GFS v The Queen
[2001] WASCA 219
•27 JULY 2001
GFS -v- THE QUEEN [2001] WASCA 219
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 219 | |
| THE FULL COURT (WA) | 27/07/2001 | ||
| Case No: | FUL:206/2000 | 17 MAY 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 17/05/01 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time for appealing Custody order quashed Order for release of appellant | ||
| PDF Version |
| Parties: | GFS THE QUEEN |
Catchwords: | Criminal law and procedure Appellant charged with 1 count of unlawful and indecent assault and 11 counts of rape Appellant mentally unfit to stand trial by reason of dementia Custody order made Psychiatric evidence that appellant presented no risk Criteria for making a custody order under Criminal Law (Mentally Impaired Defendants) Act 1996 Public interest did not require that appellant be held in custody |
Legislation: | Criminal Law (Mentally Impaired Defendants) Act 1996, s 19(5) |
Case References: | Pettitt v Dunkley [1971] 1 NSWLR 376 R v Birch (1990) 90 Cr App R 78 R v Donovan [1990] WAR 112 R v Gardiner (No 3) (2000) 24 SR (WA) 136 R v M (1996) 88 A Crim R 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GFS -v- THE QUEEN [2001] WASCA 219 CORAM : KENNEDY J
- WALLWORK J
STEYTLER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appellant charged with 1 count of unlawful and indecent assault and 11 counts of rape - Appellant mentally unfit to stand trial by reason of dementia - Custody order made - Psychiatric evidence that appellant presented no risk - Criteria for making a custody order under Criminal Law (Mentally Impaired Defendants) Act 1996 - Public interest did not require that appellant be held in custody
Legislation:
Criminal Law (Mentally Impaired Defendants) Act 1996, s 19(5)
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Result:
Extension of time for appealing
Custody order quashed
Order for release of appellant
Representation:
Counsel:
Appellant : Mr S J Browne
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Stephen Browne
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Pettitt v Dunkley [1971] 1 NSWLR 376
Case(s) also cited:
R v Birch (1990) 90 Cr App R 78
R v Donovan [1990] WAR 112
R v Gardiner (No 3) (2000) 24 SR (WA) 136
R v M (1996) 88 A Crim R 387
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1 KENNEDY J: The appellant came before a Judge of the Supreme Court on 5 December 2000 pursuant to Pt 3 of the Criminal Law (Mentally Impaired Defendants) Act 1996 ("the Act") in order to determine whether he was mentally fit to stand trial. He had been charged with 1 count of unlawful and indecent assault upon UF and 11 counts of raping UF, upon four of which he had been indicted jointly with his wife, JS, who is the mother of UF. The offences were alleged to have been committed between 1 August 1982 and 19 December 1983, when UF had been aged between 15 and 16. During this period, the appellant had been cohabiting with JS. He married her some time later.
2 If a defendant before the Supreme Court is found not to be mentally fit to stand trial, and the Judge is satisfied that the defendant will not become mentally fit to stand trial within six months after the finding that the defendant is not mentally fit, the Judge must make an order under s 19(4), that is, an order quashing the indictment, without deciding the guilt or otherwise of the defendant. The Judge is then required either to release the defendant or, subject to subs (5), to make a custody order in respect of the defendant.
3 Section 19(5) of the Act sets out the criteria for making a custody order. It provides as follows:
"A custody order must not be made in respect of a defendant unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to -
(a) the strength of the evidence against the defendant;
(b) the nature of the alleged offence and the alleged circumstances of its commission;
(c) the defendant's character, antecedents, age, health and mental condition; and
(d) the public interest."
4 By s 19(7), if an order is made under subs (4), the defendant may be indicted, or again indicted, and tried for the offence or offences.
5 The Crown prosecutor indicated to her Honour at the commencement of the proceedings that it would be appropriate for the appellant to be found to be mentally unfit to stand trial. Furthermore, the Crown initially
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- conceded that it would also be appropriate for her Honour to make an order releasing the appellant under s 19(4)(a) of the Act, although we were informed on the hearing of the appeal that counsel had no authority to make this concession.
