Director of Public Prosecutions v Fluder
[2021] VSC 301
•24 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0123
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| ERNEST FLUDER | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2021 |
DATE OF RULING: | 24 March 2021 |
DATE OF REVISED REASONS: | 2 June 2021 |
CASE MAY BE CITED AS: | DPP v Fluder |
MEDIUM NEUTRAL CITATION: | [2021] VSC 301 |
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CRIMINAL LAW — Murder — Accused, aged 85, charged with stabbing wife in chest and back — Accused suffering dementia, most likely Alzheimer’s disease — Whether accused fit to stand trial — Neuropsychiatrist and clinical psychologist both gave evidence that accused’s condition permanent and deteriorating further, not fit to stand trial — Accused found not fit to stand trial and unlikely to become fit within 12 months — Matter fixed for special hearing — Accused remanded in custody — Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 42K(2) and s 42M(1); Criminal Procedure Act 2009 (Vic) s 3 and s 330(3); COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) Part 3.7; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6, s 7, Part 11, s 92, s 93, s 94, s 95 and s 122.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Gibson | Victoria Legal Aid |
HIS HONOUR:
Overview
Ernest Fluder is charged with the murder of his wife Lucia (Lucy) Fluder between 20 and 21 November 2019 at their home in Hadfield. An indictment was filed in this Court on 26 June 2020.
The accused is 85 years old and suffers from dementia (most likely Alzheimer’s disease). His condition is permanent and deteriorating further with time. His trial has not yet commenced. Instead, because of his impaired mental state, an issue has arisen as to his fitness to stand trial and that question was reserved for investigation in accordance with the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the CMI Act’).
On 24 March 2021, the matter came before me for that purpose.
Having considered the relevant law, the evidence before the Court and the parties’ concurring submissions that the accused is not fit to stand trial, I gave ex tempore reasons for my finding that, beyond the balance of probabilities, the accused is not fit to stand trial and is not likely to become fit within the next 12 months. My reasons for that conclusion follow.
Accused’s attendance at hearing
At the commencement of the hearing Mr Gibson, counsel for the accused, indicated that Corrections staff were experiencing difficulties bringing the accused to the audio-visual room at Port Phillip Prison so that he could appear in Court. Mr Gibson had been advised that the accused was not well and that a medical certificate was being attended to. He also noted that, in any event, the accused would not be able to follow the proceedings and, accordingly, his presence was not essential for the practical running of the hearing. The matter was stood down and further enquiries were made.
Upon resuming, I was informed that the accused had not, at least in any formal sense, been certified as unfit or too unwell to attend the hearing. Mr Gibson reiterated that the accused would be unable to follow the proceeding. He submitted further that accused would find the process confusing and potentially distressing.
Legislative requirements for accused’s attendance at hearing
Section 42K(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) requires the physical attendance of an accused at court on, amongst other hearings, a fitness investigation. It reads as follows:
(2)Unless the court makes a direction under section 42M(1), an accused, other than a child, being held in custody who is required to appear, or be brought, before a court other than the Magistrates’ Court—
…
(b)on an inquiry into his or her fitness to stand trial; …
is required to appear, or be brought, physically before the court.
Section 42M(1) then permits a court to direct that an accused instead appear by audio visual link. That provision is in the following terms:
(1)A court may direct that an accused appear before it by audio visual link in a proceeding in which, by virtue of section 42JA(2) or 42K(2), physical appearance would otherwise be required if it is satisfied, on an application made in accordance with this section, that—
(a)appearance by audio visual link is consistent with the interests of justice; and
(b)is reasonably practicable in the circumstances.
In reliance on s 330(3) of the Criminal Procedure Act 2009 (Vic) (‘the CPA’), Mr Gibson made application for the accused to be excused from attending the hearing. Ms Ellis, who appeared for the prosecution, did not oppose that course.
The relevant parts of s 330 of the CPA read as follows:
When accused etc. is required to attend hearing
(1)An accused must attend a hearing in the criminal proceeding against the accused if—
(a)this Act or the rules of court require the attendance of the accused at the hearing; or
(b)the accused has been remanded in custody or granted bail to attend the hearing; or
(c)the court requires the attendance of the accused at the hearing.
…
(3) The court may excuse a person from attending a hearing.
Section 3 of the CPA defines “attend” as:
“attend”, in relation to a person, means—
(a)be physically present in court; or
(b)if authorised or required to do so under Division 2 or 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link…
Conclusion
Pursuant to s 42M(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), the accused had been authorised to appear by audio visual link. Section 42M is within Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). Accordingly, s 330(3) of the CPA authorises this Court to excuse a person from attending a hearing where s 42M would otherwise have required it.
