Director of Public Prosecutions v Hanns
[2024] VCC 451
•6 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02714
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYAN RUSSELL HANNS |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATES OF HEARINGS: | 12, 13, 16, 17, 18, 19, 20, 23, 25, 26, 27 October 2023; 13 February 2024 | |
DATE OF DECISION: | 6 March 2024 | |
CASE MAY BE CITED AS: | DPP v Hanns | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 451 | |
REASONS FOR JUDGMENT
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Subject:SPECIAL HEARING
Catchwords: CMIA – dangerous driving causing death – collision with cyclist – no criminal record – progressive supranuclear palsy – bipolar affective disorder – disregard advice from doctor not to drive – in nursing home – full-time care needs.
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:
Sentence: Unconditional release
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Y Hardjadibrata | Director of Public Prosecutions |
| For the Accused | S Gardner | Docherty Legal |
HIS HONOUR:
1Bryan Russell Hanns, on 27 October 2023, at a special hearing, a jury found you to have committed the offence of dangerous driving causing death. This is a finding made pursuant to s17 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, (“the Act”).
2In very brief compass, the facts giving rise to the charge you were found to have committed are that on 12 November 2020, at about 8 am, you were driving your Ford Ranger utility east on the Lascelles-Sea Lake Road, Sea Lake, in north-western Victoria. As you were driving, you collided with the rear of a bike ridden by Dennis Cox. As a result, Mr Cox was killed at the scene of the collision.
3The collision occurred on a flat, straight, two-way road that was wide enough for two vehicles travelling in opposite directions to pass each other safely. There was no centre line marking. The speed limit was 100 kilometres per hour and at the time of the collision there was no other traffic. The road was dry, it was daylight and visibility was good.
4An accident reconstructionist determined that at the time of the collision both passenger side wheels of your car were approximately 1.28 metres on the gravel shoulder, and Mr Cox was on the bitumen road, approximately .37 metres from its edge. Your driver’s side headlight struck the rear of Mr Cox’s bike.
5Police investigation excluded as possible causes of the collision speed, drugs, alcohol, use of mobile phone, weather conditions, road conditions, and mechanical fault.
6At the time of the collision you were 57 years of age and suffering multiple physical and mental health conditions. You were receiving regular medication and treatment from your general practitioner, from a psychiatrist, and from a respiratory and sleep specialist.
7You had been advised by your medical practitioners and others not to drive.
8On 20 October 2020 you and your psychiatrist, Dr Reddy, completed and co-signed a pro-forma VicRoads psychiatric report. In his report, Dr Reddy stated that your medical condition and treatment had an effect on your ability to drive and that you should not drive pending a driving test and review by an occupational therapist. You had received similar advice from others concerning your driving and the operating of farm machinery.
9On 12 November 2020 you participated in an interview with police. During that interview you said you could remember hitting Mr Cox but you did not recall seeing him until the actual collision. You were not able to explain why you were driving on the gravel shoulder.
10You were charged with the offence of culpable driving causing death and, in the alternative, the offence of dangerous driving causing death.
11On 11 September 2023 I found you unfit to be tried and directed that the charges proceed by way of Special Hearing under the Act.
12I found you unfit on the basis of reports tendered from neuropsychologist Dr Amanda Nielsen dated 20 June 2023, neuropsychologist Dr Linda Borg, dated 6 April 2023, oral evidence of Dr Nielsen at the fitness hearing, and the submissions of prosecuting and defence counsel.
13Dr Nielsen considered you unfit to be tried on the basis of the criteria set out in s6(1)(a), (d) and (e) of the Act. Dr Borg considered you unfit to be tried on the basis of the criteria set out in s6(1)(b), (c), (d), (e) and (f) of the Act.
14More particularly, Dr Nielsen said that you were able to understand the purpose of the assessment and had an understanding of your legal situation. You were able to follow the course of the assessment, understand questions put to you and provide clear and comprehensible responses. However, you demonstrated unreliable ability to recall information provided to you, and a severely curtailed ability to sustain attention beyond 30 to 45 minutes, accompanied by severe fatigue. This, she said, is likely to be closely associated with your very slowed information processing speed.