6 Having considered a number of medical reports, her Honour indicated that, in relation to the appellant's fitness to stand trial, they all pointed in one direction. The appellant had first been diagnosed with dementia towards the end of 1997, the clinical assessment then being one of memory impairment. A CT scan revealed advanced cerebral atrophy. A nuclear scan showed widespread brain abnormality. Her Honour did not consider that, at the end of 1998, the applicant was unfit to stand trial, having regard to the demeanour which he had displayed in his videotaped interview by the police in February 1999, in which, she said, although there was some tendency to ramble and some vagueness, he did not, so far as the lay observer could discern, have substantial difficulties in comprehension or in memory. However, she added, the appellant's condition further deteriorated, with apparent rapidity at times, and the reports dated 25 May 2000 and 24 July 2000 of Dr P K Panegyres, a neurologist, indicated that the appellant had significant dementia, related possibly to alcohol abuse and to Alzheimer's disease. His memory and global cognitive functions were found to be particularly affected. A forensic psychiatrist, Dr A S Pullela, on 23 October 2000, reported that the appellant's impaired cognitive functioning, his poor concentration and varying levels of awareness would appear to indicate that his ability to comprehend the criminal process would be very limited.
7 Having regard to the evidence before her, her Honour found that the appellant was unfit to stand trial and that the nature of his illness, which is progressive and incurable, meant that he would never be fit to stand trial. Her Honour then proceeded to give consideration to whether a custody order should be made or an order for the appellant's release under subs (4) of s 19 of the Act. She therefore turned to a consideration of the criteria enunciated in subs (5).
8 In relation to the strength of the evidence against the appellant, her Honour took a view of the evidence which was rather different from that advanced by both counsel. In her opinion, there was nothing on the face of the transcript to cast doubt on the evidence which the complainant had given at the preliminary hearing and, from the transcript, the complainant was not shaken in the course of cross-examination as to her account of the events. Her Honour accepted that, on the evidence before her, the complainant had made one recent complaint shortly after she had left
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- home in December 1983 when she was aged 16-1/2 years and had perhaps made one or two other complaints subsequently. On her evidence it would clearly have been difficult for her to have made a complaint while she was living with her mother.
9 In the police videotaped interview with the appellant, in the course of which, as her Honour observed, he had a tendency to ramble at times and emphasised that he had difficulty in remembering details, the appellant said he thought he recalled, and later he positively recalled, having sex with the complainant on at least one occasion. Although he did not remember the details, he did claim to remember that the complainant was "playing up to him" and it appeared to her Honour that he was quick to claim that, at the time, she was 16 or possibly older.
10 Her Honour had regard to the fact that there was no corroboration and that it would appear to be an appropriate case for a Longman direction had the matter gone to trial, but she indicated that it appeared to her to be "a relatively strong Crown case". On that case, the offences were serious and represented a gross breach of trust.
11 Having regard to par (c) of s 19(5) of the Act, her Honour then went on to consider the appellant's character, antecedents, age, health and mental condition. The appellant had been born on 6 January 1939. He left school at the age of 15 or 16, at which time he commenced a carpentry apprenticeship. He completed his apprenticeship in 1960. Whilst completing his apprenticeship, he went to night school and undertook an estimating course. He then commenced employment with Taylor Woodrow as an estimator, and went on to become a manager at the age of about 26. He was involved in a number of major projects and, in particular, he was the construction manager for the Entertainment Centre, the Garden Island Bridge, the Warwick Shopping Centre and the Morley Shopping Centre. He lived in South Australia for a period of two years, during which time he was involved as the manager of the construction of the St Vincents Hospital project. He was later employed in the same industry by an American firm for a period of approximately two years. He commenced employment with Minproc Engineers Ltd in 1984, for whom he continued to work until he retired through sickness on 3 February 1997.