Given the accused’s condition, the resulting difficulty that arose in transporting him to attend the hearing and agreement between the parties that proceeding in his absence was appropriate, pursuant to s 330(3) of the CPA, I excused the accused’s attendance from the hearing and proceeded with the fitness investigation.
Summary of background facts and allegations
The following summary of background facts and allegations against the accused are taken from the summary of prosecution opening filed in this matter, which sets out in considerable detail the alleged circumstances surrounding the death of the deceased.
On 21 November 2019, the deceased was discovered by her son Peter Fluder on the lounge room floor of her home in Hadfield (‘the Hadfield property’). The prosecution alleges that the deceased had been stabbed in the chest and back, and had sustained lacerations to her neck and left wrist. She was 76 years old at the time of her death.
Background
The accused and the deceased were both born in Austria, and had been married for 60 years. They had lived a normal and happy life, and were living together at the time of the deceased’s death. The accused and deceased had previously lived in New South Wales, and moved to Melbourne in mid-November 2019.
In the 18 to 24 months before her death, the deceased and Peter Fluder had discussed the apparent deterioration of the accused’s mental functioning. They had observed that the accused’s memory was declining and that day-to-day tasks were becoming challenging for him.
Approximately 12 months before her death, the deceased and Peter Fluder approached the accused and suggested relocating to Melbourne to be closer to Peter Fluder. The accused initially resisted the proposed relocation. The accused was also opposed seeking treatment for his deteriorating mental state.
The accused underwent a mini mental state examination (‘MMSE’) with his general practitioner in 2017. He scored 21 out of 30, indicating a mild cognitive impairment. He took the same test in 2018 and scored 20 out of 30, again indicating a mild cognitive impairment.
Approximately three months prior to her death, the deceased contacted Peter Fluder and said that the accused had agreed to relocate to Melbourne. On 12 November 2019, the deceased, the accused and Peter Fluder flew down to Melbourne to that end. The deceased and the accused stayed with their son until settlement of the purchase of the Hadfield property was effected. The accused and deceased took possession of the Hadfield property on 15 November 2019.
Boxes with new appliances were delivered to the Hadfield property on 19 November 2019. Peter Fluder assisted his parents with moving into their new home. Peter Fluder observed that both his parents seemed happy with the Hadfield property.
CCTV footage of the Hadfield property depicts the deceased and the accused together in the rear yard on 20 November 2019. The last footage depicting the deceased is at 19:21:29 on that date. The Crown case is that the CCTV footage depicts no other person entering or leaving the property after that time until the deceased is discovered by Peter Fluder on 21 November 2019. The Crown allege that phone records indicate that the deceased sent a text message to one of her friends on 20 November 2019 at 10:20 p.m.
Discovery of the deceased
On 21 November 2021, Peter Fluder attempted to call the deceased at around 9:15am. The deceased did not answer. Peter Fluder again attempted to call the deceased at 4:31pm and then 7:59pm. There was still no answer on either occasion. Peter Fluder then drove to the Hadfield property and, upon arrival, entered through the garage using his remote entry key.
The prosecution alleges that, upon entering the house, Peter Fluder immediately saw the deceased lying on the lounge room floor wrapped in a blue and brown rug. Peter Fluder called out to the accused and contacted triple-zero at 8:31pm to request police and ambulance attendance. Whilst on the phone to the police, he saw the accused walk down the stairs and peek down at him through the glass. Peter Fluder asked the accused a question, at which point the accused walked back upstairs. Peter Fluder remained on the phone to emergency services until police members Senior Constable Gray and Constable Jackson arrived at the scene at 8:41pm. He advised Senior Constable Gray that the accused was upstairs and that the accused suffered from dementia.
Senior Constable Gray then went upstairs and located the accused in the master bedroom removing his shirt. Senior Constable Gray returned downstairs and examined the deceased. Acting Sergeant Natoli arrived at the scene at 8:41pm, shortly after Senior Constable Gray and Constable Jackson. Acting Sergeant Natoli went upstairs and located the accused in bed. He attempted to caution the accused but the accused appeared confused.
Ambulance officers arrived at the scene at 8:48pm and examined the deceased. They observed dark blood surrounding the deceased’s head and a box cutter lying next to her with blood on it. The deceased had a large haematoma to the left side of her head. She also had multiple lacerations on her left forearm. She appeared pale and rigid and showed signs of obvious death, including post-mortem lividity and rigor mortis.
