Director of Public Prosecutions v Jemal
[2019] VCC 1640
•9 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02000
Commonwealth Indictment
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERSOY JEMAL |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2019 | |
DATE OF DETERMINATION: | 9 October 2019 | |
CASE MAY BE CITED AS: | DPP v Jemal | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1640 | |
FITNESS TO BE TRIED & DETERMINATION
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K. Breckweg | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Ms J. Willard | Papa Hughes Lawyers |
HER HONOUR:
1 At a fitness investigation on 8 October 2019, a jury found Ersoy Jemal unfit to be tried in relation to a number of charges on Commonwealth Indictment No. CR-18-02000. The offending involved nine charges of attempting to dishonestly obtain a financial advantage by deception from the Commonwealth, contrary to ss 11.1(1) and 134.2(1) of the Criminal Code (Cth) and five charges of dishonestly obtain a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code (Cth).
2 Evidence was given by Dr Danny Sullivan, psychiatrist, and Dr Nathaniel Popp, neuropsychologist, in that investigation. Both also gave evidence that Mr Jemal would not be fit to be tried within 12 months of that fitness investigation. Their evidence was that Mr Jemal would be permanently unfit to stand trial.
3 I am satisfied, on the balance of probabilities, that Mr Jemal will not be fit to stand trial in the next 12 months (s20BA(4) and (5) Crimes Act 1914 (Cth)).
4 The consequences flowing from that determination are governed by Division 6 of Part 1B Crimes Act 1914 (Cth).
5 Section 20B(3) of the Crimes Act 1914 (Cth) provides that when a Court has found a person charged with a federal offence unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offences charged.
6 Section 20B(6) of the Crimes Act 1914 (Cth).provides that a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offences.
7 The Commonwealth provisions require establishment only of a prima facie case, which represents a much lower threshold for dealing with whether a person committed the offences charged than Victorian State legislation.
8 Under the Commonwealth regime determination of a person’s responsibility for the offences post a finding of unfitness, is to be determined by a judge and not an empanelled jury. Ms Willard for Mr Jemal agreed such was the correct procedure.
9 I turn to the evidence relied upon in support of a prima facie case.
10 In written submissions from Ms Breckweg for the Commonwealth (Exhibit B), she referred to authority relevant to this determination, R (Cth) v Sharrouf [No 2][1].
[1][2008] NSWSC 1450 (‘Sharrouf’).
11 In order to prove a prima facie case, what was required was two-fold. First, the evidence must be identified and, secondly, it must be capable of establishing a prima facie case by providing sufficient grounds to put Ersoy Jemal on trial for the offences charged.
12 The prosecution was able to achieve that in this case by the provision of a statement of facts (Exhibit B) and the brief of evidence that the Crown relied upon if proceeding as a trial. That material identified the elements of the offences allegedly committed by Mr Jemal, and included specific evidence going to establish those elements. Ms Breckweg also filed a Summary of Prosecution Opening (Exhibit A).
13 Ms Willard for Mr Jemal in her written submissions (Exhibit 1) and orally conceded the evidence referred to had the capacity to establish a prima facie case against Mr Jemal. Ms Willard also referred to Sharrouf in which the Court noted that evidence did not involve any view on the guilt or innocence of the accused, simply that the evidence was capable of providing sufficient grounds to put the accused on trial in relation to the offences charged. Such conceded by her.
14 In determining whether a prima facie case had been established, s20B(7) Crimes Act 1914 (Cth) provides that the accused may give evidence, make an unsworn statement, or raise any defence that could properly be raised if proceedings were a trial. No evidence was given, no statement made nor any defence raised.
15 I am satisfied there is a prima facie case based on the material before me.
16 I now turn to consider whether the charges should be dismissed.
17 In determining whether or not to dismiss the charges, s20BA(2) Crimes Act 1914 (Cth) applies. It states:
“(2)Where the court determines that there has been established a prima facie case that the person committed the offences, but the court is of the opinion, having regard to:
(a) the character, antecedents, age, health or mental condition of the person; or
(b) the extent (if any) to which the offence is of a trivial nature; or
(c) the extent (if any) to which the offence was committed under extenuating circumstances
that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.”