12 The appellant was married twice. His first marriage lasted for a period of approximately 17 years. There are two adult children of that marriage. As a result of the marriage breakdown, the appellant turned to alcohol and developed a problem which, however, he was ultimately able
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- to overcome. Indeed, he did not drink at all for a very considerable period. He formed a relationship with JS in 1980. He married her in November 1989 and that relationship continues. At the time of his appearing before the learned Judge at first instance, JS was remanded to a status conference on 11 December 2000. We were not advised as to what has since transpired in relation to her trial. At the time of the hearing of this appeal, however, JS was present in court and undertook to care for her husband as she had been doing in the past. Once in every five or six weeks, this Court was informed, the appellant was placed in the Anglican Respite Home in Kinross for a period of approximately one week, in order to give JS a break. On every Thursday from 10.00 am to 5.00 pm a carer from the Alzheimer's Association looked after the appellant in the family home to allow JS temporarily to be released from her caring duties.
13 The appellant had three convictions in the Court of Petty Sessions in Western Australia. They comprised a common assault in September 1980, for which he was placed on a one year good behaviour bond, driving under the influence of alcohol in September 1980, for which he was fined $300 and his motor driver's licence was suspended for 12 months (after three months, he was granted an extraordinary licence) and a contravention of arrows on a road in April 1988 for which he was fined $40. These convictions are of little consequence for the present purposes.
14 A number of medical reports were presented to the learned Judge at first instance. Dr R J Disspain, a psychiatric registrar at the Mental Health Unit in Joondalup, reported to the solicitor for the appellant on 4 May 1999 as follows:
"Over the previous two years, the main points of [the appellant's] neuropsychotic history would be -
(1) Diagnosis of 'cerebral atrophy and dementia' in 1997;
(2) Neuro-psychiatric assessment in 1998 which stated 'a global deterioration in cognitive functioning'. A Mini-Mental Test Score of 16/30 was noted also.
It is of note that both of [the appellant's] parents had Alzheimer's Disease, whilst the mother also had Parkinson's Disease.
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- Overall, the diagnosis from this admission was exacerbation of depression and suicidal ideation, secondary to an ongoing dementing process - possibly related to alcohol abuse.
With regards to your request for specific details -
Although by the time of discharge, [the appellant's] mood had improved substantially, he will almost undoubtedly continue to suffer various cognitive deficits (with eventual personality changes), and as a consequence I would expect worsening, recurrent periods of depression.
Given his former high level of functioning (as an international mining engineer) together with insight into his illness, the situation is highly likely to result in increasing distress for [the appellant].
Given the unrelenting nature of the dementing process resulting in deterioration of his cognitive functioning and particularly his memory loss and impairment, I would have thought that not only is [the appellant] currently incapable of pleading to the charges, but that this incapacity can only worsen. As such it is extremely unlikely, if not impossible, that [the appellant] would ever be able to plead in a Court of Law."
15 Dr M Tielmean, another psychiatric registrar at the Joondalup Health Campus, reported to the appellant's solicitors on 30 June 1999 as follows:
"Since the last report on the 04/05/1999, [the appellant] has had a further hospital admission in similar circumstances with worsening of depressive symptoms, suicidal ideation, and memory impairment of other intellectual functions.
Since his last admission, his condition had deteriorated further. Neuro-psychological testing revealed further drop in his global level of intelligence quotion. As a result, [the appellant] remains incapable of pleading to the present charges and as his illness has a progressive deteriorating course, it is unlikely that there would be any significant or sustained improvement to allow him to plead to the charges."
16 Dr M Tielmean reported to the solicitors again on 6 September 1999. He had observed a further deterioration in the appellant's condition. Dr Tielmean noted that neurological testing performed in May 1999 had
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- suggested an extremely low to borderline level of global functioning, which had declined markedly from the previous assessment in 1998. Especially impaired were his visuo-spacial functioning, immediate recall of information, and capacity to use rules and strategies in problem solving. This suggested that the underlying pathological process of his dementia was progressive. The dementing process related to his brain shrinking was associated with other signs suggesting organic pathology, including cerebellar atrophy associated with ocular signs, and at times unstable broad based gait and intermittent auditory and visual hallucinations.
