DPP v Reese (a pseudonym)
[2020] VCC 1670
•19 OCTOBER 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
DIRECTOR OF PUBLIC PROSECUTIONS
v
KIRK REESE (a pseudonym)
JUDGE: HER HONOUR JUDGE CHAMBERS
WHERE HELD: MELBOURNE
DATE OF HEARING: 16 OCTOBER 2020
DATE OF RULING: 19 OCTOBER 2020 (on the papers)
CASE MAY BE CITED AS: DPP v Reese (a pseudonym)
MEDIUM NEUTRAL CITATION: [2020] VCC 1670
REASONS FOR RULING
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Catchwords: Criminal law – application for judge alone fitness investigation and special hearing – Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – accused unfit to be tried – consent of both parties to judge alone special hearing – interests of justice – delay – unfit young accused awaiting trial – no complex or contentious issues – application for judge alone special hearing granted.
APPEARANCES:Counsel Solicitors
For the DPP Mr L Cameron Ms Abbey Hogan,
Solicitor for Public Prosecutions
For the accused Ms A Brennan Ms Melissa Chung, VLA
HER HONOUR:
This is an application made on behalf of the accused for a judge alone fitness investigation and special hearing pursuant to Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the CMIA’). The application is not opposed by the prosecution. It remains for the court to determine if it is in the interests of justice to grant the application for a judge alone special hearing.
The CMIA was temporarily amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (‘the Omnibus Act’) in response to the COVID-19 pandemic. Relevantly, the Omnibus Act amended s 92 of the CMIA to provide for a person’s fitness to stand trial to be determined by the court, overriding the previous requirement in s 7(3)(b) that the question of fitness was one to be determined by a jury empanelled for that purpose. Given the express language of s 92 of the CMIA, no leave is required for the fitness investigation to proceed by judge alone.
The prosecution has filed an indictment comprising charges for the following State offences in relation to the accused:
(a)Sexual activity directed at another person – charges 1, 4 and 5;
(b)Sexual assault – charges 2 and 8;
(c)Common assault – charges, 3, 6 and 7; and
(d)Assault with intent to commit a sexual offence – charge 9.
On 5 October 2020, the court reserved the question of Mr Reese’s[1] fitness to stand trial pursuant to s 9 of the CMIA.
[1] ‘A pseudonym’
On 16 October 2020, I heard evidence from Dr Katherine Tan, Psychiatry Registrar, Forensicare at the fitness investigation. The report of Dr Tan and Dr Evrard Harris dated 28 September 2020 was tendered in evidence,[2] as was the report of Dr Prashant Pandurangi, Consultant Forensic Psychiatrist dated 2 June 2020.[3] At the conclusion of the fitness investigation, I found that the accused was not fit to stand trial on the State offences pursuant to s 94 of the CMIA and determined he is not likely to become fit to stand trial within the next 12 months pursuant to s 93(5)(a) of the CMIA.
[2] Exhibit 1 in the fitness investigation.
[3] Exhibit 2 in the fitness investigation.
Having found the accused unfit to be tried, I heard oral submissions expanding on the written submissions filed by both parties in relation to the application for a judge alone special hearing. At the conclusion of those submissions, I announced that I would order that the special hearing proceed before a judge alone pursuant to s 101 of the CMIA, for reasons to be published. These are my reasons for finding the accused unfit to be tried and for granting the application for a judge alone special hearing.
Background
The accused was born in 2000 and is now aged 20 years. He has a longstanding history of complex cognitive limitations and behavioural problems. He has been diagnosed with global intellectual delay, with a full-scale IQ of 50, autism, attention deficit hyperactivity disorder, mild cerebral palsy and slow transit bowel syndrome. In addition, the accused is profoundly deaf, non-verbal and communicates by rudimentary sign language.
The accused was born in Victoria and lived with his mother until the age of 12 years. He was then the subject of child protection orders placing him under the guardianship of the Secretary of the Department of Health and Human Services (‘DHHS’) and thereafter lived in DHHS residential care in the community.
In April 2019, as President of the Children’s Court, I found the accused unfit to stand trial under Part 5A of the CMIA. Following a special hearing, I found the accused not guilty of sexual assault and false imprisonment by reason of mental impairment and, on 6 February 2020, ordered that he be subject to a non-custodial supervision order that operated to 27 July 2020.
