Director of Public Prosecutions v Miller
[2023] VCC 2319
•1 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-20-01469 / CR-20-01474
CR-20-01470 / CR-20-01473
CR-23-01129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID MILLER |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November and 1 December 2023 | |
DATE OF DECISION: | 1 December 2023 | |
CASE MAY BE CITED AS: | DPP v Miller | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2319 | |
REASONS FOR DECISION
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Subject:CRIMINAL LAW.
Catchwords: Thirteen historical offences of indecent assault (penetrative offences) against seven victims in 1970’s and 1980’s by the accused, then a GP. Accused now aged 80 in cognitive decline, unfit to be tried and otherwise infirm. Accused found to have committed the offences after Special Hearings (SH). Multiple victims. Gross breach of trust. Profound victim impact. Time since offending and other factors mean low risk of re-offending. No services from Forensicare available or necessary.
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Cases Cited:Clarkson v The Queen [2011] VSCA 157; NOM v DPP [2012] VSCA 198.
Ruling: Released unconditionally under s 18(4)(b) of the CMIA, with order to take effect on 4 December 2023 (to allow movement to Aged Care Facility interstate). Suppression order lifted.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar (SH 1) Mr D Porceddu (SH 2) Ms A Moran (SH 3 & subsequent hearings) | Office of Public Prosecutions |
| For the Accused | Mr S Kenny | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Between the mid 1970’s and the mid 1980’s David Miller enjoyed a status very few could lay claim to in the small community of Bendigo. Not only was he the young, apparently popular general practitioner, he was a respected member of the local church.
2For years he exploited that position he held as a doctor and the access it gave him to young women to sexually violate his victims. He was predatory, prolific and persistent. It is hard to conceive of a graver breach of social trust reposed in an individual than that which has been demonstrated here.
3The trail of human wreckage he left behind is hard to comprehend. In these proceedings seven brave women who have suffered for close to four decades have been vindicated in that it has been proven that he did to them precisely what they allege.
4In those decades since he last offended though, Mr Miller has been diminished greatly. He is now 80. Aside from a litany of physical health issues that have manifested over time, he has been in progressive cognitive decline, to the point where in July 2023 (on the eve of the first day of the trials listed in this matter) by agreement between experts and legal representatives, he was found to be unfit to be tried under the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (‘CMIA’, or ‘the Act’)[1] — a decision I repeat was based on the unanimous expert opinions of eminently qualified mental health professionals as well as the informed and careful submissions by both the Crown and the accused. Moreover, his decline was such that he would never be fit to be tried.[2] He has remained in prison (where he has been since March 2021 — some two years and nine months or more than 1,000 days) until a final determination of this case has been made.
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) s 14E(b).
[2]Ibid s 14F(5). For a more detailed analysis of the issues at hand, see rulings that followed the fitness investigations on 18 January 2023 and 12 July 2023.
5Three Special Hearings, before consecutive juries were held for the purposes of determining whether he committed the fourteen offences alleged against him by seven complainants. He was found to have committed 13 out of the alleged 14 offences.
6Following these Special Hearings, I requested the relevant report pursuant to s 41(1) of the CMIA, and also sought a certificate of available services under s 47 of the same Act to determine whether or not Mr Miller ought to be liable to supervision (and if so, what form that supervision would take) or whether he ought to be released unconditionally.
7Now that I have received both the relevant reports and certificates (including updates) and having heard from the parties, Mr Miller will be released unconditionally under s 18(4)(b) of the Act.
8That order requires explanation so that all of those who have a clear interest in this matter and its outcome understand how and why that decision is arrived at.
The offending
Overview
9From 1974 to 1983 Mr Miller worked as a general practitioner out of a clinic in Bendigo. This is principally the location and context in which he offended. At the time of the offending, he was aged between 37 to 39 years of age.
10Between June 1976 and March 1983, he engaged in various (penetrative) sexual acts with his patients as young as six and as old as 39, under the pretence of providing medical treatment, to whom I will refer to as Victims 1, 2, 3, 4, 5 and 7. He also committed acts with a child in the home of one of his patients, of whom I will refer to as Victim 6. The allocation of numerals in substitute of the victims’ / survivors’ names follows their respective places on successive indictments.
11This case involved multiple affected women who are of course not just anonymous or faceless numbers or statistics. The Court and the parties are well aware of who each of them is and I have observed each of them give their evidence in the Special Hearings.
12The women in this case are to be referred to by number and any features of the case that might identify them have been excised from this ruling. It is for pragmatic reasons connected to the potential reporting of this matter that numbers were used rather than pseudonym orders (that can become confusing and cumbersome when dealing with multiple complainants as is the case here) or use of initials (which creates in my view the possibility of someone in the public identifying a victim).
