have a power to direct you to answer his questions. What follows from that may be that you will conduct yourself in a way which would make you liable to the laws of contempt. So understand this. Should you go into the witness box, you are liable to be asked questions and you will be expected to answer them truthfully.
[APPLICANT]: I accept, sir. I agree.

In the result, the applicant gave the following evidence at trial (with the assistance of an interpreter). I set it out in full, so that its outlandish nature may properly be gauged. As will be seen, aspects of the evidence were not simply preposterous, but appeared to be quite delusional. The applicant claimed that he had been drugged and raped by JAM and ALW, and his evidence was peppered with recurring themes of bribery and corruption involving police, lawyers and judges. His evidence was:

I thank the court for giving me the opportunity to make my case to the jury. I want to say something, it will only take a couple of minutes and I don’t want to be interrupted during that time, if it’s possible of course.
The two women who have accused – or made allegations that I have raped them have actually, on that night, have raped me. They have placed something into my drink or the food. …
And as you know these two people have a police friend. You’ve seen him, [GWE]. The police officers who were working on that day who were processing have made the wrong process. Rather than investigating to reach the truth behind the matter they have focused on trying to criminalise me or they’ve concentrated on finding me guilty.
As you can see I’ve appeared with track pants in front of you. I do have a suit. However I’ve been in a detention centre for the last three months. My visa was cancelled. I have mentioned this to His Honour and in previous court cases and the reason for this is because I’ve been complaining about the police in this matter. I believe the police are quite powerful in this country but I believe they abuse their power.
I have been to the city before with regards to the legal application in this court. They referred me on to the Flemington police that I could lodge a complaint against them there. There’s an office, sorry, in Flemington. They said that I could lodge the complaint at that place. And the place in Flemington referred me on to another place in Kensington. And the people at Kensington referred me to another place in North Melbourne. But I didn’t give up because they sent me back to Kensington. They told me to come next week. They said ‘Well come back tomorrow again’ but I never gave up.
I used to have a lawyer that was assigned to me provided by the Legal Aid. I informed him that I wanted to put in an official complaint against the police. He said that unless I have a barrister, it was useless. Well I said, ‘Well I mean the State is providing one. Let’s get a barrister in that case’ I said. He said to me, ‘Do you know what a barrister costs?’ I called my family. My father has some savings and some land. He sent me $60,000. I went back to my solicitor. I said to him ‘I want to make the complaint, lodge a complaint now. Are you able to give me an idea as to what it costs?’ He said that he doesn’t accept any files relating to police.
As mentioned before, I’ve completed an engineering course. I know my solicitor. I saw that he was afraid. Lawyers in this country are afraid of the police. They don’t accept your legal – your complaints even when they’re legal. We had many discussions regarding this but you are not aware because you weren’t here. It wasn’t in your presence.
Besides, you’re not my first jury. I’ve appeared in front of a jury before. Do you know what happened? And His Honour is the fourth judge that I’m appearing before. I’ve been honest all along and each time they’ve sent me back to the detention centre. As you know, I don’t have money. At the moment I can’t even get pants. I do have money in my wallet but I can’t use it. And this court expects me to make a healthy defence, and each time it punishes me and then they keep sending me back to the detention centre and I end up being asked the same questions because the answer somehow doesn’t satisfy people.
So I’m repeating what I’ve said in the very first court that I (indistinct). The person guilty here is the informant of this case. Those at the police station on that particular day are at fault. The women that are accusing me of rape have raped me and they planned this. You may say this is all unlucky, but there’s more to it. They have police friends and they deal with the file whichever way they like. I’ve heard that, um, [ALW], on her request, that the police have withdrawn files or statements.