17 A complicating factor in the appellant's condition was said to be his associated chronic depressive disorder, which had a fluctuating course, with periods of exacerbation when he became extremely hopeless and had recurrent suicidal thoughts. At times he had made significant suicidal attempts. This was related to the loss of roles due to declining memory and functional ability, and his insight into the irreversibility of the process. On his latest hospital admission, between 1 and 17 September 1999, which was precipitated by another suicidal gesture, the appellant had evidence of a progressive dementing illness, chronic depressive symptoms, associated anxiety symptoms, intermittent hallucinations, and problems with unsteadiness and co-ordination. His cognitive ability was significantly impaired. He was disoriented to time, including year, date and month. There was a persistent decline in his memory and his other cognitive abilities. His prognosis was described as being poor, as the condition was progressive and likely to deteriorate. The rate of decline was difficult to predict, but the deterioration over the past three years or so had been relatively rapid.
18 In a report dated 25 May 2000, Dr Panegyres indicated that the appellant had a dementing disease which was related possibly to the effects of alcohol and Alzheimer's disease. His dementia was significant and he had a major depressive syndrome. His wife and family could no longer cope and he recommended that the appellant be referred for permanent care.
19 On 24 July 2000, Dr Panegyres reported that when he had first seen the appellant, in February 1998, his assessment was that the appellant had an amnesic syndrome characterised by impairment of his working memory, impaired orientation and reduced attention and calculation. Neuropsychometric evaluation revealed global deterioration in cognitive functioning. Over the subsequent period, his general condition had deteriorated fairly rapidly. He confirmed that the appellant was unable,
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- by reason of his dementia and possibly Alzheimer's disease, to understand the charge or participate in a trial and was therefore unfit to stand trial. In particular, he was unable to understand the purpose of the trial, he would be unable to follow the proceedings or to have any input into the trial, he would be unable to be actively involved in the trial and, because of the nature of his mental condition, he would be unable properly to defend the charge or understand the proceedings.
20 Dr Pullela's report dated 23 October 2000 was also directed to the appellant's fitness to stand trial, although he did give consideration to a possible custody order, noting that, in view of the appellant's underlying progressive physical disability (dementia), he would be unsuitable to be placed in a custodial setting. Nevertheless, he said, the appellant's depression was capable of being treated, and he satisfied the criteria for being detained in an authorised hospital, that is to say, a hospital authorised under the Mental Health Act 1996. These observations were made in connection with s 24(2) and (3) of the Criminal Law (Mentally Impaired Defendants) Act, and related to defendants in respect of whom custody orders have been made and who have not been discharged from such orders. There accordingly appears to have been some confusion as to the placement of persons in custody in authorised hospitals. The appellant's dementia was not capable of being treated.
21 A subsequent report, dated 1 December 2000, however, clarified the position. In this report, Dr Pullela described the appellant as having an underlying diffused/cerebral atrophy (brain damage) as a result of diagnosed Alzheimer's disease and/or possibly due to the effects of alcohol. He was of the opinion that this condition was unlikely to improve, even over a period of time, and, given the possible progressive nature of the disease, one would expect a gradual decline over time and thus the prognosis remained poor. As he understood the position, the appellant was currently in a respite home, and he believed that the appellant was currently well looked after. His wife had confirmed her continued support and supervision whilst he remained in the respite home. In Dr Pullela's opinion, the appellant could be adequately looked after outside the hospital environment. He recommended that the appellant remain in the respite home with the stated support measures. Given the progressive nature of his condition, he required ongoing neurological supervision and monitoring. He was being followed up from a neurological point of view by Dr Panegyres, who would continue to follow him up on a regular basis. The appellant would be unsuitable, Dr Pullela stated, for a custodial setting. It was further his view that the appellant would not present any danger to the public if he were cared for
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- outside a hospital environment, given his physical disabilities and impaired capacities. Dr Pullela added that he doubted very much that the appellant, given his limited comprehension, impaired reasoning and judgment, would have any inclination or motive to re-offend in a similar fashion.
22 Her Honour accepted, on all the evidence, that, having regard to his disabilities, the appellant did not present a danger to the public. She concluded:
"It seems clear enough that the legislative intention is not merely that there be some kind of preventative detention where there is a danger to the public. That would have been easy enough to say in so many words. The public interest in this case involves the balancing of a number of different concepts. Importantly, imprisonment without a finding of guilt is exceptional in our legal system. It is also of course exceptional that a person not be able to be tried where there is on the face of it a strong prima facie case so that to release such a person may be inappropriate even where there is no danger to the public."