13Mr Miller’s victims have suffered quite enough, through no fault of their own and I will not allow them to be further distressed or burdened by the possibility of strangers knowing what was done to them years ago against their will. Because of this, my recitation of the offending or the personal effects of the offending may be at times quite general or lack detail, and this is by design. It is to protect the privacy of the victims.
14Lest that be thought to be a swipe at the media, it is not. The media have had an obvious interest in this matter and have been commendably sensitive to the need for a suppression order for a period of time until the Special Hearings are over (to preserve the integrity of the following Special Hearings) as well the need to be particularly cautious in the ultimate way the matter is reported, given the sensitivity of the case, and the particular vulnerabilities of the victims. The same can be said of the way in which previous victims/survivors of Mr Miller have conducted themselves during these proceedings.
15I will deal with the offending in the order in which they were presented to successive juries in the Special Hearings.
Specifics of offending, including victim impact
Indictment C2013323A.1 (CR-20-01469 & CR-20-01474) – SH 1
Victim 1
16In 1977 Victim 1’s mother took her to see Dr Miller as he then was. She was between 10 and 11 years old at this time. She was taken there due to stains on her underwear. Her mother was present when the consultation occurred. Once inside the accused’s consultation room, Victim 1 was told by him to get on to the examination bed. She complied and lay there on her back.
17He placed his hand on her, and then inserted his finger into her vagina. He left his finger in this victim’s vagina for around one minute, moving it around. He then removed his finger from her vagina and said to the victim’s mother, ‘I couldn't find anything wrong; she needs to wipe herself properly.’ The jury found that this charge, Charge 1 – of indecent assault upon a girl under the age of 16 years had been committed. Implicit in this finding was that there was no medical reason or lawful excuse for him to do what he did.
18I have read Victim 1’s Victim and Family Member Report (VFMR)[3]. The accused’s offending has remained with her every day since it occurred. It has marred her life, and the anxiety she felt about the offending did not abate once she reported it in 2017. She continued to suffer, anxiety, depression, and suicidal ideation. She has been diagnosed with PTSD and has undergone years of therapy. She requires medication. What should be therapeutic and open experiences like going to the doctor for help are instead traumatic, stressful events, not least of all because she often feels trapped, confined and alone in those settings. The abuse has affected her relationship with her husband and other members of her family (two of whom also fell victim to Mr Miller’s predation). She endured an emotional rollercoaster in the lead up to the Special Hearing.
[3]Exhibit G.
19Victim 1 understandably wants Mr Miller to be imprisoned for life. Or at the very least, supervised with the very strictest of conditions without possibility of extended leave.
Victim 2
20Victim 2 was 18 or 19 in 1978 when she went to see Dr Miller. She went to see him for stress related matters. She attended the consulting room and laid on the bed to tell the doctor about the stress she was experiencing. She had previously used massage as a relaxation therapy for her stress.
21She is unable to say whether it was at this consultation or not, but Mr Miller spoke about progressive Christianity and referenced the bible. The patient herself describes herself as being raised in a strictly religious family. In her mind, Mr Miller presented as something of a modern healer.
22Mr Miller then began to massage her as he had previously, starting at her head and working his way down her body. He then began to rub her vagina, before he inserted his fingers into her vagina. He massaged the inside of her vagina until she reached orgasm. The jury found that this offence, Charge 2[4] – of indecent assault upon a female had been committed. No sensible argument could be made that this was any kind of healing, quite the reverse was the case in fact.
[4]He was acquitted of Charge 3, an allegation which was similar nature to the Charge 2, on the same victim.
23Disingenuously Mr Miller claimed he was administering a form of healing. This obviously was not true. The breach of trust is accentuated in this case by the extra layer of vulnerability of this complainant who had not only poor mental health but also a religious outlook that was exploited by the accused.
24Victim 2 describes him as both monstrous and evil in her VFMR.[5] They seem much apposite words. Such is the trauma caused to her in Mr Miller’s pursuit of his own sexual gratification, she cannot bear to read his name or see a photo of him. The offending has affected her relationship with her family, her physical health, her mental health and spiritual wellbeing. The effects of the abuse are ongoing. She too has PTSD, anxiety and depression, along with other issues. The exploitation of her faith is particularly egregious. She rightly and properly describes herself as a survivor of the evils of Mr Miller’s crimes. She has achieved so much in her personal and professional life to be extremely proud of. One cannot help but wonder what might have been had she not had to labour under the consequences of her abuse by the wolf in sheep’s clothing that was Dr Miller.