I’ve heard that upon [ALW’s] request that the police have withdrawn or changed statements. There are other important developments, some of which I have found out about six months later in a courtroom. The police’s concern is not to reach the truth, it’s to – it’s to protect themselves. I’m just gathering my thoughts. There’s more. Um, I went on to engage another lawyer, the first lawyer. He said to me, Cihan, you are being accused of rape, you need to find money, otherwise you’ll end up in gaol. It’s not important. The matter’s not important. What is important is what the court is going to believe. He mentioned to me about some contacts he had with some judges. The – the boss of this lawyer’s partner was a judge. He said we can resolve this matter in court for $500,000, between five and six hundred thousand dollars. He said enjoy life or end the rest of it in gaol. He didn’t even bother to read my file. He tried to abuse my situation. I complained against this solicitor.
Of course I wasn’t able to manage the complaint because of my lack of English and lack of funds, and besides, I was deteriorating psychologically, but I was afraid to make – lodge a complaint against the judge. In the meantime this judge did appear in my court case, the solicitor did arrange it. I know all of this may sound like a movie to you. This country is a great nation. If someone else told me all of this I would not believe it, but I tell you this. These two women assaulted me for money. The police mismanaged the whole case. But in the meantime the police officers who were on duty at the police station on the night have something different than the police officer in court here now.
She knew, she was aware that there’s something wrong. But she didn’t do anything different that the other police officers, so she abused her – so she, she abused her position. Of course, coming out so honestly with this has disturbed some people ‘cause in the previous court case I asked the question regarding the social worker, the one who assaulted me, the racist police officers and bribe-taking solicitors and judges. I’m not a police officer, as you can see, and I’m being tried for rape. And I’m not a lawyer but I’ve seen all of this in my file and I ask the question, … Which authority checks up on or audits the police, the legal system, social workers, civil servants in this country? How many people have need [scil, end?] up in gaol because of bribe-taking judges, lawyers, corrupt police and money-seeking social workers? I have notes here but the judge, His Honour, did not allow me to forward this on to you. Do you know what it writes here? What I do is I write done from number 1 to 500 and then write it backwards from 500 down to number 1. At the end of what I’ve been through in the last 20 months, my psychological situation is not well. I take antidepressants morning and evenings. You know, sometimes how I feel up there? Earlier on, like, I felt like throwing the whole file at the face of the judge.
But look at the allegations put. I mean you if have a look at me I don’t even have a traffic fine. I’ve completed two university courses. I’ve come here as a refugee to this country. I correct that. I came here to seek education but applied for refugee status. This country is like paradise.
I was asked if I had a place to stay through to a – when I arrived. Then I asked of the country was for them to give me a job and I’ve worked in whatever job I’ve found. I never took a cent from the government and at the end of my first year here I actually paid taxes. I applied for an electrician’s license. I passed the tests. I was accepted. I was happy and then a few days later this incident took place. …
This incident took place. According to the complaint, the allegation, I have a young girl with me, beside me and I end up raping someone who’s 20 years older than me. She has nothing to do with me. I had nothing to do with her. …
Why am I here? Because I’ve been charged with rape. Let’s look at the allegation. According to the allegation, the charge, the women say, whilst I’m in a relationship with a young woman on the same time of the incident, I rape – I go and rape another woman. Firstly, for me to commit something like that, I have to be sick mentally. If I am sick-minded, why haven’t I committed rape in the past? I mean we have females in Turkey too and there are women everywhere, even beyond this case, this incident, and this lady is actually a lot older than me too. I believe you’ve seen her on the video here.
Please don’t get me wrong. Let alone raping, I mean if she called me for coffee, I would not have time for her, and then again, based on other allegations, I rape her, she says ‘stop’ and I stop. So I’m stupid. If I’m raping someone, why do I stop? It’s all lies. These two people have assaulted me. They didn’t know I was a refugee, they thought I was rich because I had some goals. After, um, obtaining my electrician licence, I needed to complete a year’s of work here in Australia. My plan was to transfer my family’s wealth to this country to make an investment. I was going to go into construction, and these women knew that.
This is my defence, and the innocent is – is giving account, whereas the people who are guilty are free outside and there’s one here in court who is at fault as well sitting. There’s one more thing I’d like to say. There’s something, that another discussion took place between myself and the judge which you don’t know of. This courthouse is the most respectful room in Australia and His Honour is the most respected person in this room. But it was in my opinion that His Honour or the judges were not acting in the same respectful way in court.
I actually told him at the time that I didn’t really care what he was going to say. As each time I talk and then the case gets adjourned and then the judge changes, gets changed, I feel that’s an insult to the high standard of democracy we have in Australia. I believe the principle of court being impartial, independent, is being breached. So all of the things I’m telling you, I’m being tried but I say to you that the people who are at fault are the police. I’ve said in the other court cases that the people at fault are the system, the judge, the court, the police, the lawyers, the prosecutor, and that I’ve tried to take legal action in that regard.
What I say is very important. Like I said, I can’t even buy pants because this court is not happy with what I have to say, because I’m telling you the truth and the truth is trying to be obstructed. And there was something else I also said to His Honour, this is a democratic country. You may send me to gaol but you’re not. You’re making me suffer. I’m in a detention centre. It’s like gaol there. But if I was placed in gaol, I can then be free to lodge a complaint against this police female officer.
I believe my legal rights have been obstructed by the system. You can send me to gaol, send me. I’m going to lodge a complaint against this female police officer and against the system. But whilst in the detention centre, I’m not allowed to lodge a complaint. But in gaol I will be able to. And I’m going to put in a complaint or lodge a complaint against these two female persons who assaulted me. I have lodge [sic.] a complaint against the bribe-taking solicitor and I’m going to lodge a complaint against the bribe-taking judge and I will appeal this case to the higher court because it hasn’t done its job right. I show respect to whatever decision you reach. Thank you.

