Director of Public Prosecutions v Coulter and Giles (Ruling No 1)

[2013] VSC 28

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT GEELONG

CRIMINAL DIVISION

S CR 2012 0120
2012 0121

DPP

v

CHRISTOPHER LEIGH COULTER
GARETH GILES

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JUDGE:	OSBORN JA
WHERE HELD:	Geelong
DATE OF HEARING:	4 – 6 February 2013
DATE OF RULING:	6 February 2013
CASE MAY BE CITED AS:	DPP v Coulter & Giles (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2013] VSC 28

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CRIMINAL LAW – Fitness to stand trial – Reservation of the question of fitness of the accused to stand trial – Consequential orders – Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) ss 9, 10, 47.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R Gibson	Office of Public Prosecutions
For the FirstnamedAccused	Mr P Chadwick SC	James Dowsley & Associates
For the Secondnamed Accused	Mr S Johns	Robert Stary Lawyers

HIS HONOUR:

1. Mr Chadwick has this morning submitted that I should reserve the question of Mr Coulter's fitness to stand trial pursuant to s 9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). Section 9(1) provides:

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.

1. That application is made on the basis of two psychologists’ reports filed with the court at the end of last week, being the report of Dr Aaron Cunningham dated 25 January 2013 and the report of Ms Izabela Walters of 31 January 2013. These reports support the conclusion that Mr Coulter is cognitively impaired, possibly as a result of acquired brain injury, to the extent that he is unfit to stand trial in the senses contemplated by s 6(1)(d), (e) and (f) respectively:

(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—

…

(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.[1]

[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 6.

1. The factual basis of the submission is neither that Mr Coulter is mentally ill nor that he is intellectually disabled in the general sense of falling below a standard recognised for the purposes of the Disability Act 2006, but rather that he has specific cognitive limitations which render him unfit to stand trial. 

1. The Crown has not, because of the late stage at which the point was raised, had the opportunity to obtain an opinion from a forensic psychiatrist as to the question now raised.  Arrangements have, however, been made for Mr Coulter to be seen by a Dr Sullivan at Forensicare on 26 February 2013. 

1. As Mr Gibson submits, s 7(1) of the Act provides that, in the first instance, a person is presumed to be fit to stand trial. Nevertheless, as s 7(3) makes clear, the question of a person's fitness to stand trial is a question of fact and a matter where it is properly raised for determination by a jury.

1. In my view, s 11(1) of the Act implicitly recognises that a psychological opinion may properly form the basis of an investigation into the fitness of an accused to stand trial. That section envisages the provision of reports both by psychiatrists and psychologists for the purposes of an investigation pursuant to the Act.

1. Further, a real and substantial question as to fitness to stand trial will arise under s 9(1) if there is evidence upon which a jury, properly directed, could conclude that the accused was not fit for trial.[2] 

   [2]See Eastman v The Queen (2000) 203 CLR 1; R v Orford [2005] VSC 404; R v Benbrika (Ruling No. 22) [2008] VSC 446.

1. The section does not require that the judge be satisfied of a prima facie case.  The question is whether there is a proper basis for the issue to go to a jury.  In Benbrika, Bongiorno J put it this way:[3]

For it to appear to the trial judge that a real and substantial question has arisen, it must appear that, on the evidence before him or her, a jury properly instructed could find that unfitness was made out.

[3]R v Benbrika (Ruling No. 22) [2008] VSC 446, [14].

1. In my view, the reports of Dr Cunningham and Ms Walters do provide a properly arguable evidentiary basis for such a conclusion. Ultimately, Mr Gibson did not contend otherwise. In turn, s 9 imposes an obligation which ‘must’ be fulfilled by the judge if the requisite facts appear to the judge to be satisfied. Accordingly, I propose to reserve the question of fitness of Mr Coulter to stand trial for investigation under pt 2 of the Act.