23 Her Honour then concluded that it was appropriate in this case to make a custody order pursuant to s 19(1)(5) of the Act.
24 By s 24 of the Act, a person in respect of whom a custody order has been made, and who has not been discharged from the order, is to be detained in an authorized hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Defendants Review Board, until released by an order of the Governor. A mentally impaired defendant, however, is not to be detained in an authorized hospital unless the defendant has a mental illness that is capable of being treated. The appellant's mental illness is not so capable. We were informed by the Crown prosecutor that no "place" has been "declared" by the Governor. A detention centre is available only to a youthful offender. In these circumstances, a custody order having been made, the appellant could only be held in a prison and he was accordingly placed in custody at Casuarina Prison, being a setting which was said by Dr Pullela to be unsuitable for him - an opinion which her Honour accepted. Her Honour, it should be said, had not been informed that no place of detention had been declared as such pursuant to s 23 of the Act.
25 I am conscious of the fact that her Honour's decision to make a custody order in respect of the appellant involved the exercise by her of a
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- discretionary judgment. However, in the end, I concluded that this appeal should be allowed, the custody order quashed and an order made for the release of the appellant. The considerations which led me to this conclusion are that, on the evidence, the appellant will never be brought to trial and, if the order remained in force, he would have to be held in custody for an indeterminate period without having been found guilty of any offence. He does not pose a risk to the public, his disabilities will only worsen, and setting on one side the charges brought against him, he has generally been of good character. The alleged offences took place some 18 years ago and there is no suggestion that he has committed any offences similar in nature to those with which he was charged in the Supreme Court during the intervening period. Furthermore, whilst the allegations are unquestionably serious, I agree with the conclusion of Mr Mactaggart that the Crown case is a "reasonable" case, rather than a "strong case", depending as it does upon the uncorroborated evidence of the complainant. Based upon the appellant's videotaped interview with the police, the outcome of any trial would have depended upon the jury's conclusion as to the credibility of UF and of the appellant. Whilst in his interview the appellant admitted that he thought he did have sex with UF at a time when she was 16 or a little older, this was clearly claimed to have been a consensual act on the part of UF. The limitation period having long since expired, it would not have been open to a jury to convict the appellant of the lesser offence of carnal knowledge of a girl under the age of 16.
26 In my opinion, in all the circumstances, the public interest did not require that the appellant should be ordered to be held in custody. It was for these reasons that I joined in making the orders quashing the order for custody and directing the release of the appellant.
27 WALLWORK J: On 5 December 2000 when the appellant was 61 years of age, a Judge in the Supreme Court declared that he would never be fit to stand trial on eleven counts of rape and one of indecent assault which it was alleged he had committed between August 1982 and December 1983. Each of the alleged offences was said to have been committed against the daughter of the person who later married the appellant.
28 The order that the appellant would not become mentally fit to stand trial was made pursuant to s 19(1)(a) of the Criminal Law (Mentally Impaired Defendants) Act of 1996 ("the Act"). The learned Judge then made a custody order in respect of the appellant pursuant to s 19(4)(b) of the Act. Practically, that order had the effect that the appellant was thereafter detained in Casuarina Prison, which is a maximum security
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- prison. This Court was told that the appellant spent most of his time in the infirmary.
29 The appellant appealed against the making of the custody order. On 17 May 2001, having heard submissions from the appellant's counsel and counsel for the DPP, this Court ordered that the appeal should be allowed, the custody order quashed and that the appellant be released from custody. The following are my reasons for agreeing in that order.
30 Before making the declaration and custody order, the learned Judge discussed the alleged circumstances which had resulted in the charges and also the medical evidence relating to the appellant.
31 It had been alleged by the Crown that when the complainant was about 15 years of age with no prior sexual experience, there had been an arrangement made between the appellant and the complainant's mother, that in return for the appellant entering into a relationship with the complainant's mother and providing accommodation for her family, the appellant could have sexual intercourse with the complainant. The Crown alleged that sexual intercourse had occurred on many occasions within the relevant period although the complainant had been tearful and upset. The complainant's evidence was that that had been the situation on each occasion and that although no physical violence had been used in order to obtain her consent, the intercourse on more than one occasion had been forceful and painful to her. The appellant had apparently taken steps to avoid the complainant becoming pregnant.