The judge intervened, and there was then the following exchange:

HIS HONOUR: All right. Now, there’s one thing that I need to understand that arises out of the evidence that you’ve given. The complainant, [JAM], says that you came into her bedroom. What do you say about that, did that happen?---I’m going to answer that. I want to say something.
I want you to answer my question. Did you go into [JAM’s] bedroom, yes or no?---Um, because it’s my belief that the court is – hasn’t been following due process and everything is being put against me, I’m choosing not to answer – I’m not going to answer your questions and if - - -
Mr Camurtay, you need to listen. I’m trying to understand what you’re saying. It is not plain to me what you have said and I don’t want there to be any mistakes about what you said. It seems to me that you’ve said that you did not rape [JAM], is that correct?---And that these two women instead raped me is what I’m saying.
We’ll get to that in a minute. I’m trying to understand what you said. Now it’s important that I understand what you said. So you say you did not rape [JAM], is that correct?---I did not rape them. They raped me. The placed something into my food or drink.
So what I need to understand is I need to ask you a couple of more questions?---Can I say something?
Will you listen to me and answer my questions and then you will be able to speak. Nobody has stopped you from speaking. Do you say that you went into [JAM’s] bedroom or do you say you did not go into her bedroom?---I believe, I believe I have answered all of the questions. I have said all of the things I wanted to say and that I wish to not answer any further questions or not to talk any further.
Mr Camurtay, it is not a matter of what you wish. Having entered the witness box you well understood that you were liable to be asked questions. The jury need to understand what your version of events are [sic.] in order to make an assessment of the case as a whole. So, the questions that I’m asking you are designed to assist you to make it plain to the jury what your version of events is. Now one thing that is important is whether you say you went into [JAM’s] bedroom or you say ‘I never went into the bedroom’.
What do you say about that?---Okay, I will answer. Your intention is not to find the guilty, ‘cause if it was, you would act in that way. Your aim is to close the file.
Mr Camurtay, I am not going to listen to this nonsense. Translate that, please. I am simply asking you a question about your recollection of events on this night?---But I am answering.
Well, you’re not doing much of a job of it. Now listen to the question and please respond to it. Do you say you went into [JAM’s] bedroom or do you say ‘I did not go into her bedroom’?---I understand your question.
I’m certain that you do. What’s the answer?---My answer to your question is not to answer any of your questions including this one. If there is any, um, legal avenue you can take, well, you can take it. Like I’ve stated before, I will appeal against this court as well. Thank you.

As the following exchange reflects, the prosecutor’s attempt at cross-examination proved to be unsuccessful:

[PROSECUTOR]: ... You know [ALW]; is that right?---I said – I stated that I had provided the court with sufficient details of – and just not with in regards to my own file.
HIS HONOUR: Mr Camurtay, the question is a very simple one, you will either answer it ‘yes’ or ‘no’. Put the question again please?---Okay, I will answer.
[PROSECUTOR]: You know [ALW]?---(Direct) No, no, you don’t need to ask again. My answer is I’m not going to answer any question. I told you yesterday. If you want to decide, decide it. I’m not talking anymore because this court is going one way, not (indistinct). Before police station is one way, before my lawyer explains one way, my judge explains one way. Even here, one way.
HIS HONOUR: Mr Camurtay?---I’m not giving you - - -
Mr Camurtay?---Sorry.
I’m very sick and tired of your speeches. You understood, as I explained to you in the absence of the jury, that should you elect to give evidence, you would be subject to questions by the prosecutor. You well understood that and having understood that, you entered the witness box. You will answer the prosecutor’s questions; I direct you to as a matter of law?---I am giving an answer but it doesn’t please you.
Put the question again please, [Prosecutor].
[PROSECUTOR]: You know [ALW], don’t you?---Like I said, you don’t need to ask again, again. I understand. My English is not very, very bad.
HIS HONOUR: Will you answer the question, Mr Camurtay?---My answer is I’m not going to answer any question.
Return to the dock?---Thank you so much.

Other exchanges with the judge during the second trial

Apart from the applicant’s evidence and the exchanges with the judge set out above, the applicant had a number of other exchanges with the trial judge in the course of the trial. It is unnecessary to set them out in detail — many lengthy exchanges occupied many pages of transcript — but one may sufficiently appreciate the flavour of what the applicant said to the judge from the following brief summaries:

· 3 July 2018: The applicant asserted that his ‘first barrister’ — about whom he has filed an ‘official complaint’ — had told him that he would find him a judge; it would cost him ‘about $600,000’; and he will ‘get away with it’. He then set out a litany of grievances concerning his inability to put in a complaint.

· 4 July 2018: The applicant complained that his interpreter was not translating properly, and then complained that ‘the police is very forceful in [this] country and I think they’re controlling everything here too’.

· 6 July 2018: The applicant complained that the investigating police are at fault, and asserted, ‘I’ve said that the solicitor was at fault [and] that the previous judge took bribes’.

· 10 July 2018: The applicant told the judge that a witness had sent him text messages in an attempt to extort money from him.