[5]Exhibit H.
Victim 3
25Victim 3 was a mother approaching her 40’s when she was offended against. In 1978 she attended the clinic for an appointment with the accused in relation to bladder issues she was experiencing.
26She requested that Dr Miller provide her with a referral to consult with a gynaecologist. He refused the request for a referral, instead telling her that he would treat her himself.
27At Mr Miller’s direction, the complainant then removed her undergarments and lay on her back. Without warning, the accused inserted his fingers into her vagina.
28With his fingers still inside her vagina, the accused instructed her to do some exercises under the pretence of medical treatment, telling her to ‘bare down’ on to his fingers and contract her womb area. Victim 3 had to repeat this two or three times, which caused her severe pain. The accused then removed his fingers from her vagina and instructed her to get off the bed. This event, being Charge 4 – indecent assault upon a female was found to be proven.
29The accused then stood behind her and manipulated her back with his hands. At this point, she observed that the accused’s penis was erect, as she could clearly see the outline of his penis through his suit pants. The accused then told her that she needed to make another appointment, which she duly did.
30Shortly after this incident, again in 1978, Victim 3 re-attended the clinic to see the accused for medical treatment. She again presented with the same symptoms as she had on the first consultation relating to her bladder, but the symptoms had now intensified.
31The complainant was again instructed to get onto the bed and remove her undergarments, which she did. The accused then inserted his fingers inside her vagina, as he did previously. He again told her to push down on his fingers but did not explain why he was doing this. On this occasion, the accused had his fingers inside her vagina for around five minutes, before he removed them. This charge, Charge 5 – indecent assault upon a female was also found to have been committed.
32The victim again observed that the accused’s penis was erect through the outline of his pants. She did not return to the accused for treatment after this and sought alternative assistance.
33Whatever veneer these episodes had of medical treatment was just that — a veneer. His obvious sexual arousal to what he was doing is damning, and the element of coercion exhibited by him in withholding a referral to a gynaecologist until he could violate her in this way is deeply concerning.
34Victim 3’s VFMR[6] tells simply, but eloquently the way which her encounters with Dr Miller eroded her trust in men, as well as eroding her own self confidence and sense of personal safety. Her relationships with others has suffered and she has suffered for over 40 years with the emotional pain of what he did to her. She feels tremendous relief that he has been found to have committed the offences charged and that this awful saga for her is close to coming to an end.
[6]Exhibit I.
Victim 4
35Victim 4 was aged between nine and 12 at the time of the offending occurring between 1977 to 1979. She attended a medical consultation with Dr Miller at his clinic, in relation to a skin issue she was having with her foot. This was her first consultation with the accused. It was her family GP.
36Victim 4 attended the appointment with her mother, and after waiting in the waiting room, they eventually went in to see Mr Miller in his consulting room. There, she explained her issues and showed him her foot. He instructed her to get up onto the bed, which she did.
37Once on the bed, Mr Miller drew the curtain around the bed, separating himself and his victim from the view of her mother. He told his young patient that she had a ‘papilloma’ on her foot. He then said, ‘We better check whether you have any other issues.’ For no medical reason, he removed her underwear and said, ‘I will check for any other symptoms.’
38He asked her to spread her legs, and then looked at her vagina for a short period of time. He then he inserted his fingers into her vagina. He moved his fingers around and fondled the inside her vagina, causing her to feel uncomfortable. This defilement went on for about a minute. The jury concluded that this act – Charge 6 of indecent assault upon a girl under the age of 16 years was proven.
39The accused told his victim to get dressed, which she did. He then pulled the curtain back from around the bed. He told the victim to get a pad for her foot and some wart cream to treat the issue. She obtained the cream and the pad and began the treatment.
40On a subsequent occasion, approximately six months after the first incident and again between 1977 and 1979 the same victim returned to see the Dr Miller once more, as the issue with her foot had not improved.
41She was treated in the same consulting room as on the earlier occasion. She went into the consulting room with the accused and her mother. She told her doctor that her foot had not improved.
42Dr Miller told her to get onto the bed which she did, and in anticipation of same brazen conduct he engaged in earlier, again drew the curtain around the bed, separating himself and his victim from the view of her mother. Once on the bed, he looked at her foot and told her it would take time to heal and that she should do the same thing again. Again, he said, ‘We better check elsewhere.’
43Dr Miller removed his young victim’s underwear and opened her legs. He then inserted his fingers into her vagina under the pretence of medical treatment, as he had done previously. Once his fingers were inside her vagina, he moved his fingers around for around a minute, before he removed them and told Victim 4 to get dressed. The conduct was represented by Charge 7, indecent assault upon a girl under the age of 16 years, which the jury found proven.
