Director of Public Prosecutions v Rossiter
[2024] ACTSC 401
•16 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Rossiter |
Citation: | [2024] ACTSC 401 |
Hearing Date: | 12 December 2024 |
Decision Date: | 16 December 2024 |
Before: | McCallum CJ |
Decision: | (1) Being satisfied that there is a real and substantial question about the accused’s fitness to plead, I reserve the question for investigation under division 13.2 of the Crimes Act. (2) I stand the proceedings over to 28 January 2025 at 11am to hear any relevant evidence and submissions put to the court by the prosecution or the defence on the issue of the accused’s fitness to plead. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to Plead – where solicitor for the accused raises a question as to fitness to plead – where psychologist expresses opinion that the accused is not fit to plead – whether there is a real and substantial question about the accused’s fitness to plead – where prosecution contends psychologist’s report does not rebut the presumption of fitness – where prosecution raises a question as to the impartiality of the information provided to the psychologist – consideration of the nature of the Court’s task in determining whether to be satisfied that there is a real and substantial question about the accused’s fitness to plead |
Legislation Cited: | Crimes Act 1900 (ACT), ss 312, 313, 314, 315A Mental Health (Criminal Procedure) Act 1990 (NSW), s 10 |
Cases Cited: | Eastman v R [2000] HCA 29; 203 CLR 1 Kesavarajah v R [1994] HCA 41; 181 CLR 230 R v Ogawa [2009] QCA 307 R v Tier [2001] NSWCCA 53 |
Parties: | Director of Public Prosecutions ( Crown) John Henery Rossiter ( Accused) |
Representation: | Counsel S Saikal-Skea ( DPP) N Deakes ( Accused) |
| Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Accused) | |
File Number: | SCC 124 of 2024 |
McCALLUM CJ:
Introduction
1․John Rossiter is due to stand trial for historical sexual offences alleged to have been committed against his daughter over 50 years ago. Mr Rossiter is now aged 96.
2․The proceedings are listed for trial with a jury on 3 February 2025 with an estimate of five days. They were originally also listed for the hearing of a tendency evidence application in August 2024 and for a pre-trial hearing in November 2024. However, shortly before the date fixed for the tendency evidence application, the accused’s solicitor, Mr Deakes, became concerned as to the accused’s fitness to stand trial. The tendency application was accordingly adjourned by consent to enable Mr Deakes to obtain expert evidence as to his client’s fitness to plead.
3․Shortly before the date scheduled for the pre-trial hearing, the accused obtained a report from a forensic psychologist, Dr Luke Hatzipetrou, in which the opinion was expressed that the accused is not fit to plead. The pre-trial hearing was accordingly adjourned to enable that issue to be considered further.
Three-stage process for determining fitness to plead
4․In Kesavarajah v R [1994] HCA 41; 181 CLR 230, the High Court observed at 244 that it is “well established” that when the question arises, “it is the court’s duty to determine the accused’s fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry”. Those remarks were cited by Kirby J (albeit in dissent) in Eastman v R [2000] HCA 29; 203 CLR 1 at [282]. His Honour said:
I fully accept that, both by the statute applicable in the Australian Capital Territory and by the general law, the question of an accused person’s fitness to be tried is not one left exclusively to the parties. It is one in respect of which the court itself has responsibilities.
5․The Queensland Court of Appeal cited the decision in Eastman as authority for the same proposition (without a pinpoint reference) in R v Ogawa [2009] QCA 307 at [95] (Keane JA, Chesterman JA and Jones J agreeing at [213] and [214]):
It is an essential principle of our system of criminal justice that an accused person should not be put on trial for an offence unless he or she is fit to stand trial, ie to comprehend the course of the proceeding and to make a proper defence. It is for the trial judge to ensure that where a question arises as to the fitness of an accused to stand trial, that question is resolved before the trial proceeds: the onus in this regard is not upon the parties as adversaries but upon the court.
6․In view of those authorities, it may be taken to be beyond dispute that the question of fitness is not to be determined by an adversarial process. The capacity to comprehend the course of the proceedings is a fundamental requirement of a fair trial. Where properly raised, a question of fitness to plead accordingly falls within the responsibility of the presiding judge, regardless of any forensic judgment of the lawyers.
7․In the Territory, the issue of fitness to plead is governed by Part 13 of the Crimes Act 1900 (ACT). The starting point is that a person is presumed to be fit to plead: s 312(1). That presumption is rebuttable, but only in accordance with the provisions of the Act: s 312(2).