Events after verdict

Following the jury’s verdict of 14 July 2018, the applicant was remanded in custody in prison. What occurred in the wake of his remand sheds some further light on his mental state.

On or about 8 November 2018, the applicant was made subject to a secure treatment order under s 276 of the Mental Health Act 2014, and was transferred to Thomas Embling Hospital, a high-security forensic mental health hospital. Section 276 permits the Secretary to the Department of Justice and Regulation to make such an order in relation to a person detained in a prison if the person has been examined by a psychiatrist, and the Secretary is satisfied by the psychiatrist’s report (and any other evidence) that the person has a mental illness, and, because the person has a mental illness, the person needs immediate treatment to prevent ‘serious deterioration in the person’s mental or physical health’ or ‘serious harm to the person or to another person’.

When he was admitted to Thomas Embling Hospital, a psychiatric registrar noted that he was transferred for the treatment of ‘ongoing persecutory and conspiratorial delusions involving the Police, the justice system, including his legal representatives, the wife of his former boss that has connections with the judge involved in his case’. His diagnosis was ‘Delusional disorder’ or ‘Schizophrenia type disorder’.

Further, a psychiatric report dated 22 November 2018 noted a diagnosis of Delusional disorder and provided reasons supporting the applicant’s ongoing detention. On 27 November 2018, the Mental Health Review Tribunal, acting on that report, was satisfied that the criteria for ongoing detention as a security patient under the Mental Health Act 2014 had been satisfied and ordered that he remain a security patient. By s 279 of the Act, the Tribunal may only make such an order if satisfied that the person has a mental illness, and, because the person has a mental illness, the person needs immediate treatment to prevent ‘serious deterioration in the person’s mental or physical health’ or ‘serious harm to the person or to another person’.

Following treatment, including with anti-psychotic drugs, the applicant was discharged back to prison on 22 February 2019.

I note that, whilst he was at Thomas Embling Hospital, the applicant was examined by a number of psychiatrists. Although one psychiatrist did ‘not see his beliefs around the allegations and investigations, as a consequence of truly delusional beliefs’, another thought there to be ‘sufficient grounds’ to make a provisional diagnosis that the applicant suffered a ‘Delusional disorder’ requiring ongoing treatment with anti-psychotic medication. Further, the psychiatrist who treated the applicant upon his return to prison was of the opinion that the applicant suffered from a ‘psychotic illness’. Although the applicant continued to express delusional beliefs regarding the police and the legal system, however, the treating psychiatrist thought these to be ‘more contained and less distressing’.

Section 6 of the CMI Act

So as to determine the issues raised by the present application, it is necessary to have regard to several key provisions of the CMI Act.

Section 7(1) provides that a person is presumed fit to stand trial. By s 7(2), that presumption is rebutted only if it is established, on an investigation under Part 2 of the Act, that the person is unfit to stand trial. And s 7(3) provides that the question of a person’s fitness to stand trial is a question of fact to be determined on the balance of probabilities.

The circumstances in which a person is unfit to stand trial are spelled out in s 6 in the following terms:

6 When is a person unfit to stand trial?
(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.

Importantly, s 9 provides (so far as relevant):

9 Reservation of question of fitness to stand trial by court
(1) At any time after an indictment has been filed, if it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve the question of the fitness of the accused to stand trial for investigation under this Part.
(2) At any time during a trial, if it appears to the trial judge that there is a real and substantial question as to the fitness of the accused to stand trial, the judge must adjourn or discontinue the trial and proceed with an investigation under this Part.
(3) Nothing in this Act prevents the question of the fitness of an accused to stand trial from being raised more than once in the same proceeding.

When a court reserves the question of the accused’s fitness for investigation pursuant to s 9, s 10(1)(d) permits the court (if it is in the interests of justice to do so) to order that the accused undergo an examination by a registered medical practitioner or registered psychologist, and order that the results of the examination be put before the court. The procedure for an investigation is set out in s 11. Among other things, it makes plain that the question of fitness is to be determined by a jury, and it spells out the powers of the court following the jury’s determination.[15] Section 11(1)(b) specifically permits the court (if it is in the interests of justice to do so) to call evidence of its own initiative, and to require the accused undergo an examination by a registered medical practitioner or registered psychologist, and require that the results of the examination be put before the court.
[15]During the current pandemic, the question of a person’s fitness to be tried is determined by a judge alone, See Part 11 of the CMI Act. See also Carson (a Pseudonym) v The Queen [2020] VSCA 202.

By virtue of s 12(1), if the accused is found fit to stand trial, the trial must be commenced or resumed. If the jury finds that the accused is not fit to stand trial, however, ss 12(2) to (5) permit the court to make various orders, including granting the accused bail; and remanding him or her in custody in an appropriate place (such as a designated mental health service) or a prison.

