Director of Public Prosecutions v Victors (a pseudonym) (No 3)

[2024] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Victors (a pseudonym) (No 3)

Citation: 

[2024] ACTSC 54

Hearing Date: 

1 March 2024

Decision Date: 

1 March 2024

Before:

McCallum CJ

Decision: 

(1)    I find the accused is unfit to plead.

(2)    I find the accused is unlikely to become fit to plead in the next 12 months.

(3) I find that the accused is incapable of making an election pursuant to s 316(2)(a)(i) of the Crimes Act 1900 (ACT) and there is no guardian who has the power to notify the Court under s 316(2)(b)(ii) of the Crimes Act. 

(4) I direct the ACAT to appoint a guardian with power to notify the Court under s 316(2)(b)(ii) of the Crimes Act, before the Court first fixes a date for the hearing, if the guardian is of the opinion that it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.

(5)    List the matter before the Registrar on Thursday 7 March 2024 at 9:00am for directions.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – FITNESS TO PLEAD – where accused has cognitive impairments due to brain disease and dementia – where parties in agreement that accused unfit to plead

Legislation Cited: 

Crimes Act 1900 (ACT), ss 311, 316(2)

Cases Cited: 

DPP v Victors (a pseudonym) (No 2) [2022] ACTSC 328

The Queen v Dennis Fisher [2011] ACTSC 56; 210 A Crim R 199

Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27

Parties: 

Director of Public Prosecutions

Dan Victors (a pseudonym) ( Accused)

Representation: 

Counsel

JL Jerome ( DPP)

J Pappas ( Accused)

Solicitors

ACT Director of Public Prosecutions

VG Law Group ( Accused)

File Number:

SCC 21 of 2021

McCALLUM CJ:       

1․Dan Victors (a pseudonym) is charged with 15 historical child sexual offences alleged to have been committed against his daughters in 1980 and 1988.  The accused was born in 1940 and so would have been in his forties when the offences are alleged to have been committed.  He is now aged 83 years. 

2․The proceedings come before the Court today to determine whether the accused is fit to plead.  This is the second such hearing.  The first was contested by the Director of Public Prosecutions and determined by Elkaim J on 1 December 2022: DPP v Victors (a pseudonym) (No 2) [2022] ACTSC 328. His Honour had before him medical reports from Dr Kulh, who expressed the opinion that Mr Victors was not fit to plead; Dr Susan Pulman, who expressed the opinion that he was; and Professor Brew, who also expressed the opinion that he was.

3․There was also evidence that the solicitor retained by Mr Victors to represent him in the criminal proceedings, Mr Taylor, had experienced difficulty in obtaining instructions from Mr Victors.  Justice Elkaim took the view that that evidence was unhelpful, saying at [29]:

With respect, I did not find the observations of Mr Taylor and his staff to be of particular assistance.  They are the personal opinions of laypersons.  I would have been more assisted by observations from laypersons who have had a good deal more regular contact with the respondent.  The notable absence is any oral or affidavit evidence from his wife.  I do, however, note that Mrs Victors did speak to Dr Kulh.

4․Based on the report of Professor Brew, his Honour drew the conclusion that no dementia was suffered by Mr Victors. He noted that Professor Brew conceded some cognitive impairment, but that Professor Brew had said it was not to an extent that would have an impact upon the capacity to plead, as defined in s 311 of the Crimes Act.  His Honour accordingly found Mr Victors fit to plead.

5․An appeal against that finding was successful: see Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27. The ground on which the appeal was upheld was ground 3, which complained that the primary judge was wrong to disregard or place no weight on the evidence of Mr Taylor as being personal opinions of laypersons. The Court said:

That was an inapposite description, not least because section 311(1)(b) lists as one of the six mandatory considerations for determination whether a person is unfit to plead because their mental processes are disordered or impaired to the extent that they cannot give instructions to their lawyer.

6․The Court, in that context, cited the decision of Refshauge AJ in The Queen v Dennis Fisher [2011] ACTSC 56; 210 A Crim R 199, at [29(12)], where his Honour in a careful summary of the relevant principles included the following proposition:

Relevant evidence may be available from support persons for the accused or from lawyers who had represented him or her in the past, identifying difficulties in taking instructions, providing advice or acting.

7․The Court accordingly allowed the appeal and remitted the question of fitness to plead to a judge of the Court.  That is the hearing upon which I embark today. 

8․Three notable changes have occurred since the first fitness hearing.  The first is the passage of a period of one year and three months, which is not insignificant in the case of a person with a diagnosis of dementia.  Secondly, there is before the Court today an additional opinion in a lengthy and careful report from Adjunct Professor Tuly Rosenfeld.  Thirdly, today, the question of fitness is not contested; that is to say, the Director of Public Prosecutions now accepts, based on the additional evidence before the Court, that, on the balance of probabilities, Mr Victors is unfit to plead.  The parties agree, however, that it is necessary for the Court to be satisfied of that proposition before taking the next steps provided for in the Crimes Act.