44Once she was dressed, Mr Miller pulled the curtain back from around the bed, revealing them to his victim's mother, who was still seated in the consulting room. He told this victim to continue with the original treatment to her foot.
45Victim 4’s VFMR[7] describes the confusion she felt when she was being offended against, thinking this must be somehow normal and when she realised it was not, she searched for reasons in her behaviour that might have caused Mr Miller to abuse her. Of course she was blameless. Every young woman he preyed upon was blameless. She was a child seeing her family doctor. But her self-examination as a child for her own cause or blame for this violation is heartbreaking. The same can be said of the confusion about how to deal with this issue with her mother (who was present at the time) and she has never been able to speak to her father about it.
[7]Exhibit J.
46She coped as best she could with the abuse but noticed that her trust in medical practitioners was severely compromised.
Victim 5
47Victim 5 was born in 1959 and was between 15 and 16 when she attended Dr Miller’s clinic. She attended as she was suffering from debilitating period pain. Her usual GP was not available and so she had the misfortune of seeing Mr Miller instead.
48Victim 5 attended with her mother and waited in the waiting room until she was called by Mr Miller and followed him into his consulting room, but her mother remained in the waiting room.
49Once inside the consulting room, Victim 5 proceeded to outline her symptoms to the accused. He told her needed to ‘examine her internally’ to make sure everything was ok. He asked her to remove her underwear. She complied and then got on to the examination bed.
50Victim 5 lay on the bed and spread her legs, and Mr Miller inserted two fingers into her vagina, again under the pretence of medical treatment. Whilst he was doing this, he used his other hand to palpate the lower part of her abdomen.
51Whilst he had his fingers inside her vagina, he looked at his teenage victim in a way that caused her to feel deeply uncomfortable. He continued this for a short time, before removing his fingers. The jury concluded that this offence, Charge 8 – indecent assault upon a girl under the age of 16 years had been committed.
52Victim 5 then dressed herself, while Dr Miller watched her as she put her clothes back on. She was given a prescription and returned to her mother in the waiting room. She told her mother that she had been internally examined by the accused which understandably caused some consternation on the part of her mother and they did not see him again.
53There is no Victim and Family Member Report filed with respect to Victim 5 and the above offending. I can and do infer she was damaged by her interaction with Mr Miller. There is presumption of harm to victims[8] in cases of this kind and there is no reason to think that this case would be any different in that regard.
Indictment C2013323B.2 (CR-20-01470 & CR-20-01473) – SH 2
[8]Clarkson v The Queen [2011] VSCA 157.
Victim 6
54Victim 6 was born in 1976 and was aged between five and six years old at the time the offences. Mr Miller was known to Victim 6 and her family from their time in Bendigo (through his position as a medical practitioner and his involvement at a local church).
55Between 1981 and 1983, Mr Miller indecently assaulted Victim 6 on two occasions in her home, while staying with her family in regional Victoria when travelling back to Bendigo from NSW, where he then resided.
56On one occasion when Mr Miller was staying the night, Victim 6 awoke and walked to the bed where Mr Miller was sleeping. He lifted the covers on the bed, and Victim 6 got into the bed next to him, lying on his right side. He then placed his hand down her underpants and onto her vagina. He went to sleep, and his hand remained there – his hand was cold.
57The second occasion occurred when Mr Miller was again staying overnight with the family. It was after dinner but before bedtime when Mr Miller was giving the children, that is, Victim 6’s siblings, shoulder rides up and down the hall, to the bedroom and back again.
58He dropped the children in their bedrooms before picking up another child to take them back to the loungeroom. When Mr Miller picked up Victim 6 and took her to a bedroom, he placed her on her back on the floor. He then placed his lips on the outside of her underwear directly over her vagina and blew a raspberry.
59He then said to her, ‘did that tickle?’ She did not respond. Mr Miller repeated his actions a second time, that is, placing his lips on the outside of her underwear, and blew another raspberry. Victim 6 jumped up and went and told her mother, who confronted Mr Miller and told him to get out, which he did.
60The jury found that both Charges 1 and 2, both of indecent assault of a person under 16, had been committed.
61There is no Victim and Family Member Report filed with respect to Victim 6 and the above offending. I make the same comments about the presumption of harm as I did with respect to Victim 5 here.
Indictment C2013323C (CR-23-01129) – SH 3
Victim 7
62Victim 7 was a family friend and patient of Mr Miller and was aged between 17 and 21 at the time of the offending from 1976 to 1981.