The accused was not arrested at this time and was permitted to go to Peter Fluder’s house. At approximately 9:30pm the Homicide Squad was notified of the incident and investigators attended the scene. Some of accused’s clothing was seized at the scene.
Crime scene examination
The deceased was examined at the scene by forensic pathologist Dr. Yeliena Baber. Apparent signs of trauma to the deceased’s body and head could not be used to conclusively establish a cause of death until a post mortem was conducted.
Leading Senior Constable Burns processed the crime scene at 10:45pm and made the following findings and observations:
(a) There was heavy blood staining on the front of the deceased’s clothing. The deceased’s t-shirt was damaged at the front;
(b) There was blood staining present on the deceased’s feet, neck, arms, hands, legs, tops of her feet, on a bandage on her left ankle and a large amount of blood staining on the left side of her head;
(c) There was blood staining in the immediate area around where the deceased was lying, on the left arm of a recliner chair and on a cardboard box;
(d) A blood stained hand towel was located in the ensuite off the master bedroom;
(e) A black plastic handle steak knife was found in a shopping basket near the front door of the residence. An orange handled box cutter was found in the lounge room;
(f) A bloodstained bath mat was found on top of an opened step ladder near the foot of the staircase, bloodstained tissues were found in the laundry and there were areas of blood staining in the bathroom situated under the stairs and in the kitchen.
Post mortem examination
On 22 November 2019 at 10:23 a.m., Dr Baber conducted a post mortem examination on the deceased’s body at the Victorian Institute of Forensic Medicine (‘VIFM’). Dr Baber determined the cause of death to be stab wounds to the chest. Dr Baber determined that two of the stab wounds that the deceased sustained would have each been fatal.
The deceased had also sustained stab wounds and lacerations to her torso, left forearm, head and face.
Arrest and charge
As a result of the post mortem finding, the accused was arrested at Peter Fluder’s home at 4:21pm on 22 November 2019 and conveyed to Melbourne West Police Complex. Police commenced a videotaped record of interview at 6:03pm. That interview was suspended at 6:09pm and police contacted VIFM requesting an examination of the accused to determine his fitness for interview.
At approximately 7:00pm, Dr Louisa Rositano from VIFM assessed the accused and determined him to be unfit for interview.
The accused was charged with murder on 22 November 2019. He has remained in custody since.
A sample of the accused’s DNA was obtained on 25 November 2019 at the Melbourne Custody Centre. A number of items seized from the Hadfield property were later subjected to DNA analysis. The deceased’s DNA was detected on the accused’s blood stained jumper, a blood stained towel from the master bedroom ensuite, a blood stained bath mat, blood stained tissues from the laundry and swabsticks from the laundry and the ground floor bathroom. A trace sample of the deceased’s DNA was found on the handle of the knife located near the front door. The accused’s DNA was detected on the blood stained towel from the master bedroom ensuite, the blood stained bath mat, some of the blood stained tissues in the laundry, the swabstick from the laundry and the blood stained blade of the knife located near the front door. A trace sample of the accused’s DNA was found on the handle of the knife located near the front door.
Legislation governing fitness investigation
A person is presumed to be fit to stand trial.[1] The presumption of fitness to stand trial is only rebutted if it is established that a person is unfit to stand trial.[2] Section 6 of the CMI Act then sets out when a person is unfit to stand trial. It reads as follows:
[1]Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997 (Vic) s 7(1).
[2]Ibid s 7(2)-(3).
(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.
The question of a person’s fitness to stand trial is ordinarily a question of fact to be determined on the balance of probabilities by a jury empanelled for that purpose.[3] However, in response to the COVID-19 pandemic, the legislature passed the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) which inserted a new Part 11 into the CMI Act.[4] Part 11 of the CMI Act supplements (and in some cases temporarily suspends) the existing provisions governing fitness to stand trial contained in Part 2.[5] Part 11 of the CMI Act is scheduled to sunset on 26 April 2021.[6]
[3]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(3).
[4]See Part 3.7 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
[5]See Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[6]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 122.
It is convenient at this point to set out some of the provisions of Part 11 that are relevant to this case:
92Question of a person’s fitness to stand trial
The question of a person’s fitness to stand trial is to be determined on the balance of probabilities by the court at an investigation into the fitness of the accused to stand trial.
Note
This overrides section 7(3)(b) which provides that the question is to be determined on the balance of probabilities by a jury empanelled for that purpose.