32 In her evidence at the preliminary hearing the complainant said, amongst other things, that on a Friday night in 1992, her mother and the appellant had been watching television with her. Her mother had said that the family was to go on holidays with the appellant to Dongara. After that they were to live with him in his house and that "in order to do that you are going to have sex with him." The complainant said that she had understood that she and her younger brother were to live in the house with her mother and the appellant.
33 In cross-examination it was put to the complainant that her mother had not said that she would have to have sexual intercourse with the appellant in exchange for rent and a better life for the family. The complainant agreed with that proposition.
34 The complainant said that she had later reported the matter to the police in December 1998 because she needed "closure." She had needed to "move on and be able to have a life as normal as possible." The
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- complainant said she had not been to a counsellor prior to the time of the complaint "other than years before." She had apparently had counselling in 1989, 1990 and in 1996. She said it had been recommended to her that she go to the police, but she had always been too scared to do so.
35 The learned Judge considered a number of reports from medical practitioners, including a report from a neurologist and two reports from a forensic psychiatrist. The information from those reports was that the appellant had first been diagnosed with dementia towards the end of 1997. A clinical assessment had then shown evidence of memory impairment. A CT scan had shown advanced cerebral atrophy. A nuclear scan had shown wide-spread brain abnormalities. Towards the end of 1998 a neurocognitive test had shown some memory impairment, but not major language abnormalities.
36 In February of 1999 the appellant had been interviewed by police officers on video. The learned Judge said that on that occasion the appellant had certainly shown some tendency to ramble and some vagueness, but so far as a lay observer could discern, no substantial difficulties in comprehension or in memory. The Judge said that the appellant's condition had later deteriorated. A neurologist's report in 2000 had revealed that the appellant had significant dementia, related possibly to alcohol abuse and to Alzheimer's disease. His memory and global cognitive functions had been particularly affected. By way of example, during admissions to the Joondalup Mental Health Unit and the Sir Charles Gairdner Hospital in mid to late 1999, the appellant was noted to forget his way around the wards and not to remember a conversation he had heard about a quarter of an hour previously.
37 The learned Judge said that the most recent report from a forensic psychiatrist in October 2000 had revealed that the appellant had impaired cognitive functioning, poor concentration, varying levels of awareness and that "his ability to comprehend criminal process would appear to be very limited."
38 The Judge came to the view that the appellant might be likely to be able, with assistance, to grasp the nature of the charges and the requirement to plead, and perhaps the purpose of the trial, but because of his memory and attention problems, on top of the generally impaired cognitive functioning, he would be unable to follow the course of the trial and be unable to properly defend the charges against him. He was therefore unfit to stand trial. The nature of his progressive illness meant
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- that he would never be fit to stand trial. A declaration to that effect was then made.
39 Pursuant to s 19(4) of the Act the question then arose as to whether the appellant should be released from custody or a custody order made.
40 Section 19(5) of the Act provides:
"A custody order must not be made in respect of a defendant unless the statutory penalty for the alleged offence is or includes imprisonment and the Judge is satisfied that a custody is appropriate having regard to –
(a) the strength of the evidence against the defendant;
(b) the nature of the alleged offence and the alleged circumstances of its commission;
(c) the defendant's character, antecedents, age, health and mental condition; and
(d) the public interest."
41 The learned Judge came to the view that it was clear from the transcript of the preliminary hearing at which the complainant had been cross-examined, that she had not significantly contradicted herself and had not been shaken as to her account of the events in question; further that there was nothing on the face of the transcript to cast doubt on the evidence which she had given.
42 The Judge noted that the complainant had made a complaint to a female friend towards the end of 1983 after she had left home and shortly after the alleged offences. That complaint had been of sexual intercourse. There had been an earlier and less direct complaint made to a schoolfriend concerning the appellant having interfered with her. The Judge considered that the two complaints tended to show consistency in the complainant.