63Mr Miller was the doctor for Victim 7 and her family at the time, including her parents who had been introduced to Mr Miller and his wife by fellow parishioners and friends and no less than the local Reverend and his wife from the local church. Victim 7’s parents became friends of the Millers, outside of him being their family general practitioner.
64In April 1976, Victim 7’s mother passed away in the most tragic circumstances. Her father contacted Mr Miller about his concerns for his daughter’s health following the sad loss of her mother.
65Between 25 June 1976 and 24 of June 1977 when Victim 7 was 17, she was at the home of the Reverend and his wife. Mr Miller was contacted by the Reverend’s wife regarding some personal issues Victim 7 was having at the time.
66Mr Miller duly arrived at the Reverend’s home and picked Victim 7 up in his car. He drove her to a swimming pool carpark where, once in the carpark, he stopped the car.
67From the driver’s seat, with Victim 7 in the front passenger seat, Mr Miller started a conversation about Victim 7’s menstrual cycle. Mr Miller said she needed an internal examination, and he would do it there and then, because it would be easier for Victim 7 to have it done there, rather than in his surgery.
68He then leaned across and inserted two fingers into Victim 7’s vagina. He felt around inside her vagina before removing his fingers. He told Victim 7 that the examination was normal, and then drove her home. The jury found that this charge, Charge 1 – of indecent assault upon female had been committed.
69Mr Miller then began seeing Victim 7 at his medical clinic. On ten occasions between June 1976 and June 1981, Mr Miller told Victim 7 that she had a medical problem with her sexuality, asked her to masturbate herself, and inserted his fingers into her vagina.
70On each occasion Victim 7 attended the clinic, Mr Miller had her lay on a couch in the consulting room. While he stood next to her, he used his fingers to rub her clitoris. He then inserted his fingers into her vagina. This occurred on every occasion she attended his medical clinic for a consultation.
71Victim 7 continued to consult with Mr Miller as her general practitioner up until she turned 22 in 1981, the year she was married, and believed that Mr Miller was providing her with legitimate medical treatment throughout this time. She was embarrassed and scared by what he did to her, but thought she had to go through with it to get better and did not tell anyone at the time.
72Victim 7 later told another doctor of the events in the 1990’s, who had the view that they were totally inappropriate.
73The jury found that the 10 occasions, being Charge 2 – indecent assault upon female (representing a course of conduct), had all been committed.
74Between 25 June 1976 and 24 June 1981, Victim 7 babysat for the Reverend and his wife. On one occasion after babysitting in this period, the Reverend dropped Victim 7 back to her home where she lived with her father. Whilst getting changed into her pyjamas, Victim 7 saw a man at her bedroom window and told her father. It frightened her. Her father then called the police.
75The following night, Mr Miller attended the home of the Victim 7 and spoke with her father, telling him that he could ‘fix up’ Victim 7. Victim 7’s father then told his daughter that she had to go with Mr Miller.
76Mr Miller drove Victim 7 to his clinic, arriving at approximately 8 o'clock in the evening. He took her into the closed clinic via the back door. He then had Victim 7 lie on the examination couch, where he gave her an injection in her arm. This made her feel woozy (though under cross-examination did concede it relieved her anxiety to some extent). Mr Miller then started rubbing Victim 7’s clitoris, before he inserted his fingers into her vagina, moving them in and out. The jury found that this charge, Charge 3 of indecent assault upon female had been committed.
77Between June 1976 and June 1977, Victim 7 had been babysitting for Mr Miller and his wife at their house. She was staying overnight at their home.
78Upon arriving home after being out with his wife, Mr Miller went into the bedroom where Victim 7 had gone to sleep and woke her up. He began rubbing her clitoris, and then inserted his fingers into her vagina. The jury found that this charge, Charge 4 of indecent assault upon female had been committed.
79I have read Victim 7’s Victim Impact Statement Form (VISF).[9] I should note now that the level of Victim 7’s fragility was such that she required an intermediary and much support over two days simply to get through her evidence in the Special Hearing.
[9]Exhibit K.
80She describes that Mr Miller took her virginity. What he did to her made her feel ‘dirty, unclean and guilty’ and considers herself an ‘unacceptable part of society feeling different to everyone else’. She experienced the deepest form of betrayal by someone who she should have been able to trust, someone she thought was both a doctor and a friend. She has been unable to enjoy sex in her married life and feels that her children have suffered over the years due to her inability to parent them adequately.
81Victims 7’s husband, the father of her children also died tragically. Following the death of their father, Victim 7’s daughter describes the profound impact the accused’s offending has had on her mother and other children. In her VFMR,[10] she recalls many moments where she woke to the sounds of her mother self-harming, including cutting herself, banging herself against walls, overdosing on medication and creating blisters on her body.