8․Where there is a basis for apprehending that a person may be unfit to plead, there are potentially three stages in the resolution of that question. First, the question must be raised, whether by a party or by the Court: s 313. Secondly, the question having been raised, the Court must follow one of the procedures set out in s 314, depending on the point at which the question is raised. In the present case, as the question was raised for the first time in this Court (as opposed to being raised in the Magistrates Court), this Court must make a determination as to whether it is satisfied that there is “a real and substantial question” about the defendant’s fitness to plead, in which case the Court must reserve the question for investigation under division 13.2 of the Act: s 314(3). Thirdly, if the Court reserves the question, the Court must proceed with an investigation under division 13.2.
9․The question of the accused’s fitness to plead was raised by Mr Deakes in court on 25 November 2024 by reference to Dr Luke Hatzipetrou’s report (and Mr Deakes’s own observations, which prompted him to obtain that report). However, no determination was made that day as to whether there is a real and substantial question about the defendant’s fitness to plead, as required under s 314(3). The proceedings came before me on 12 December 2024 for that purpose. The prosecution submitted that I should not be satisfied in those terms.
When is the question of a person’s fitness to plead a real and substantial question?
10․The provisions that apply in the Territory reflect the common law in respect of unfitness. In R v Tier [2001] NSWCCA 53, the NSW Court of Criminal Appeal found it “instructive” to look at the common law principles. That was a case in which, after a first trial that had run for seven weeks was aborted and a second trial was nearing the close of the Crown case, the accused was admitted to a psychiatric ward with severe depression. The legislation that applied in that case (the Mental Health (Criminal Procedure) Act 1990 (NSW)) provided in s 10(2):
The Court must not conduct an inquiry into the question of a person’s unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.
11․The trial judge was not satisfied that the question had been raised in good faith and did not proceed to conduct an inquiry into the question. His Honour stated:
I am not prepared to come to a conclusion on the balance of probabilities that the question of his fitness to be tried has been raised in good faith. It may be that Mr Tier is unfit to be tried. I say that would have to be a possibility. It is only a possibility. It is to my mind far from a probability.
12․The Court of Criminal Appeal held unanimously that the trial judge had taken a wrong approach to the threshold question. Sheller JA stated at [6]:
I do not understand how it could be said that, if there was a possibility that the appellant was unfit to be tried, the question of whether he was indeed unfit to be tried could be said not to have been raised in good faith. With due respect, this conclusion may have resulted from a misunderstanding of the expression “a real and substantial question”; see Eastman v The Queen (2000) 74 ALJR 915 paras 28, 66, 319 and 400.
13․Kirby J, who wrote the main judgment, noted at [85] that there was a substantial body of evidence that Mr Tier was, or may be, unfit to be tried and concluded that it was not open to the trial judge to impute an absence of good faith in the circumstances. His Honour also noted at [86] that the issue of unfitness was approached by the trial judge as “a contest between parties”, which was inappropriate. Kirby J had earlier explained at [58] that, the question of fitness being “fundamental”, it falls “outside the adversarial system”.
Dr Hatzipetrou’s report
14․The prosecution relied on two matters to support the contention that there is no real and substantial question raised in relation to fitness. First, it was submitted that the report of Dr Hatzipetrou is insufficient to rebut the presumption that the accused is fit to plead.
15․Dr Hatzipetrou expressed the following conclusion:
On the balance of the findings, Mr Rossiter would be markedly disadvantaged in trial proceedings as he would be unable to follow the course of a trial and as such, his ability to encode, store and then retrieve relevant information to form a defence and/or instruct counsel would be significantly impaired. As evidenced in the interviews, Mr Rossiter loses track of thought and forgets what he has actually stated and more so, the initial question. When confronted with legal arguments, Mr Rossiter does not appear to have the requisite cognitive and memory capacities to participate in court proceedings. Furthermore, he would experience marked difficulties providing reliable and coherent instructions to his counsel in a timely manner.
16․The prosecution submitted that Dr Hatzipetrou’s opinion should be rejected. In particular, it was submitted that he had applied an overly stringent test in respect of fitness. Detailed submissions were provided addressing the content of the report against the elements of the test for unfitness set out in s 311 of the Crimes Act.