The accused was remanded in custody on 7 February 2020, initially at the Melbourne Assessment Prison and then in the Marlborough Unit at Port Phillip Prison. On 1 June 2020 he was transferred to the Disability Forensic Assessment and Treatment Service pursuant to s 166 of the Disability Act 2006.
The charges before this court arise from five separate incidents in 2019 and early 2020 whilst the accused was living in DHHS residential community housing, at two locations. The incidents giving rise to the charges against the accused can be summarised as follows:
·attending at the front of a neighbour’s house on 23 June 2019, exposing his penis, his buttocks and then masturbating in the front of a neighbour, a female adult;
·leaving his residential address and walking to a nearby park reserve on 6 July 2019, where he followed two women, making kissing noises towards them while pointing at his penis before running up to one of the women, a 17-year-old female, grabbing her in a bear hug and touching her vagina over her clothing;
·entering the office of the residential unit on 31 December 2019, exposing his genitals and masturbating in front of an adult male residential worker before swinging a 1.5 kg dumbbell at him and then smashing the computer monitor and the door of the office;
·pulling his pants down and masturbating in front of the male residential care worker in the lounge area of the residential unit on 1 January 2020 before throwing a bottle at him; spitting at him and continuing to do so when the residential care worker left the unit to walk out to his car, before throwing a glass at him and throwing a rock at his car; and
·approaching the window of the office in the residential unit on 7 February 2020 where a female residential worker had locked herself in for protection, pulling his pants down to expose his erect penis before unlocking the office door and entering. After entering the office, he pushed the residential care worker against the wall and grabbed her breasts with both hands. He then dragged the residential care worker down the stairs and into the overnight staff room. He tried to force her onto the mattress before pulling his pants down, exposing his erect penis and masturbating in her direction. He then tried to remove her pants and grabbed at the waistband of her underwear, pulling them down to her hips. As he did so, he held his head next to her groin, with his tongue out, while he continued to masturbate.
Evidence at the Fitness Investigation
Forensicare was requested to provide an expert psychiatric report regarding the accused’s fitness to stand trial by the Director of Public Prosecutions. That assessment was undertaken by Dr Katherine Tan, under the supervision of Dr Evrard Harris, who both interviewed the accused on 24 August 2020 and 15 September 2020 by audio visual link, with the assistance of interpreters.
Dr Pandurangi had previously assessed the accused for the Children’s Court Clinic in March 2019. On behalf of the accused, Dr Pandurangi provided an updated report dated 2 June 2020, conducting a further assessment of him on 28 February 2020.
The reports of both experts refer to the earlier assessment of the accused by Ms Jane Lofthouse, clinical neuropsychologist, whose report dated 21 December 2018 stated:
“[O]n a test of general intellectual function, his composite score, of Full Scale Intelligence Quotient, was 50, which is a score that falls within the extremely low range … [his]capacity to draw on verbal information such as giving the definition of common words, reading and writing simple words, recalling factual knowledge, attending to and remembering verbal information and understanding the rule of wider social behaviour was significantly and globally depressed”.[4]
[4] Report of Dr Tan and Dr Harris, Forensicare dated 28 September 2020, Exhibit 1, paragraph 31.
Both expert reports refer to the accused’s previous diagnoses of intellectual disability, autism, attention deficit hyperactivity disorder, in addition to being profoundly deaf and having mild cerebral palsy. Although he was not formally re-assessed for the purposes of these proceedings, Dr Tan and Dr Harris opine that the accused presented in a manner consistent with these previous findings, stating:
“Based on my assessment and information from other sources, he appears to have significant impairments in language, communication, intellectual function and interpersonal relationships.”[5]
[5] Ibid, paragraph 38.
The three forensic psychiatric experts are uniformly of the opinion that the accused is unfit to stand trial because of his underlying intellectual disability and autism and that these are both permanent conditions. In their respective submissions, both the prosecution and defence accept that the accused is unfit to stand trial.