Psychiatric opinion

Dr Prashant Pandurangi, a forensic psychiatrist, provided three reports — dated 13 August 2019, 25 September 2019 and 9 August 2020 — which were tendered during the hearing in this Court. He also gave evidence confirming the opinions expressed in the three reports, and was cross-examined at some length by senior counsel for the respondent.

Dr Pandurangi’s initial report, dated 13 August 2019, was obtained post-conviction. He had been requested to address ‘mental health issues of potential relevance in sentencing’. Dr Pandurangi expressed the opinion that the applicant suffers from a paranoid psychotic illness, namely a Delusional Disorder, as set out in the International Classification of Diseases, Tenth Edition (ICD-10).

In his report of 25 September 2019, Dr Pandurangi acknowledged that a ‘retrospective evaluation of an individual’s mental state, which may have affected their fitness to stand trial is challenging and far from straightforward’, since such an evaluation is ‘not based on an assessment at the time and relies heavily on the collateral information’. He observed:

Mr Camurtay’s presentation has been challenging and hence various clinicians who have assessed him, have arrived at somewhat different opinions. In my view, there is some evidence, from the people close to him including his relative and immigration lawyers, which suggests that his mental state starts to deteriorate under the extraordinary pressures of being charged with a sexual offence.
This is not unusual, especially in individuals who have previously experienced significant trauma and have become oversensitive to such experiences. There is a slow emergence of an incorrigible delusional belief that there is a Police conspiracy against him, which then spreads to other aspects of the criminal justice system, including his legal representatives and the Courts. It is not just the systematised beliefs regarding the conspiracy itself, but also the way they emerge and have extended to contaminate the World around him. I am still of the opinion, with a degree of medical certainty, given his consistent presentation over the past year, across various assessments, that Mr Camurtay suffers from a paranoid psychotic illness, namely a Delusional Disorder, as set out in the International Classification of Diseases, Tenth Edition (ICD-10). These are a heterogeneous group of disorders, where the central characteristic is a delusional belief, which is usually non bizarre and well-systematised. Individuals with this disorder do not exhibit the wide range of psychopathology (for example – passivity phenomena and hallucinations), as experienced by individuals with schizophrenia and do not suffer the psychosocial decline over the years. The onset of the illness is usually late in life, and is related to a reality-based stressor, which is personal to a particular individual.
The onset of the illness is difficult to ascertain from Mr Camurtay as he does not believe that he suffers from a psychotic illness. From his own account and that of others who were in contact with him, his current belief system appears to have developed in the months after he was charged with the offences and was more crystallised around the time, he was detained at the Immigration Detention Centre. There are some concerns expressed by [counsel engaged by VLA to cross-examine the protected witnesses] about his mental state at the directions hearing in April 2018. He expresses persecutory and conspiratorial beliefs throughout his trial. His mental state breaks down in to frank psychosis immediately following incarceration, and is transferred to Thomas Embling Hospital for involuntary treatment, where he spends approximately three months. He has spent most of his time, in custody, under the care of mental health teams, either in a prison mental health unit or at a hospital.

So far as the criteria in ss 6(1)(a) to (e) of the CMI Act are concerned, Dr Pandurangi expressed the opinions that the applicant:

· first, would have understood the nature of charges against him;

· secondly, understood the pleas available to him, ‘had the ability to weigh up the pros and cons and understand that there was a risk of being found guilty’, and understood the concept of a jury and his right of challenge;

· thirdly, understood the nature of the trial — that is, that it was a process by which courts reach a decision — and the roles of various participants;

· fourthly, engaged on several occasions directly with the judge, and, when provided with the opportunity, addressed the jury, so that there is no indication to suggest that he was unable to follow the course of the trial; and,

· fifthly, was clearly aware of the substantial effect of the evidence against him — albeit that he believed the case was the result of an underlying conspiracy — and understood the effect the evidence would have, especially if not tested through a cross-examination.

Importantly, however, with respect to the criterion in s 6(1)(f), Dr Pandurangi said:

This is the most difficult aspect, as [the applicant chose] to represent himself. Giving instructions to a lawyer is likely to include, amongst others, giving a meaningful account of their version of alleged offences, how to respond to the allegations against them, being aware of their own circumstances and a trust in their lawyers. Mr Camurtay had formed this fixed and firm belief that there was some form of a nexus between the lawyers and higher levels of the Judiciary. He had been asked to pay exorbitant amount of money by his lawyers to get him exonerated, that he had been ‘threatened’ by his lawyer and being persuaded not to complaint against the Police. He repeatedly mentions these issues during the trial and gives these as an explanation for representing himself. He clearly struggles to conduct his own defence. I am unable to say, with any confidence, that if he were indeed represented by a Counsel, he would have been able to provide them with instructions.