93Procedure on investigation
(1)Section 11 does not apply to an investigation into the fitness of an accused to stand trial. Instead, this section applies.
(2)At an investigation into the fitness of an accused to stand trial, the court—
(a)must hear any relevant evidence and submissions put to the court by the prosecution and the defence; and
(b)if of the opinion that it is in the interests of justice to do so, may—
(i)call evidence on its own motion; or
(ii)require the accused to undergo an examination by a registered medical practitioner or registered psychologist; or
(iii)require the results of any such examination to be put before the court.
(3)Nothing in subsection (2) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation and, for the purposes of Part 3.10 of that Act, the investigation is taken to be a criminal proceeding.
(4)Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if the investigation were a trial.
(5)If the court finds that the accused is not fit to stand trial, the court must—
(a)determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and
(b)if the court determines that the accused is likely to become fit within the next 12 months—specify the period by the end of which the accused is likely to be fit to stand trial.
(6)For the purposes of subsection (5), the court may call further evidence on its own motion.
94Findings of investigation into fitness to stand trial
At an investigation into the fitness of an accused to stand trial, the court may find—
(a)the accused is fit to stand trial; or
(b)the accused is not fit to stand trial.
95What happens after an investigation?
(1)Section 12 does not apply in relation to an investigation into the fitness of an accused to stand trial. Instead, this section applies.
(2)If the court finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures, including any modifications to those procedures made by or under the COVID-19 Omnibus (Emergency Measures) Act 2020.
(3)If the court finds that the accused is not fit to stand trial but determines that the accused is likely to become fit within the next 12 months, the court must adjourn the matter for the period specified under section 93(5)(b) and may—
(a)grant the accused bail; or
(b)subject to subsection (4), remand the accused in custody in an appropriate place for a specified period (not exceeding the period specified under section 93(5)(b)); or
(c)subject to subsection (5), remand the accused in custody in a prison for a specified period (not exceeding the period specified under section 93(5)(b)); or
(d)make any other order the judge thinks appropriate.
(4)The court must not remand an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(5)The court must not remand an accused in custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
(6)If the court finds that the accused is not fit to stand trial and determines that the accused is not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 as soon as practicable (but within 6 months) and may—
(a)either—
(i)grant the accused bail; or
(ii)subject to subsections (4) and (5), remand the accused in custody as described in subsection (3)(b) or (c); and
(b)make any other order the court thinks appropriate.
Because the question of fitness was raised by the accused, he carries the onus of rebutting the presumption of fitness.[7]
[7]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(4).
Pursuant to s 92 in Part 11 of the CMI Act, the investigation into whether on the balance of probabilities the accused was unfit to stand trial proceeded before me rather than a jury.[8]
[8]Ibid s 92.
Evidence
The accused was assessed:
(a) on behalf of the defence, by Professor Dennis Velakoulis, who is a consultant neuropsychiatrist; and
(b) on behalf of the prosecution, by Dr Joseph Sakdalan, who is a senior clinical psychologist at Forensicare.
I received in evidence a report from each expert witness. Professor Velakoulis’ report was dated 11 May 2020 and Dr Sakdalan’s report was dated 6 October 2020. Both witnesses also gave viva voce evidence on the hearing.
A second report authored by Professor Velakoulis dated 23 September 2020 had also been filed, but ultimately was not relied upon the hearing.
Professor Velakoulis
Professor Velakoulis assessed the accused on 27 April 2020. It appeared to him very early in his assessment that the accused had severe cognitive impairment and was unable to provide an account of himself or recent events in a consistent manner. His capacity to follow and understand questions or to conduct conversations during the course of the assessment was very limited. His answers to questions were often incoherent.
Professor Velakoulis concluded that the accused has dementia, most likely Alzheimer’s disease, and possibly with added vascular cognitive impairment also. To that end, he provided the following opinion in his report:
I note various assessments and observations of [the accused] after he was taken into custody which repeatedly document that he was confused, disoriented and unable to give an account of himself. The audio transcripts of [the accused] being interviewed similarly show that [the accused] is unable to follow interviews, unable to provide an account of his situation or understand his situation.
On the basis of my interview and the information available to me, [the accused] is severely impaired cognitively due to a likely diagnosis of Alzheimer’s disease and unable to participate in any legal proceedings.