Fitness to stand trial
The criteria that apply in determining whether a person is unfit to stand trial are set out in s 6 of the CMIA:
6 When is a person unfit to stand trial?
(1)A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some stage during the trial, will be-
(a) unable to understand the nature of the charge; or
(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d) unable to follow the course of the trial; or
(e) unable to understand the substantial effect of any of the evidence that may be given in support of the prosecution; or
(f) unable to give instruction to his or her legal practitioner.
According to the legislative scheme, a person will be unfit to stand trial if the court finds, on the balance of probabilities, that they are unable to meet any one, a combination or all of the criteria set out in s 6(1)of the CMIA.
In this case, the evidence that the accused is unfit to stand trial is overwhelming and uncontested:
(a)Understand the nature of the charge: Dr Tan’s evidence is that the accused is unable to identify his charges or the potential implications of the charges. Dr Pandurangi states the accused displayed limited understanding of the nature of the charges he is facing.
(b)Enter a plea to the charges and to exercise the right to challenge jurors or the jury: Dr Tan’s evidence is that the accused neither understands the nature of his charges or the roles of various parties within the court and therefore, could not enter a plea or exercise the right to challenge jurors. Dr Pandurangi states the accused has no concept of a jury, does not understand the various pleas available to him and could not rationally enter a plea.
(c)Understand the nature of a trial: Dr Tan’s evidence is that the accused has a very basic understanding that his behaviour is discussed in court but does not appear aware that this relates to his current charges. Dr Pandurangi states he is not satisfied the accused understands the nature and purpose of a trial and has no awareness of the roles of various members of the court.
(d)Follow the course of a trial: Dr Tan’s evidence is that the accused can follow simple parts of a conversation but becomes distracted or disengaged after about 30 minutes. In her opinion, he is not able to meaningfully follow or understand court proceedings. Dr Pandurangi states he would be unable to meaningfully understand or contribute to court proceedings, and accordingly would be unable to follow the course of a trial.
(e)Understand the substantial effect of any prosecution evidence: Dr Tan’s evidence is that the accused has limited capacity to meaningfully understand any evidence against him and cannot distinguish between the defence and prosecution. Dr Pandurangi states that he has no understanding of the evidence the prosecution has or will present against him and would be unlikely to meaningfully understand the effect of the evidence against him or provide a defence.
(f)Instruct a lawyer: Dr Tan’s evidence is that the accused does not appear to understand the role of his lawyer and would be unable to instruct his lawyer beyond expressing a preference to live “in the community”. Dr Pandurangi states that as the accused is unable to give a meaningful account of his version of the alleged events or respond to the allegations, he is unable to “meaningfully navigate” these issues to instruct a lawyer.
While there is evidence that the accused may, at a basic level, have some understanding of the nature of the charges he is facing, I not am satisfied he would have a meaningful comprehension of these matters to rationally enter a plea to the charges, or have the ability to follow the course of a trial in any sustained way. He would be unable to sensibly or rationally instruct his lawyers. Accordingly, I am satisfied on the balance of probabilities that he fails to meet any of the standards set out in s 6(1) of the CMIA and is therefore unfit to stand trial due to his impaired or disordered mental processes caused by his intellectual disability and autism.
All three forensic psychiatric experts are of the opinion that the accused’s intellectual disability and autism are permanent conditions. Further, the experts agree there are no interventions that would result in him becoming fit to stand trial within the next 12 months.
Having regard to the uncontested expert evidence, I determine on the balance of probabilities that the accused is unlikely to become fit to stand trial within the next 12 months: s 93(5)(a) of the CMIA. In these circumstances, the court must hold a special hearing as soon as practicable (but within 6 months) pursuant to s 95(6) of the CMIA.
Application for judge alone special hearing
The legislative framework introduced by the Omnibus Act provides for a special hearing to be conducted by a judge alone in the circumstances set out by s 101 of the CMIA, which provides, in part, as follows:
101 Court may order special hearing by judge alone
(1)At any time before the commencement of a special hearing, the court may order that the special hearing be conducted by the judge alone, without a jury, if –
(a)the offence for which the special hearing is to be conducted is an offence under the law of Victoria; and
(b)the court considers that it is in the interests of justice to make the order.
It is accepted that the offences with which the accused is charged are all Victorian offences and accordingly, the first limb of s 101(1)(a) of the CMIA is met.