In his third report, dated 9 August 2020, Dr Pandurangi said that he remained of the opinion — expressed in his earlier reports — that the applicant suffers from a paranoid psychotic illness, namely a Delusional Disorder. He also stated (among other things):

As explained, his illness is characterised by a slow emergence of an incorrigible delusional belief that there is a Police conspiracy against him, which then spreads to involved other aspects of the criminal justice system, including his legal representatives and the Courts. It is not just the systematised beliefs regarding the conspiracy itself, but also the way they emerge and have extended to contaminate the World around him, is the pertinent issue. He remains convinced about the Police conspiracy, however, fortunately has been able to form some trusting relationship with his legal team.
…
Mr Camurtay, at our interview, continues to hold conspiratorial beliefs regarding the Police and how it affected his Court hearing. However, he has now expressed confidence in his current lawyers and the Courts, which is probably attributable to psychotropic treatment. …

Once more, it is unnecessary to set out senior counsel’s cross-examination of Dr Pandurangi in any detail. In large part, it was directed towards showing that, despite his mental disorder, the applicant would still have been able to instruct lawyers as to his defence, prompting Dr Pandurangi to say at one point that the applicant ‘is able to provide a defence which is etched in his underlying delusional beliefs’. Dr Pandurangi also said that ‘even now [the applicant] does not believe he has a mental illness’.

Ground 1: The applicant’s fitness to stand trial

Section 9(1) of the CMI Act provides that a court before which the accused is to be tried must, at any time after an indictment is filed, reserve the question of the fitness of the accused to stand trial for investigation if it appears to the court ‘that there is a real and substantial question as to the fitness of the accused to stand trial’. And s 9(2) provides that if it appears to the trial judge at any time during a trial ‘that there is a real and substantial question as to the fitness of the accused to stand trial’, then the judge must adjourn or discontinue the trial and proceed with an investigation as required by the Act.

In Madafferi,[16] the Court (Priest, Hansen and Coghlan JJA) set out the approach to be taken by a trial judge when a real and substantial question arises at trial as to an accused person’s fitness to be tried, observing that the CMI Act requires the judge to reserve the issue of the accused’s fitness to stand trial for investigation if

‘it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial’. Therefore, if an issue had been raised by either party in the applicant’s trial as to his fitness to be tried, and the judge had considered that there was a real and substantial question as to the fitness of the applicant to stand trial, the trial judge would have erred if he had failed to take the steps contemplated by the CMI Act. And if, neither defence nor prosecution having raised the issue, it appeared to the judge that there was a real and substantial issue as to the applicant’s fitness to be tried,[17] but the judge failed to reserve the question for investigation under the CMI Act, the judge would have erred.

[16]Madafferi v The Queen [2017] VSCA 302, [6] (‘Madafferi’).

[17]For example, in Kesavarajah v The Queen (1994) 181 CLR 230, during his charge to the jury, various matters came to the trial judge’s attention which again raised the question of the applicant’s fitness to be tried, including a note of the applicant’s to the effect that he was receiving instructions from aliens, was the incarnation of Lord Vishnu and had just returned to Earth.

The Court in Madafferi observed that there was little (if anything) that occurred during the trial in that case which was capable of making it appear to the trial judge that there was a ‘real and substantial question’ as to the applicant’s fitness to stand trial.[18] But the Court made clear that this Court’s jurisdiction is enlivened if for any reason there has been a substantial miscarriage of justice:[19]

That said, it must nonetheless be understood that this Court’s jurisdiction to intervene with respect to the applicant’s conviction would be enlivened if for any reason ‘there has been a substantial miscarriage of justice’.[20] Thus, notwithstanding the failure of the parties or the judge to raise any issue as to the applicant’s fitness to be tried during the course of his trial — and any infelicity in the formulation of the ground of appeal — this Court’s jurisdiction would be animated if it appeared that at the time of his trial there was a real and substantial issue as to the applicant’s fitness to stand trial. Self-evidently, if the applicant was unfit because he satisfied any of the criteria set out in ss 6(1)(a) to (f) of the CMI Act — or, at least, there was a real and substantial issue as to whether he did so — then his conviction could not be permitted to stand. That was the approach adopted by Hayne J in Eastman[21] (albeit with respect to a different statutory regime).[22]
In Eastman, the applicant had been convicted of murder in the Supreme Court of the Australian Capital Territory. He had appealed to the Full Court of the Federal Court against conviction, in circumstances in which the question of his fitness to plead or to stand trial had neither been raised at trial, nor agitated in the Full Court. The applicant then sought special leave to appeal from the High Court, the principal issues for the High Court being, first, whether special leave to appeal should be granted; secondly, whether the High Court could accept new evidence tendered by the applicant as to his mental condition and his asserted resulting unfitness; and, thirdly, whether the Full Court erred in not considering the issue of fitness to plead of its own initiative. Ultimately, the High Court granted special leave to appeal (Gaudron, Kirby, Hayne and Callinan JJ; Gleeson CJ, McHugh and Gummow JJ dissenting); but held that the High Court could not receive the further evidence which the applicant sought to tender (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Kirby and Callinan JJ dissenting); and that the Full Court of the Federal Court was not in error in not having made inquiries about, or considered, the applicant’s fitness to plead or stand trial (Gleeson CJ, McHugh, Gummow and Kirby JJ; Gaudron, Hayne and Callinan JJ dissenting). Although Hayne J was in the minority as to the third issue, we do not think the force of his Honour’s observations on the aspect set out below is diminished by virtue of that fact. Hayne J observed:[23]
The Full Court was bound to set aside the conviction if there was a miscarriage of justice. And there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. That is, to adopt the terms used earlier, there is a miscarriage of justice if there is a real and substantial question to be considered about the accused’s fitness. The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this court[24] and in intermediate appellate courts[25] in which questions of fitness have been raised on appeal. There the question for the appellate court has been treated as being whether there was a question as to the accused’s fitness, not whether the appellate court was persuaded that the accused was not fit. Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside.
Of course, an important difference between the present application and that in Eastman is that, unlike the position in Eastman, the issue of the applicant’s unfitness to stand trial is distinctly raised on the putative appeal to this Court by the proposed ground of appeal. In those circumstances, as the text of s 276 of the Criminal Procedure Act 2009 makes plain, the fundamental question for this Court on an appeal against conviction must always be whether there has been a substantial miscarriage of justice. That being so, the Court in the present case should not be diverted by nice questions as to whether the evidence upon which the applicant seeks to rely in support of his application is new or fresh evidence.[26]