43 With respect to the video record of interview, the Judge said that the appellant had a tendency to ramble at times and had difficulty in remembering details. However, it was noteworthy that he had said he thought he recalled, and later on, that he had recalled, having sex with the complainant on at least one occasion. His account of that event was that although he did not remember the details "he remembers that she was playing up to him". The Judge said that it was notable that the appellant
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- had been quick and clear in his assertion that the complainant was at that time 16 years of age or possibly older.
44 The Judge came to the conclusion that although the alleged offences had occurred quite a long time ago and there was no corroboration, and it appeared to be an appropriate case for a Longman direction, there nevertheless seemed to be a relatively strong Crown case. The appellant's counsel had conceded that if proved, the offences would be serious offences.
45 Having discussed the matters referred to in s 19(5)(a) and s 19(5)(b), being the strength of the evidence against the defendant and the nature of the alleged offences and circumstances of their commission, the learned Judge referred to the matters in s 19(5)(c), being the defendant's character, antecedents, age, health and mental condition.
46 The Judge noted that the appellant suffered from depression, with at times some suicidal ideation. Although he was in his early sixties, he appeared much older in relation to his mental functioning. He had previously been of good character, having one assault conviction and some traffic offences. He had a history of stable employment, having left school at the age of 15 or 16 years of age and then commenced a carpentry apprenticeship. He had attended night school and completed an estimating course. He had then commenced employment as an estimator. He had later become a manager and been involved in a number of major construction projects. Despite some changes of employment, he had continued in stable and responsible employment in the construction industry until he had retired due to sickness in February 1997.
47 The appellant had been married on two occasions. His first marriage continued for approximately 17 years. When that marriage ended in 1979 the appellant had developed a problem with alcohol. He had overcome that and thereafter did not drink for a period of about 17 years. At the time the Judge was considering this matter the appellant was married to his co-accused. Mrs Seal looked after the appellant, although on occasions and of necessity, he spent some time in a respite home in order to give Mrs Seal a break from caring for him.
48 The most recent psychiatric report revealed that the appellant could be adequately looked after outside the hospital environment, although he required ongoing neurological supervision and monitoring. It was said that he would be unsuitable for a custodial setting. An earlier report had
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- suggested that the appellant should be placed on a custody order and be detained in an authorised hospital.
49 The learned Judge concluded that it appeared that the appellant could be treated in the community, but that he required what could be regarded as institutional care from time to time, it not being practical for his wife to care for him full time. He was unsuitable for treatment in a custodial setting. His condition was irreversible and progressive.
50 The final matter which the Judge had to consider pursuant to s 19(5)(d) was the public interest. The Judge came to the conclusion that within that consideration was the question of danger to the public. It was noted that the appellant did not now present a danger to the public in view of his disabilities. The Judge specifically found that to be the fact. The Judge also noted that the alleged offences, if they had been committed, had been committed many years ago and that there had been no suggestion of any offending since that time. The Judge found that the appellant's risk of re-offending was low.
51 With respect to the question of "the public interest" in s 19(5)(d), the learned Judge said that the public interest in this case involved the balancing of a number of different concepts and that "importantly, imprisonment without a finding of guilt is exceptional in our legal system." It was also exceptional that a person was not able to be tried "where there is on the face of it, a strong prima facie case, so that to release such a person may be inappropriate even where there is no danger to the public." The Judge said that it seemed that in this case what was required was a consideration which balanced the factors set out in s 19(5), subparagraphs (a) through to (c). The Judge said that it had to be assumed that appropriate places in which the appellant would be detained were available and that was an assumption upon which the decision-making must rest.
52 The Judge came to the conclusion that "in my view having regard to the circumstances of the offence, having regard to the strength of the Crown case, and balancing that as best I can against the factors set out in relation to Mr Seal personally, it is nevertheless my view that it is appropriate in this case to make a custody order… ." A declaration was also made that the appellant would not become mentally fit to stand trial within six months in terms of s 19(1)(a) of the Act.