15Dr Borg stated that compared to her 2022 assessment, you have continued to demonstrate decline in key subcortical and frontal domains, contributing to greater unreliability in high order attention, further slowing to processing speed as well as worsening of impulsive and disorganised tendencies. The contributors to your cognitive and behavioural profile were likely multifactorial in nature. On brain imaging, basal ganglia abnormality had been found, with progressive supranuclear palsy (PSP) and Parkinson’s disease representing the most common basal ganglia disorders. The basal ganglia’s role is in the regulation of emotions, mood, motivation and cognition, as well as the key brain circuitry that stems from this region. Disruption to attentional systems, slowed mentation, apathy and disinhibition can be anticipated. Based on the DSM-V diagnostic criteria, your neuropsychological profile is considered multifactorial in nature, whereby you exhibit a major neurocognitive disorder due to PSP, an acquired brain injury, as well as bipolar affective disorder.
16Both doctors did not consider that you would become fit to be tried within a 12-month period.
17By the time of the fitness hearing you had been diagnosed with the degenerative condition of progressive supranuclear palsy. A report from neurologist, Dr Richard Peppard, who made the diagnosis in June 2022, stated that PSP is an unusual but well-defined neurodegenerative condition. It includes cognitive changes with the slowing of mental processing, depression, and short-term memory loss. It was Dr Peppard’s opinion that the condition had progressed in your case to such a severe level that your life expectancy would likely be under two years and very likely under three years.
18Mr Elwood, who then appeared for the Director of Public Prosecutions, and Mr Gardner, your counsel, each submitted that you were unfit to be tried. Based on the evidence presented to me, I accepted their submissions.
19Accordingly, and as you were unlikely to become fit within the following 12 months, I directed that there be a special hearing.
20Following the special hearing, a jury returned a verdict of not guilty on the charge of culpable driving causing death but found that you committed the offence of dangerous driving causing death.
21By its verdict, the jury must have found that your driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured and that your driving caused the death of Mr Cox.
22At the conclusion of the special hearing I directed that a report be obtained pursuant to s 40 of the Act. Since that time, I have received a psychological report prepared by Jacqui Brown, clinical psychologist, dated 4 January 2024, as well as a number of Statements from the family of Mr Cox, which I will address later in these reasons.
23Ms Brown prepared a comprehensive psychological report and risk assessment.
24Amongst her qualifications, Ms Brown has a master’s degree in clinical psychology and has received additional training in the area of forensic risk assessment. She has extensive experience in the provision of risk assessments and the preparation of psychological reports.
25In order to prepare her report, Ms Brown spoke with you on 19 December 2023 at the Sea Lake Nursing Home. She also consulted a number of key stakeholders including the Director of Nursing at the Nursing Home, nurses, a support worker employed at the home, and your partner Lisa Stacey. She was also provided with the reports of Dr Nielsen, Dr Borg, a transcript of the special hearing proceedings, several reports of Dr Peppard, a letter from an occupational therapist, as well as many other reports that are referred to in her psychological report.
26Ms Brown reviewed your personal history. She noted that at the age of 16, you left school to work on the family farm near the town of Sea Lake. You took over the management of the farm following your father’s death when you were aged 30.
27You have three children from an earlier relationship that ended in 2007.
28You met Ms Stacey in 2009.
29You were involved in various local community activities throughout your life. You played football with the local team and remained involved as a coach after you ceased playing.
30In 2019 you were diagnosed with bipolar affective disorder after demonstrating a period of mania over the preceding months. You required hospital admissions and were treated by mental health services. In 2022, as I stated, you were diagnosed with PSP.
31Prior to the incident with which I am concerned, you had not ever been in trouble with the police. You did not have a criminal history. However, following the incident, you were placed on bail, a condition of which was that you were not drive a motor vehicle or any farm machinery on public or private land. You breached your bail when you were caught driving a four-wheel farm buggy.