18 Ms Willard did not urge the charges be dismissed, nor did Ms Breckweg. I agree to dismiss the charges would not be appropriate.
19 In so determining I do not regard the offending as ‘trivial’ in nature, nor were there extenuating circumstances.
20 I am concerned as I discussed at some length with counsel Mr Jemal’s antecedents, including his prior criminal history in particular ‘similar type offending’ which occurred both pre motorcycle collision in September 2010 and offending post that collision (i.e. the charged dates before me). Mr Jemal’s offending is, in my opinion, serious.
21 I also note that whilst Dr Sullivan and Dr Popp addressed in evidence Mr Jemal’s fitness to stand trial at this current time, neither addressed his mental state at the time of this offending.
22 The transcript of the hearing on 9 October 2019 contains my discussion with counsel regarding Mr Jemal’s relevant prior and current offending.
23 Having determined it is not appropriate to dismiss the charges, I turn to consider other dispositions available to the Court.
24 I could make an Order for Mr Jemal’s detention in a hospital, should I be satisfied that Mr Jemal suffered from a mental illness, and his ability to be treated. Neither counsel urged I make such an Order. I agree such an Order would not be appropriate in all the circumstances.
25 I may also order Mr Jemal be detained in a place, other than a hospital, including a prison. Neither counsel urged I make such an Order. I discussed this in some detail with counsel. I ultimately agree such an Order should not be made having heard submissions from Ms Breckweg, endorsed by Ms Willard.
26 When assessing the objective gravity of Mr Jemal’s offending, Ms Breckweg conceded there was a significant delay between Mr Jemal’s offending and being charged. The prosecution conceded Mr Jemal’s offending was ‘clumsy’ and unsophisticated, including using his own name, and own phone number. That the statements lodged were in the ‘same terms’ and Ms Breckweg submitted with some surprise, this was not ‘picked up’ earlier by the Taxation Office. The offending by Mr Jemal did not, for example, involve setting up fake bank accounts. Mr Jemal’s current mental state based on the evidence given at fitness hearing was also she urged a relevant consideration.
27 Ms Breckweg submitted also, based on sentences previously imposed in similar cases, and involving similar charges, on balance an unconditional release would be appropriate in this case.
28 Ms Willard supported the prosecution submission and relied upon her written submissions (Exhibit 1), a recent Report of Dr Popp dated 8 October 2019 (Exhibit 2), correspondence from James Stevens, Legal Officer Supreme Court dated 7 October 2019 (Exhibit 3), correspondence from Dr Susan Ditchfield dated 15 August 2018, and the evidence given by both Dr Sullivan and Dr Popp on 8 October 2019.
29 Should I consider it appropriate, I can order the release of Mr Jemal absolutely or on condition for up to three years, pursuant to s20BC(5) Crimes Act 1914 (Cth). Neither counsel submitted I order the release of Mr Jemal absolutely. I agree such would not be appropriate in all the circumstances.
30 Having considered all material and evidence relevant to this determination I order the following:
31 Order pursuant to section 20(B) of the Crimes Act 1914 (Cth) the Court finds there is a prima facie case.
32 Order pursuant to section 20BA(4) of the Crimes Act 1914 (Cth) the Court finds that Ersoy Jemal will not be fit to be tried within 12 months.
33 Order pursuant to section 20BC(1) of the Crimes Act 1914 (Cth) the Court finds there is no treatment in a hospital appropriate for Ersoy Jemal.
34 The court has determined it is more appropriate to order the accused’s release than make an order under subsection 20BC(2).
35 The court orders the release of the accused under subsection 20BC(5) of the Crimes Act 1914 (Cth) with the following conditions:
36 (a) That the order is to continue for a period of three years; and
37 (b) That the accused is to attend upon Professor Saji Damodaran, Psychiatrist and/or his nominee for assessment and treatment as deemed appropriate by the nominated person.
38 The Order is to continue for a period of 3 years from today, 9 October 2019.
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