[10]Exhibit L.
82Her daughter experiences daily challenges in providing support for her mother, including assistance with living tasks, multiple visits and phone calls to provide her with therapeutic support from health care professionals, family and friends. Further, Victim 7’s inability to work for a significant period of time has also caused her children to provide financial support by way of paying for rent and contributing to school costs including uniform and books.
83The accused’s offending has had a severe and profound impact on her quality of life. She continues to suffer from a schitzo-affective disorder (schizophrenia plus severe depression), a mental illness of which she fears she will endure for the rest of her life. She takes ongoing daily medication to treat her ongoing mental illness and continues to engage with local community mental health services seeing a psychiatrist on frequent occasion.
84In a letter supporting her VISF, Victim 7’s treating psychiatrist of over 15 years is of the opinion that Victim 7’s trauma through sexual assault has contributed greatly to her chronic and severe mental health problems. He describes that despite decades of psychological therapy, multiple admissions, a suicide attempt, and trials of multiple medications and treatments, Victim 7 is frequently triggered emotionally, feeling forever dirty with a crushing burden of guilt.
Concluding remarks
85I have had regard to the moving VFMRs.[11] Mr Miller engaged in the pretence of being a selfless, caring medical professional. This often meant his actions went unchallenged or unquestioned. What is more, he presented as a progressive man of faith, who was beyond reproach. The reality is he was something much darker and more sinister.
[11]Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) s 42.
86Rather than be known for healing and caring for those who needed him, the real legacy of Mr Miller is one of enduring and profound trauma, grief and incalculable damage. He subjected trusting, vulnerable young women to any number of violations in pursuit of his own sexual appetites and gratification. It is vile, unconscionable and deplorable offending with precious little (if anything) to mitigate it. I cannot condemn it enough.
Case history and diagnosis
87The accused has engaged in a pattern of similar behaviour against other young women, and has convictions from 1983 and 2007, for similar offending against other females who were his patients. The prosecution relied on his tendency to behave in a similar manner to show that he had a sexual interest in his female patients, and a willingness to act upon it, by digitally penetrating their vaginas, under the pretence of medical treatment, this has formed part of the Crown case.
88It appears all sexual offending ceased 40 years ago, in 1983 (the same year in which he was released from his first term of imprisonment and de-registered as a medical practitioner).[12]
[12]See report of Dr Ryan dated 23 June 2023 at [35], referred to during earlier fitness investigation.
89There are other offences that Mr Miller either pleaded guilty to or was found guilty of that occurred in 1977, 1979, 1980 and 1982.
90In December 1983, the indecent offending against one 13-year-old patient was dealt with by Judge Tolhurst after trial and he was sentenced to 15 months with a minimum term of 8 months.
91Later, in May 2007, before Judge Jenkins of this Court, he pleaded guilty to offences against three victims occurring 1977, 1979 and 1980. By then he was 63 and had not offended in more than 25 years. He was sentenced to three years imprisonment with six months to serve immediately and the balance suspended for two and a half years. He did not breach that suspended sentence.
92A further 16 years later, Mr Miller was interviewed with respect to these matters by police on 19 December 2013.
93Five years after this, in December 2018, police travelled to Mr Miller’s home in New South Wales for further interview. He declined to participate in that interview.
94Mr Miller was charged by police on 11 December 2019 and extradited from his home in NSW (where he ordinarily lived) to Victoria on 17 December 2019.
95On 6 November 2020, Mr Miller was committed for trial in the Magistrates' Court in Melbourne.
96On 5 February 2021, the matter was listed before His Honour Judge Higham in Melbourne on 19 February 2021. Mr Miller failed to appear at Court for his trial and a warrant for his arrest was issued and later executed in NSW on 9 March 2021 after which he was remanded in custody for the remainder of these proceedings.
97Because Mr Miller was in the process of cognitive decline, there was an initial investigation into Mr Miller’s fitness in late 2022. Dr Pandurangi and Dr Lofts furnished reports and gave evidence on the investigation before me. I determined in January 2023, he was fit to be tried, with the caveat that if the decline the experts spoke of continued, then the question of fitness could be revisited.[13]
[13]As the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) permits under s 9.
98Mr Miller did in fact decline and the issue of his fitness was indeed revisited. On 12 July 2023, the Court conducted an investigation into his fitness to stand trial. Dr Pandurangi and Dr Ryan both gave evidence on the investigation. Given the unanimity of the expert evidence and the joint submissions of both the prosecution and defence counsel, I determined that Mr Miller was not fit to stand trial and was not likely to become fit to stand trial within 12 months, if ever.