32You are currently a resident of the Sea Lake Nursing Home. It was there that Ms Brown assessed you. Ms Brown had difficulty hearing and understanding you, accordingly Ms Stacey remained present for the assessment.
33Ms Brown states you appeared psychomotor depressed and she considered that your neurodegenerative condition likely impacted your movement. Your speech, at times, was barely above a whisper.
34Ms Brown was forced to cease the assessment before it could be concluded because you were tiring significantly, and she was having considerable difficulty hearing you. A decision was made to cease the interview and gather relevant information from collateral sources, which she did.
35A registered nurse at the Sea Lake Nursing Home informed Ms Brown that you had been there for approximately 12 months and over that time there had been a definite deterioration in your presentation. You are, she was informed, confined to a wheelchair and are no longer independent with toileting. You have difficulty with communication resulting in agitation and some verbal aggression, and difficulty swallowing.
36A support worker with whom Ms Brown spoke also noted that you appear to have declined over the past months with your conversations “jump(ing) all over the place”.
37Ms Brown stated:
“Precipitating the index offence in 2019, Mr Hanns began to demonstrate more overt psychiatric symptoms, including a period of mania resulting in hospitalisation. This was followed shortly after by the emergence of neurological symptoms that were suggestive of a Parkinsonian syndrome. These symptoms likely presented as very challenging to Mr Hanns and … multiple factors in his life began to be impacted.”
38Ms Brown also noted that since you first involvement in the forensic system, you have suffered a significant deterioration in your cognitive and physical health, resulting in you having a shortened life expectancy due to PSP. Given your state of health you are unlikely to ever return home.
39In Ms Brown’s opinion, your situation is somewhat unique in regard to risk. In addition to you having no history of offending before the incident before me, the health symptoms you now suffer make it extremely difficult, if not impossible, for you to reoffend in a similar manner as you do not have capacity to get into a motor vehicle. It is Ms Brown’s opinion that your risk of reoffending in any way is low.
40Ms Brown was confident in providing a diagnosis of major neurocognitive disorder (moderate) with behavioural disturbance, due to PSP. She was hesitant in making a definitive diagnosis of bipolar disorder as she could not explore this fully with you because of your neurological symptoms.
41Ms Brown states that you are significantly impacted by the PSP. You are unable to undertake employment, engage fully in social communication or facilitate your own self-care. You have experienced significant cognitive decline since you were assessed by Dr Borg. You are unable to walk and require support for all transfers, toileting, and communication. You are now fully dependant on others for self-care. Whilst noting the potential impact on the family of the deceased, Ms Brown considers there does not appear to be any particular benefit in the imposition of a forensic order. The risk of reoffending is unlikely to be impacted with oversight of disability justice.
Family Statements
42I have received a number of statements from the family of Mr Cox, as well as a statement from a friend of Mr Cox. These set out in detail the emotional impact your conduct has had upon them. Dennis Cox was a highly respected police officer and member of the community of Sea Lake. He was a much loved and respected husband, father and family member. He was a friend to so many others. His sudden and unexpected death has had, understandably, a devastating effect on the lives of his family, friends, and community.
43His wife, Selina, with a great deal of courage, read her statement in open court. She states that since the day her husband was killed, her life, and that of their three children, has “been a turmoil of stress, grief, anger and hurt.” Mrs Cox spoke of her heartbreak in her knowing that their children will grow up missing out on the sharing their lives and important events with their father. The death of her husband has also had a significant financial impact given he was the main income earner. The family lived in a police residence, from which they have now moved to a home some 45 minutes from Sea Lake.
44Mr Cox’s brother, Phillip, also read his statement in court. Phillip Cox states that the offence you committed has been profound and has affected his physical and mental health and well-being. He states that the death of his brother “has ripped the heart and soul out of our family”. He wrote and read a moving poem in tribute to his brother and the impact of his death on his family, friends, and community. Phillip Cox is of the “strong belief that a strict supervision order needs to be” imposed.