…
In summary, having reviewed [the accused], the hospital information and brain imaging as well as other information provided by his son, it is likely that [the accused] has been developing a dementia over several years. The most likely explanation for his current mental state relates to a diagnosis of Alzheimer’s disease. I would note that on [a] CT scan he has marked generalised brain atrophy as well as sever and significant hippocampal atrophy. These would be consistent with advanced Alzheimer’s disease.
Both in his report and again in evidence on the hearing, Professor Velakoulis was asked to consider the criteria in s 6 of the CMI Act regarding a person’s unfitness to stand trial. He opined that, because of the accused’s cognitive impairment, all six criteria were established in this case.
Dr Sakdalan
Dr Sakdalan assessed the accused on 9 September 2020. He observed that, although alert and willing to engage in the interview, the accused was largely incoherent and was disoriented as to person, date, time and place. In Dr Sakdalan’s view, the accused was unable to participate meaningfully in the assessment of his fitness to stand trial due to severe cognitive impairment. He was unable to provide intelligible responses despite encouragement and support throughout the interview. Further, due to the severity of the accused’s cognitive impairment, Dr Sakdalan could not administer any screening tests or assess the accused’s fitness to stand trial in any formal way.
In his report, Dr Sakdalan referred to a fall the accused had on 27 November 2019 while in custody at Melbourne Assessment Prison, where he fell from his bed and suffered a serious head injury. Dr Sakdalan observed, by reference to the accused’s medical records provided for the purpose of the assessment, that the accused appears to have experienced rapid deterioration of his cognitive functioning following that fall. On 3 December 2019, the accused underwent a further MMSE and scored 6 out of 30, indicating a severe cognitive impairment where, previously, it had been mild. Dr Sakdalan also noted that a CT scan performed on 5 December 2019 showed a subdural haematoma and small vessel ischaemic change.
Dr Sakdalan provided the following opinion in his report:
[The accused’s] presentation and mental state indicate that he is unable to meaningfully engage in the interview and the assessment. Hence, it was not possible to formally assess his fitness to stand trial. Notwithstanding, [the accused’s] history, CT scan findings, and current presentation is consistent with a dementing condition most likely Alzheimer’s disease. Furthermore, [the accused] sustained serious head injuries which further compromised his cognitive functioning. [The accused’s] impaired mental state can be attributed to his dementia which was further aggravated by the head injury.
Like Professor Velakoulis, Dr Sakdalan concluded that the accused meets all six criteria set out in s 6 of the CMI Act so as to make him unfit to stand trial. Dr Sakdalan further observed that the accused’s condition is permanent and expected to deteriorate over time. Dr Sakdalan did not envision the accused becoming fit to stand trial within 12 months or in the foreseeable future.
Professor Velakoulis and Dr Sakdalan gave evidence on the hearing of this inquiry consistent with their reports.
Parties’ submissions
Both counsel for the accused and counsel for the prosecution submitted that based on the evidence before the Court it is open to the Court, on the balance of probabilities, to find that the accused is unfit to stand trial.
Conclusion
I accept the evidence of both Professor Velakoulis and Dr Sakdalan. The accused suffers from dementia, most likely Alzheimer’s disease. He is severely cognitively impaired. His condition is permanent and expected to deteriorate over time. As Dr Sakdalan observed, the accused’s fall on 27 November 2019 appears to have resulted in a head injury which has further compromised his already fragile mental state. Both Professor Velakoulis and Dr Sakdalan concluded that the accused meets all six criteria in s 6 of the CMI Act and that he is unfit to stand trial. The evidence from both experts in this matter was unambiguous.
In light of the very clear evidence before the Court, counsel for both parties jointly submitted that it was open to the Court, on the balance of probabilities, to find that the accused is unfit to stand trial. The evidence before the court was that there was no prospect of the accused becoming fit to stand trial in the future.
Having considered the expert evidence and having regard to the concurring submissions of the parties, at the conclusion of the hearing I found that, pursuant to ss 93(5)(a) and 94(b) of the CMI Act, I was satisfied beyond the balance of probabilities that the accused was not fit to stand trial and that he was not likely to become fit to stand trial within the next 12 months.
In those circumstances, pursuant to s 95(6) of the CMI Act, the Court must hold a special hearing as soon as practicable (but within 6 months). At the conclusion of the hearing, I fixed the special hearing to commence on 21 June 2021 for a period of seven days. Pursuant to ss 95(5) and 95(6)(a)(ii) of the CMI Act, I remanded the accused in custody in a prison until 21 June 2021 as I was satisfied that there was no practical alternative to doing so in the circumstances of the case.
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