Consequences of finding on unfitness
99A finding that a person is not fit to stand trial, it ought to be noted, is no small matter. It is a finding supported by cogent expert evidence (supplemented by submissions by the barristers on both sides of the case) that the accused cannot meet even the most basic standards that the law requires them to have in order for them to receive a fair trial.
The Special Hearings
100Given his cognitive limitations, a series of Special Hearings were therefore required,[14] the purpose of which was to determine whether, on the evidence available, Mr Miller was not guilty of the offences charged or whether he committed the offence. There was no evidence he was mentally impaired at the relevant time of the offending.
[14]Ibid s 14.
101On 17 July 2023, the first Special Hearing took place – Indictment C2013323A.1 (CR-20-01469 & CR-20-01474). On 16 August 2023 the jury found that Mr Miller had committed seven of the eight offences that I have outlined earlier.
102On 21 August 2023 a second Special Hearing on Indictment C2013323B.2 (CR 20-01470 & CR-20-01473) took place. On 28 August 2023, the jury found all offences had been committed.
103On 30 August 2023 the Special Hearing took place regarding Indictment C2013323C (CR-23-01129). On 5 September 2023 the jury found that Mr Miller had committed all six offences.
Consequences of findings at Special Hearings
104I subsequently ordered the expert reports and certificate of available services[15] required of me to determine whether or not to declare Mr Miller liable to supervision or to order him to be released unconditionally.
[15]Ibid ss 41 and 47, respectively.
105This is because upon a finding that a person who is unfit to be tried has committed an offence, the matter does not proceed through the criminal justice system in the usual way.
106Had Mr Miller been fit to be tried and convicted of these charges by juries in a conventional trial, I add it is very likely I would have imposed a term of imprisonment upon him of such duration, it is very likely he would die in custody.
107That outcome is not open following a finding that an accused is unfit to be tried. The CMIA requires a decision to be made about that person's future in a different way, guided by the very specific principles (and by expert evidence) associated with any risk that a person may present if unsupervised in the community or otherwise.
The s 41 reports and s 47 certificates
108On 27 October 2023, the Court received a letter[16] enclosing a psychiatric report authored by Dr Edith Chau of the independent Forensic Psychiatric services in Victoria known as Forensicare. Accompanying that was the certificate of available services.[17] Dr Chau recommended that Mr Miller’s proceedings be adjourned to allow a place to be secured for Mr Miller in an aged care facility (ACF). By agreement, the matter was adjourned administratively to allow that to happen.
[16]Exhibit A.
[17]Exhibits B and C.
109The Court then received a further letter[18] enclosing an updated psychiatric report by Dr Chau dated 28 November 2023 and a further certificate of available services.[19]
[18]Exhibit D.
[19]Exhibits E and F.
110In that thorough and thoughtful report, Dr Chau notes Mr Miller’s cognitive impairment was contributed to by cardiovascular disease and to some extent alcohol abuse. He resides in what can be described as a supported environment at the Prison Hospital and is dependent on a four-wheel walker or wheelchair to move around. He has multiple co-morbidities because of his age including (but not limited to) cataracts and diabetes.
111His cognitive function has fluctuated, but he has consistent impairments in the domains of attention, delayed recall, mental flexibility and planning.
112She noted that despite the offending I have outlined above, his risk profile of sexual violence must now be considered low. I stress it is the risk he presents now that is the focus of these proceedings. He no longer has access to young female patients on account of his (now long ago) medical deregistration. His advancing age and medical frailty further decrease the risk.
113Dr Chau concludes at [31] and following:
Mr Miller is an 80-year-old man who has been incarcerated since early 2021 and is currently housed in St John’s Unit of PPP. Prior to his extradition, he was living alone in MoH accommodation but this accommodation is no longer available to him.
….
Mr Miller has a diagnosis of Mild Neurocognitive Disorder and problematic alcohol abuse. Whilst in the community in New South Wales, these diagnoses impacted significantly on his functional capacity, and he was deemed eligible to access residential aged care. More recently, no concerns have been raised about Mr Miller’s ability to live independently, however he now has no alternative accommodation available. Furthermore, his functional capacity has historically declined in the community in the context of being in a less supportive environment and having access to alcohol.
Mr Miller’s risk of sexual reoffending is low and this is further mitigated by his medical deregistration and his advanced age. The risk of opportunistic sexual reoffending might increase if Mr Miller was using alcohol as well as having access to an isolated female in close physical proximity. This risk would be mitigated if Mr Miller was residing in an Aged Care Facility (ACF).