Submissions of the parties
Detailed submissions were made on behalf of the accused in support of the application for a judge alone special hearing. It is submitted that it is in the interests of justice to make the order having regard to the following factors:
·the special hearing can be conducted swiftly and efficiently in circumstances where the defence accept there is no area of dispute about the facts upon which the charges are based and the legal issues are uncontentious;
·the defence do not require the complainants to give evidence and agree that the special hearing may fairly proceed by the prosecution calling the informant to give evidence of the facts giving rise to the charges;
·due to the COVID-19 pandemic there would be a significant delay before a special hearing could be held before a jury empanelled for that purpose and the Omnibus Act amendments to the CMIA clearly contemplate that fitness investigations and special hearings should continue despite the suspension of jury trials; and
·that it is in the interests of justice that those who are unfit to be tried have their matters determined as expeditiously as possible, to provide certainty for the accused, victims and the community and for the accused to progress to the therapeutic and supervisory pathways provided under the CMIA, particularly for a vulnerable young man with complex needs.
The prosecution provided comprehensive submissions in response which, in large part, adopt those made on behalf of the accused in favour of a judge alone special hearing. The prosecution further submit that it is in the interests of both the accused and the complainants that the proceedings be conducted expeditiously. Further, the prosecution submissions emphasise that by inserting Part 11 into the CMIA ‘Parliament evinced an intention that special hearings would continue to be conducted throughout the period of the emergency created by the pandemic if it were not possible to empanel a jury’.[6]
[6] Carson (a pseudonym) v The Queen [2020] VSCA 202, [60].
The prosecution submissions note that some of the charges require the consideration and application of community standards, particularly the charges where an element of the offence is whether the accused had a reasonable belief in consent. It is accepted that where a fact in issue involves a consideration of community standards, this tends in favour of a jury trial.[7] However, in the circumstances of this case, there is no dispute regarding this issue between the parties. This factor, the prosecution submits, significantly reduces the preferability of a jury considering the charges.
[7] R v Qaumi (No. 14) [2016] NSWSC 274; (2016) A Crim R 575, 584 [32].
Consideration
The question of whether it is in the interests of justice to make an order for trial by judge alone has been considered in the context of s 420D of the Criminal Procedure Act 2009. In DPP v Wang,[8] Justice Hollingworth endorsed the comments made by Chief Judge Kidd in DPP v Combo,[9] that the expression ‘interests of justice’ is broad and –
“… includes not only the interests of the parties, but also larger questions of public interest and policy considerations. The public interest includes ensuring the integrity and proper functioning of the criminal justice system within the courts, as well as ensuring that the accused receives a fair trial according to law”.
[8] DPP v Wang (Ruling No. 1) [2020] VSC 438, [5].
[9] DPP v Combo [2020] VCC 726, [48].
I consider that these observations apply equally when considering the expression ‘interests of justice’ in s 101 of the CMIA. Moreover, that when considering ‘the public interest and policy considerations’, these include the fact the legislature has evinced an intention that special hearings would continue to be conducted for persons found unfit for trial throughout the period impacted by the COVID-19 pandemic by introducing Part 11 of the CMIA and for the legislative timeframes of the CMIA to be met if it is not possible to empanel a jury.
In this case, the circumstances of the accused – a young man with complex needs and life-long impaired cognitive functioning – weigh heavily in favour of avoiding further delay. It is agreed that the delay until a jury could be empanelled would be substantial. This also means unacceptable delay attended by uncertainty for the multiple complainants in this matter. There is a public interest more broadly in determining CMIA matters expeditiously.
Moreover, there are a number of features of this case that minimise any prejudice to the accused by conducting a judge alone special hearing. The legal and factual issues are straightforward and uncontentious. The special hearing can be conducted swiftly and efficiently. Significantly, there is no dispute between the parties regarding the issue of reasonableness, reducing the desirability of a jury being empanelled to consider the application of community standards to those charges.
For these reasons, I am satisfied it is in the interests of justice to order that the special hearing be by judge alone. Pursuant to s 101 of the CMIA, I order that the charges against the accused in indictment C2013609 be the subject of a special hearing before a judge alone, without a jury.
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