1. I will also direct, pursuant to s 10(1)(e) of the Act, that a report be provided by the Disability Forensic Assessment Treatment Service at Port Phillip Prison, or such officer of such prison as the prison governor may nominate, as to where Mr Coulter is best accommodated, pending resolution of his trial. The basis of this order is the circumstances summarised in the Prisoner Indent Report dated 6 February 2013, which has been obtained today, and the email from Ms Deborah Coombs under cover of which the report was provided.

1. The Prisoner Indent Report summarised the outcome of a review and assessment which was undertaken on 31 August 2012:

Chris is involved in the ongoing grow, small business, NA, doing time and general education programs that are offered in the unit. Chris has also completed the industrial cleaning, food handeling [sic], OH&S, youth drugs & anger, drug education and relapse prevention programs. Chris continues to achieve his local plan goals set. He maintains faily [sic] ties with his partner and child, who visits regular and via phone. He is currently employed as in the priosn [sic] main kitchen and receives good work reports. Chris does not participate in OSTP program and states that he has nil current medical issues. Chris has improved since getting his employment in the kitchen and returning from Borrowdale. Chris integrates well and gets along with the inmates in the unit. Whilst being at Port Phillip Prison Chris has had 2 reportable Chris has expressed to the R & A Panel that he would like to remain in Penhyn Unit to continue with programs and stay out of trouble.

1. The covering email from Ms Deborah Coombs states (omitting formal parts):

Mr Coulter was recepted on 12 January 2012.  On 16 January, he was transferred to Penhyn Unit at Port Phillip Prison, which is mainstream, but is physically next to Marlborough Unit, and has some of the benefits of Marlborough.  Marlborough is the Unit for special needs, but is usually limited to sentenced prisoners.

Mr Coulter has been in Penhyn for the whole of his time at Port Phillip, except for 8 - 13 February 2012 when he was in St Paul's Unit and under observations, and from 21 February - 16 March 2012 when he was in Borrowdale Unit.

I have discussed Mr Coulter with the Sentence Management officer, who did not know Mr Coulter, but considered he looked settled in the Penhyn, from where he is working in the kitchen.  The same work is not available from Marlborough.  The Sentence Management Unit have noted possible concerns, consider him settled in his current placement.  Of course, if he is assessed by DHS, his placement will be reviewed.

1. I will further remand Mr Coulter in prison until 27 February 2013 and direct that on that day he be brought before this court at 9:30 am at Geelong. I am satisfied pursuant to s 10(3) that there is no practical alternative to imprisonment in the current circumstances. Mr Coulter is not a person who would, on the face of it, be appropriately accommodated in what is defined to be an ‘appropriate place’ by s 3 of the Act. Further, no submission has been made on his behalf that there is a practical alternative to custody in prison at this point in time. Rather, as my previous orders indicate, the question of when and how he is best held in prison has been agitated; it is this underlying concern that prompts the direction I have given for a report from Port Phillip Prison.

1. In addition, no s 47 certificate has been  able to be obtained or other effective inquiries made of the Department of Human Services in the time since the psychologists’ reports were obtained by the Court.

1. I will order that a certificate of available services be requested from the Secretary to the Department of Human Services pursuant to s 47(1)(b) of the Act, in order to ensure that the custodial options available to Mr Coulter pending trial can be further clarified, and any order of the court made on the next mention of this matter is better informed as to the practical alternatives which may be available.

1. I should add that I accept that in principle the Act contemplates use of imprisonment as a last resort in cases where the issue of fitness to be tried is properly raised.

1. In summary, I will reserve the question of Mr Coulter's fitness to be tried for investigation pursuant to the Act. I will direct that a report be obtained from those charged with his care at Port Phillip Prison. I will direct that a s 47 certificate as to available services be requested from the Secretary to the Department of Human Services, and I will remand Mr Coulter in custody in prison until 27 February 2013, on which day he will be brought back before the court for further mention of the matter.