Mr Miller has been accepted into (name) an ACF in New South Wales subject to the Court’s decision. A bed will be available on 30 November 2023 and can be held for a short time pending the Court’s decision. Transfer to this proposed placement would require the coordination of multiple stakeholders.
Given that Mr Miller’s risk of sexual reoffending is low and that accommodation within an ACF is available to him, I am satisfied that his risks are sufficiently mitigated. Consequently, I am of the opinion that Mr Miller would be suitable for unconditional release and respectfully recommend that the Court consider making such an order.
If the Court is minded to grant unconditional release, as outlined above, transfer arrangements (including the booking of a flight) cannot be made until after the Court’s decision is known. Consequently, if the Court was minded to make an unconditional release order on the return date, I would respectfully recommend that such order be made to take effect on Monday 4 December 2023. This would allow for Mr Miller to be released at a time when his transfer from prison to the ACF in New South Wales can be adequately coordinated, without the need to rely on crisis accommodation.
Legal framework
114Section 39 of the CMIA requires me to take a parsimonious approach. That is to say:
In deciding whether to make … a supervision order … the court 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.
115Further, under s 40 of the same Act, these are the matters that I need to and have taken into account:
(a) the nature of the person's mental impairment or other condition or disability;
(b) the relationship between the impairment, condition or disability and the offending;
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of their mental impairment;
(d) the need to protect people from such danger;
(e) whether there are adequate resources for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
116In the benchmark case of NOM,[20] the Court of Appeal observed that a supervision order is not a sentence nor is it punishment, but rather one of treatment. The Court said that a 'supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person's freedom and autonomy'.[21]
[20] NOM v DPP [2012] VSCA 198 (‘NOM’).
[21] Ibid at [68].
117The Court considered various remarks made during the parliamentary debates of the Bill to the Act, including the comment that, ‘No person should be deprived of his or her liberty unless it is absolutely necessary’.[22]
[22]Ibid.
118One can regularly see in the legal framework that applies to cases of this kind; notions of court-imposed punishment, condemnation, retribution, denunciation and general deterrence are all absent.
119Our justice system does not treat those who are so severely and profoundly cognitively impaired at the time of their trial in the same way as those who are of sound mind are treated.
Application of legal principles
120In this case, the unconditional release of Mr Miller follows from the evidence of his neurocognitive disorder and multiple medical comorbidities of which require ongoing support. These matters are referred to extensively by Dr Chau in the psychiatric report dated 26 October 2023 and again the conclusions of the same expert in a supplementary report dated 28 November 2023.
121There are no appropriate treatments or services which can be provided by Forensicare for Mr Miller’s supervision that would be required to supplement or augment the supports he requires or would receive in an appropriate ACF.[23]
[23]Exhibit C: Section 47 Certificate dated 27 October 2023; Exhibit F: Section 47 Certificate dated 29 November 2023.
122I note by way of addendum, Forensicare’s view is that even if no ACF could be found in Victoria or outside of it, it would not alter their opinion. He would still not be suitable for a supervision order of any kind.
123The process of locating and securing a suitable ACF for Mr Miller was the result of extensive consultation and co-ordination with relevant services, including those responsible for the transition of prisoners into the community.[24]
[24]Exhibit E: Section 41 Report of Dr Edith Chau dated 28 November 2023 at [16] and following.
124Finally, the prosecution accepts that Mr Miller should be released unconditionally.
125Given these findings, the position put before me by both the Crown and accused was that Mr Miller be released unconditionally. As I said, I will release Mr Miller unconditionally because both the evidence and the legal principles that apply to this case compel me to do so, not just because the parties agree that this is the correct legal outcome.
126I am acutely aware that this process and outcome will not likely reduce the victim’s grief, anger, sadness and anguish.
127I wish to stress that the outcome in this case is not, nor could it ever be, a measure of their suffering or reflective of the value that the Court places on their wellbeing. Their loss and pain are immeasurable.
128There are no appropriate treatments or services which can be provided by Forensicare for Mr Miller’s supervision that would be required to supplement or augment those supports that he is about to receive.
Conclusion and orders
129For the foregoing reasons I order that Mr Miller be released unconditionally pursuant to s 18(4)(b) of the CMIA. I will declare that this order takes effect as of 9.00 am on Monday, 4 December 2023, so that the arrangements for Mr Miller’s release and transfer can be managed and implemented in the way foreshadowed by Dr Chau in her reports and Forensicare’s correspondence with the Court.
Suppression
130I made a suppression order on 18 July 2023 in order to preserve the integrity of the successive trials from media coverage that may be hard for a jury to ignore. Now that all of the Special Hearings are concluded, the need for suppression no longer exists. I will therefore lift that suppression order previously imposed.
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