45I have also received and read a statement from Mr Cox’s daughter Shauna Cox. It is clear from her statement, and this is a theme raised in a number of the statements, that living in a small community, where there is a high chance of contact with you, has its own special problems. She too has been heartbroken by her father’s death.
46Hannah Cox, also Mr Cox’s daughter, states that she has suffered from “major anxiety” as a result of her father’s death who, in her words, was her world and best friend. She constantly thinks of her future without her father being a part of it.
47Henry and Nola Cox, the parents of Mr Cox, speak of having been robbed of a gentle, kind soul who served, with great dedication, as the town’s only policeman. Their lives have been “shattered”.
48Mr Cox’s sister, Paula, states that she and her family have been grappling with profound and enduring sorrow. The family, she states, is a very close-knit family who were in regular contact with each other. Their lives have been “up-ended”. Paula states that the Sea Lake community also mourns the loss of a beloved local figure, who was born in Sea Lake, went to school in Sea Lake, played and coached in local sports, and later returned to the town as the local police officer.
49Tania Spagnolo, also a sister of Mr Cox, speaks of the profound impact that her brother’s death has had upon her and her family. His absence, she writes, has left a void that words cannot adequately describe. She asks that the Court consider their immense grief and that I impose a supervision order with strict conditions.
50I have read each of the statements tendered on behalf of the family, including that of family friend, Bruce Reeves. I have not set them out in full, nor do I profess to have done them justice in these reasons, but the statements well articulate the immense love for Dennis Cox, the high respect in which he was held, and the impact his tragic death has had upon each of them and the community of Sea Lake generally.
Consideration
51As stated, the jury at the special hearing found, pursuant to s17(1)(c), that you committed the offence of dangerous driving causing death. Pursuant to s18, a finding under s17(1)(c) constitutes a qualified finding of guilt. It does not constitute a basis in law for any conviction for the offence to which the finding relates.
52Pursuant to s18(4), I am required either to declare that you are liable to supervision under part 5 of the Act or order your release unconditionally.
53Section 39 requires that in deciding whether to make a supervision order I must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. Section 40 sets out the matters to which I am required to have regard in deciding whether or not to make a supervision order. These considerations include:
(a) the nature of the persons mental impairment or other conditional disabilities;
(b) the relationship between the impairment, condition or disability and the offending conduct;
(c) whether the person is or would if released be likely to endanger themselves, another person, or other people generally because of his or her mental impairments;
(d) the need to protect people from such danger;
(e) whether there are adequate resources available for the treatment and support of the person in the community;
(f) any other matter the court thinks relevant.
54By virtue of s40(2) I am precluded from releasing a person unconditionally unless I have obtained and considered the report of at least one registered medical practitioner or registered psychologist who has personally examined the person on the person’s mental condition and the possible effect of the proposed order on the person’s behaviour.
55I received such a report from Ms Brown which sets out the nature of your mental condition and disabilities. It is clear that you suffer from significant disabilities.
56Your defence was not based on you being mentally impaired at the time of the collision and so the relationship between your current impairments and the offending conduct is not entirely clear. However, I do note that Dr Peppard considered it likely that you were suffering PSP at the time of the collision, although it had not then been diagnosed.
57Having regard to the expert evidence, I do not consider that it is likely that if released, you will endanger yourself, or another person by reason of your mental impairment, condition, or disability. Accordingly, it follows that there is no need to protect people from such danger.
58Regarding there being adequate resources available for your treatment and support, I am satisfied that such resources are available whether it be at your current nursing home or at another. It is likely you will see out your days in a nursing home.
59I have considered the report of Ms Brown as it relates to your mental condition and the possible effect of the proposed order on your behaviour.
60I am required to apply the provisions of the CMIA. Section 39 mandates that I must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. On the state of the evidence, there no basis at law which would enable me to impose a supervision order, notwithstanding the wishes of Mr Cox’s family. Having regard to the evidence, I consider that the only alternative open is that you be released unconditionally pursuant to s18(4)(b) of the Act.
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