[18]Madafferi, [7].

[19]Ibid [8]–[10].

[20]Criminal Procedure Act 2009, s 276(1)(c).

[21]Eastman v The Queen (2000) 203 CLR 1 (‘Eastman’).

[22]See s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT).

[23]Eastman, 106 [319] (emphasis in original).

[24]Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah (1994) 181 CLR 230 (citations in original).

[25]eg, Khallouf [1981] VR 360. See also R v Dashwood [1943] KB 1; R v Podola [1960] 1 QB 325 (citations in original).

[26]See Rich v The Queen (2014) 43 VR 558, 570–1 [49]–[50] (Nettle, Neave and Osborn JJA); Bowden (a pseudonym) v The Queen [2017] VSCA 46, [37] (Priest JA).

In both oral and written submissions, counsel for the respondent put to the forefront certain observations of Gleeson CJ in Eastman, endorsing some of what had fallen from the Ontario Court of Appeal in Taylor. He said:[27]

The Ontario Court of Appeal, in R v Taylor,[28] recorded the following propositions, agreed by counsel, as representing the state of authority in that province:
‘(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.
(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c) The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d) The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.’
In the present case, the ultimate test to be applied is the statutory test set out earlier.^[[29]] However, each of the above propositions is sound, and they are consistent with the statutory test.

[27]Eastman, 14–15 [26]–[27].

[28](1992) 77 CCC (3d) 551 at 564-565.

[29]Earlier, Gleeson CJ had set out the relevant test as follows (Eastman, 14 [23]):

For the purposes of the present case, the test was the subject of statute. Paraphrasing s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT), and applying it to the present case, the test was whether the applicant was capable of — (a) understanding what it is that he had been charged with; (b) pleading to the charge and exercising his right of challenge; (c) understanding that the proceeding before the Supreme Court would be an inquiry as to whether or not he did what he was charged with; (d) following, in general terms, the course of the proceeding before the Court; (e) understanding the substantial effect of any evidence given against him; (f) making a defence to, or answering, the charge; (g) deciding what defence he would rely on; (h) giving instructions to his legal representative (if any); and (i) making his version of the facts known to the Court and to his legal representative (if any).

It may readily be accepted that, if a person’s mental disorder does no more than prevent him or her from having ‘an amicable, trusting relationship with counsel’, then he or she is not unfit to stand trial.

It may also readily be accepted that the fact that an accused person suffers from a delusion does not of itself render him or her unfit to be tried. But it may. If an accused person’s delusion is such that he is incapable of giving proper instructions to counsel, then, depending on the circumstances, s 6(1)(f) of the CMI Act may be engaged. Whether that is so will fall to be determined according to the particular facts of the case. Significantly, of course, in the present case there was no investigation of the kind contemplated by s 11 of the CMI Act concerning the applicant’s fitness to be tried, because no judge saw fit to reserve the question of his fitness under s 9. And from this distance, it is impossible to predict what a jury’s finding might have been.

In my opinion, there were two points in particular at which it should have occurred to a judge dealing with the applicant’s case that there was a ‘real and substantial question as to the fitness of the [applicant] to stand trial’. First, in the course of the final directions hearing on 13 April 2018, it should have occurred to Judge Pullen that there was a need to reserve the question of the applicant’s fitness to stand trial for investigation; and, secondly, after the applicant had given evidence, it should also have occurred to Judge Ryan that there was a need to reserve the question of the applicant’s fitness to stand trial for investigation.