53 On the hearing of this appeal it was the submission of counsel for the appellant that the purpose of the considerations referred to in s 19(5), is to
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- ensure that persons charged with offences who are incapable of standing trial, are not released into the community if there is some danger to the community or themselves, or there is some other public interest reason why they should not be released into the community. Reference was made to the Second Reading Speech of the Minister when the provisions were placed before Parliament. The Minister then said:
"In accordance with these goals the Government has maintained the view that the Governor in Executive Counsel is the appropriate body to be responsible for the ultimate release from custody of mentally impaired defendants who have been violent or caused property damage. However the Bill provides that it is the role of the courts to determine first whether in all the circumstances of the case the defendant should be made the subject of a custody order. Where the offence is of a minor nature the defendant will be discharged either unconditionally or conditionally by the court. Thus, this Bill shares the same three goals as the broader criminal justice system. These are to protect the public, to ensure the fair treatment of those involved in the criminal justice process and to minimise the incidents of personal and property violence in the community. The Government accepts that there must be modification to the criminal justice system to accommodate factors specifically to mentally impaired defendants. The main factor to recognise is that mentally impaired defendants are not criminally responsible for their acts and omissions. Consequently, although it may be necessary to protect themselves or the community from them if they are violent, that should occur in a proper context."
55 It was submitted that in this case the learned Judge had erred in saying that it seemed clear that the legislative intention is not merely that there be some kind of preventative detention where there is a danger to the public and that the public interest involves the balancing of a number of different concepts, including that where there is a strong prima facie case it may be inappropriate to release a person even where there is no danger to the public.
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56 It was contended for the appellant that the learned Judge had erred in attempting to balance the matters set out in s 19(5)(a) – (c) of the Act when considering the question of the public interest. Further, that in this case the effect of the custody order was that the appellant could not go to an authorised hospital because he was not capable of being treated. The result was that he lived in prison, notwithstanding the medical evidence that he was unsuitable for a custodial sentence.
57 It was submitted for the appellant that at the time the order was made the appellant had been in the care of his wife who from time to time had sought assistance by putting him into a home; also that he had been looked after by carers on other occasions. It was submitted that the learned Judge had placed too much weight on the strength of the Crown case and the nature of the alleged offences.
58 It was contended for the appellant that having made the finding that the appellant was of little or no risk of re-offending, greater weight should have been placed on that aspect; that in view of the incurable disease from which the appellant was suffering, there was no public interest in keeping him in a prison, and in particular, at the infirmary at Casuarina Prison. It was submitted that there was nothing in the Act to the effect that there was a need in the community to see that a person who had allegedly committed serious offences should have "a stint behind bars."
59 On the other hand it was submitted for the respondent that the primary reason the custody order had been made in this case was because of the nature of the alleged offences and the strength of the evidence against the appellant.
60 In my opinion and with respect, it is not clear from the learned Judge's reasoning what weight was given to the fact that in the opinion of the psychiatrists and due to his age and mental condition, the appellant does not now constitute a significant danger to the community. It is also not clear how much weight was given to the consideration that a person should not normally be held in custody without a trial unless the public interest demands it. What is clear from the learned Judge's reasons is that there was considerable weight given to the seriousness of the offences and the strength of the Crown case.
61 Because it was not clear what weight was given to the various factors abovementioned, in my view there was error in the decision-making process – Pettitt v Dunkley [1971] 1 NSWLR 376 at 387-388. For that reason I agreed that the custody order should be set aside.
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62 This Court was told that if the appellant were released, he would be looked after by Mrs Seal. Further that persons skilled in the care of Alzheimer's disease would come to the house and look after the appellant once a week on Thursdays from 10.00 am until 5.00 pm. The appellant would be placed in a day care centre every Tuesday. For one week in every five weeks, he would reside at the Kinross Anglican Home. That was the regime which had existed before the custody order was made and would resume if he were released.
63 In my opinion and because it would be much more satisfactory for all concerned if the appellant was released from prison and cared for at home, I agreed to the order of the Court releasing the appellant from prison.
64 STEYTLER J: I have had the advantage of reading the reasons for decision of Kennedy J. They reflect my own reasons for joining in making the orders, quashing the order for custody and ordering the release of the appellant. I have nothing to add.
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