Cihan Camurtay v The Queen - [2020] VSCA 221

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cihan Camurtay v The Queen

Details

AGLC: Camurtay v The Queen [2020] VSCA 221
Case: [2020] VSCA 221
Decision Date: 3 September 2020

CaseChat Overview and Summary

Cihan Camurtay was convicted of multiple counts of rape and sought to appeal his conviction on the grounds of fitness to be tried and the availability of fresh evidence. The case was heard by the Supreme Court of Victoria. The appellant argued that there was real and substantial evidence suggesting he was unfit to be tried at the time of his original trial, and that his post-trial psychiatric assessment revealed a delusional disorder. The appellant contended that this new evidence constituted a substantial miscarriage of justice warranting a new trial.

The court was required to determine whether the appellant's post-trial psychiatric assessment raised a real and substantial question as to his fitness to be tried at the time of his original trial. Additionally, the court needed to decide if the new evidence demonstrated a substantial miscarriage of justice, warranting the quashing of the appellant's convictions and the ordering of a new trial. The legal framework for these determinations was established by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

The court found that the appellant's post-trial psychiatric assessment did indeed raise a real and substantial question regarding his fitness to be tried at the time of his original trial. The court also concluded that the new evidence demonstrated a substantial miscarriage of justice. The appellant's fitness to be tried was not questioned before or during the original trial, and the belated psychiatric assessment provided compelling evidence of his delusional disorder. The court relied on Madafferi v The Queen [2017] VSCA 302 to support its decision. Consequently, the court quashed the appellant's convictions and ordered a new trial.

Orders