17․The submission makes an important point. Just as lawyers are not doctors, and so should look to the medical profession for expert evidence as to an accused person’s mental state or cognitive capacity, doctors are not lawyers, and so cannot be expected to apply the Presser test as a lawyer would. A question of fitness to plead raises difficult questions that require integration of the two kinds of expertise.
18․For that reason, there may well be considerable force in the prosecution’s submissions. However, the detailed analysis set out in the prosecution submissions was, with respect, premature. The only question at this second stage of the process is whether I am satisfied that there is a real and substantial question about the accused’s fitness to plead. That is an undemanding test. In accordance with the principles discussed above, it requires only that the issue be one that has been raised in good faith and that is more than trivial. If I am satisfied that a real and substantial question has been raised, s 314(3) provides that I must reserve the question for investigation under division 13.2.
19․The second matter was the contention that there has been “overreliance” on information provided by the accused’s son, Peter Rossiter. Dr Hatzipetrou’s report discloses that Peter Rossiter answered the diagnostic questionnaire in respect of dementia on behalf of the accused. Other evidence suggests that he is not impartial on the issue of the allegations made by the complainant, his sister, against their father. A record of conversation between Peter Rossiter and police reveals, in short, that he has made a sceptical assessment of his sister’s allegations, notwithstanding an apparent admission made to him by the accused.
20․Again, while there may be much force in those concerns, it is premature to consider them at the present stage of the process. The only question at this point is whether I am satisfied that there is a real and substantial question about the accused’s fitness to plead.
21․Even if Peter Rossiter is motivated to protect his father, it does not follow that no real and substantial question as to fitness to plead is raised. As a matter of logic, both propositions might be true. Furthermore, the principles discussed in Tier make plain that I should not approach this issue as a contest between the parties. As stated in Tier at [55], “an accused person must be in a position to comprehend the course of proceedings, so as to make a proper defence”.
22․The evidence I have before me includes a report from a psychologist recording his opinion that the accused is unfit to plead. There is no proper basis for thinking that opinion was not reached in good faith, even if it was informed by information provided by Peter Rossiter. For that matter, I could not conclude on the evidence before me that Peter Rossiter did not act in good faith, even if he disbelieves his sister’s allegations.
23․I also have an affidavit sworn by Mr Deakes recording his own concerns as to the accused’s fitness based on conversations he has had with the accused. As noted in Tier at [72], it is ordinarily to be accepted that an issue raised by a legal representative has been raised in good faith. In the present case, there is absolutely no basis for doubting Mr Deakes’s good faith in raising the issue. Mr Deakes was careful to qualify his reliance on his own observations by reference to the fact that the accused resides in Queensland and has not yet travelled to Canberra to give instructions in the proceedings. Mr Deakes has only been able to speak to his client by a video link. This was an unsatisfactory process because, leaving aside any cognitive issue, Mr Rossiter has a hearing impairment. The unsatisfactory nature of Mr Deakes’s communications with his client is all the more reason for reserving the question of fitness for investigation.
24․For those reasons, I am satisfied that there is a real and substantial question about the accused’s fitness to plead.
Practical considerations
25․As already noted, the trial is currently listed for 3 February 2025. The prosecution is understandably concerned to hold onto the trial date. The interests of the complainant must be taken into account in determining the path forward. Given the nature of the potential fitness issue and the age of the accused, the trial should proceed on the current date if it possibly can. It is unclear what further evidence the accused might adduce on the issue of his fitness to plead. The prosecution has indicated that it does not propose to obtain a separate report because it takes the view that Dr Hatzipetrou’s report does not rebut the presumption of fitness. I am not presently persuaded that it is in the interests of justice to take any of the steps allowed under s 315A(1)(b) of the Crimes Act. It follows that the issue of fitness may fall to be determined by reference only to Dr Hatzipetrou’s report, Mr Deakes’ affidavit and any further evidence the accused may adduce.
26․In the circumstances, subject to any further application by either party, the course I propose is to adjourn the issue of fitness to be heard by me on 28 January 2025 with a view to determining that issue in advance of the trial date.
Orders
27․For those reasons, I make the following orders:
(1)Being satisfied that there is a real and substantial question about the accused’s fitness to plead, I reserve the question for investigation under division 13.2 of the Crimes Act.
(2)I stand the proceedings over to 28 January 2025 at 11am to hear any relevant evidence and submissions put to the court by the prosecution or the defence on the issue of the accused’s fitness to plead.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate Date: 16 December 2024 |
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