9․I have given careful consideration to Professor Rosenfeld's report.  It is neither necessary nor, indeed, appropriate (for reasons of privacy) to recite its contents in any great detail.  Mr Pappas, who appears for the accused, noted the same but relied on two conclusions expressed at page 12 of the report in the following terms:

Mr Victors suffers with a very significant brain disease that has resulted in organic pathology (disease) of his brain which is evident to a marked and very significant degree.  Based on my experience of viewing and interpreting the brain images of countless older people over 40 years in my clinical practice in medicine, the changes in the brain of Mr Victors are at the very much more significant extreme than many other patients of a similar age that I have seen.

10․Those conclusions were expressed by Professor Rosenfeld in a commentary section of a detailed passage of the report in which the professor reviewed all of the earlier material.  In his commentary, he noted where he either agreed or disagreed with a proposition in an earlier report.  Of particular significance is the very careful assessment Professor Rosenfeld has made of those parts of the earlier evidence in which medical practitioners expressed doubt as to the extent of dementia suffered by Mr Victors.

11․Professor Rosenfeld turned, at the conclusion of his report, to address the statutory test in s 311 of the Crimes Act.  That section provides:

(1)A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot—

(a)understand the nature of the charge; or

(b)enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c)understand that the proceeding is an inquiry about whether the person committed the offence; or

(d)follow the course of the proceeding; or

(e)understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f)give instructions to the person’s lawyer.

(2)A person is not unfit to plead only because the person is suffering from memory loss.

12․The professor's opinions as to those elements were as follows: first, he accepted that Mr Victors was able to understand the nature, notwithstanding his denial and dismissal, of those charges.  He said, however, that the accused’s understanding of the charges was adversely affected by his underlying brain disease, impaired insight, memory of the events and his, “insight plus dismissal of the accusers” coupled with beliefs and delusions about them.

13․As to his capacity to enter a plea to the charge and exercise the right to challenge the jury, while acknowledging a limited understanding of the right to challenge jurors, Professor Rosenfeld expressed the opinion that Mr Victors, as a result of his cognitive impairments due to brain disease and dementia, is unlikely to be able to enter a plea with the insight and understanding of implications in the process of challenging jurors.

14․As to his understanding that the proceeding is an enquiry about whether he committed the offence, Professor Rosenfeld accepted that Mr Victors did have that understanding.  However, he expressed grave reservations as to whether Mr Victors would be able to follow the course of the proceedings.  He said:

His understanding of the proceedings, testimonies, the witness accounts and cross-examination, and his impaired recall and understanding, clouded and confounded by his impaired reasoning, would not, in my view, enable Mr Victors to follow the course of the proceedings.

15․For the same reason, the professor indicated that Mr Victors would not be able to understand the substantial effect of any evidence that may be given in support of the prosecution or to give instructions to his lawyers.  On that last criterion, Professor Rosenfeld said:

The history is evidenced by difficulties with providing instruction to his lawyer and, notwithstanding the importance of this historical information, it is my view that even without this history, the clinical findings point, in my view, to his inability to properly do so and properly consider the options, alternatives and the implications of such decisions.

16․Based on all of those conclusions, Professor Rosenfeld's report plainly supports the conclusion that Mr Victors is not fit to plead.  In accordance with the requirement of the legislation for the court to consider whether a person is likely to become fit to plead within 12 months, Professor Rosenfeld was asked to address that question.  He said:

Mr Victors suffers with progressive and, ultimately, terminal medical problems that will invariably likely progress over the next one to 12 months and thereafter.

17․That last finding must be assessed in the context of another significant opinion expressed by Professor Rosenfeld which is that Mr Victors has a significantly shortened life expectancy as a result of his combination of medical conditions. 

18․The report is comprehensive and includes, as I have said, a careful analysis of the medical evidence previously available. On the strength of that material, I am satisfied within the terms of s 311 that the accused is unfit to plead.

Orders

19․Accordingly, I make the following orders:

(1)I find the accused is unfit to plead.

(2)I find the accused is unlikely to become fit to plead in the next 12 months.

(3)I find that the accused is incapable of making an election pursuant to s 316(2)(a)(i) of the Crimes Act 1900 (ACT) and there is no guardian who has the power to notify the Court under s 316(2)(b)(ii) of the Crimes Act.

(4)I direct the ACAT to appoint a guardian with power to notify the Court under s 316(2)(b)(ii) of the Crimes Act, before the Court first fixes a date for the hearing, if the guardian is of the opinion that it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.

(5)List the matter before the Registrar on Thursday 7 March 2024 at 9:00am for directions.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 17 April 2024