It will be remembered that, on 13 April 2018, experienced counsel who had been briefed to cross-examine the protected witnesses conscientiously informed Judge Pullen that he had come to court because he had ‘grave concerns’ for the applicant. He took the unusual course of addressing the judge in the applicant’s absence, suggesting that the judge should consider having the applicant’s mental state assessed. Counsel in essence conveyed to the judge that he considered the applicant to be obsessed, unstable, unable to focus his attention on relevant matters and incapable of giving proper instructions. In counsel’s view, the applicant was not feigning his apparently unstable demeanour and attitude.

What counsel told Judge Pullen should have been sufficient to prompt the judge to take action pursuant to s 9(1) of the CMI Act. In my opinion, the judge should have reserved the question of the applicant’s fitness to stand trial for investigation; and, for that purpose, should have adopted the course suggested by counsel and ordered under s 10(1)(d) that the applicant be examined by a psychiatrist. Indeed, it is difficult to understand how the judge was able so perfunctorily to dismiss counsel’s legitimate concerns, and so easily conclude that ‘there’s no suggestion of mental health issues here’, when that is precisely the suggestion that counsel was making. As far as I can tell, the only explanation for the judge’s dismissive attitude to counsel’s unease was a mindset that the applicant may deliberately have been prevaricating in order to avoid deportation.[30]
[30]See [31] above.

The failure of the judge on 13 April 2018 to reserve the question of the applicant’s fitness to stand trial for investigation is the source of a substantial miscarriage of justice.

Moreover, the trial judge should, in my view, have taken appropriate action under s 9(2) of the CMI Act, after the applicant had given his evidence (particularly in light of what had previously transpired in the course of the trial). I consider that the content of the applicant’s evidence went beyond the merely risible, and bespoke a mental state removed from reality. That it was so should have led the trial judge to conclude that there was a real and substantial question as to the applicant’s fitness to stand trial.

Although by the stage that the applicant gave his evidence the trial was almost complete, that provided no sound reason for the judge not to put in train an investigation into the applicant’s fitness. By its terms, s 9(2) makes plain that the judge ‘must adjourn or discontinue the trial and proceed with an investigation’ if at ‘any time during [the] trial’ it appears to the trial judge that there is a real and substantial question as to the fitness of the accused to stand trial.[31]
[31]That was also the case prior to the enactment of the CMI Act. See, for example, Kesavarajah v The Queen (1994) 181 CLR 230.

The failure of the trial judge to reserve the question of the applicant’s fitness to stand trial for investigation following his evidence is also the source of a substantial miscarriage of justice.

As is plain, the question of the applicant’s fitness to be tried arose on the material that was before both Judge Pullen and Judge Ryan, none of which was evidence of expert psychiatric opinion. In this Court the applicant’s counsel relied substantially on the opinion expressed by Dr Pandurangi, from which it might be concluded that the applicant was afflicted with a delusional disorder in the lead-up to, and during, his trial. I have not had to rely on Dr Pandurangi’s opinion, however, to conclude that there was a real and substantial question as to the applicant’s fitness to be tried, which should have prompted the investigation required by the CMI Act. As I have indicated, the objective material that was before the judges in the County Court should have been sufficient to raise a real and substantial question in their minds. That said, Dr Pandurangi’s opinion, coupled with the fact that the applicant was made subject to a secure treatment order so soon after his trial because he was mentally ill (and was treated for his illness at Thomas Embling Hospital), combine to solidify the conclusion that there was a real and substantial question as to the applicant’s fitness to be tried shortly before, and at the time of, his trial.

At the risk of repetition, it is impossible to anticipate the finding that a jury might have made had the question of the applicant’s fitness to stand trial been investigated when it should have been. It might safely be concluded, however, that the jury in any such investigation would have had the benefit of the results of a court-ordered, contemporaneous examination by a psychiatrist (or psychiatrists), shedding light on the applicant’s mental state.

Self-evidently, it could not be said in this case that the verdicts were inevitable notwithstanding the departure from proper process, since, depending on the outcome of the investigation into the applicant’s fitness — had there been one — there may not have been any verdicts returned at trial. Moreover, as several pre-trial discussions between various counsel and judges in the County Court indicate, there is a respectable view that — competently represented — the applicant appears to have a viable ‘defence’. Of course, the strength of that anticipated defence could only be tested at a properly conducted trial.

Conclusion

For the foregoing reasons, leave to appeal should be granted, the appeal allowed and a new trial ordered.

It might be expected that the first order of business at any new trial will be an examination of whether, based on the material then before the County Court, there remains a real and substantial question as to the applicant’s fitness to be tried.

NIALL JA:

I agree with Priest JA.

WEINBERG JA:

I agree with Priest JA.

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[2020] VSCA 221

3 September 2020