Glascott v The King - [2024] VSCA 106

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0061

JOHN THOMAS GLASCOTT	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2024
DATE OF JUDGMENT:	27 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 106
JUDGMENT APPEALED FROM:	DPP v Glascott (Unreported, County Court of Victoria, 1 March 2024, Judge M Bourke)

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CRIMINAL LAW – Appeal – Applicant charged with sexual offences against a female relative and other children under the age of 16 – Finding that the applicant is unfit to stand trial – Whether finding is unreasonable or cannot be supported having regard to the evidence –Whether the judge made a material error of law – Leave to appeal refused.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 6, 7, 14C, 14I.

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Counsel
Applicant:		In person
Respondent:		Ms J Warren
Solicitors
Applicant:
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
PRIEST JA:

Introduction

An indictment filed in the County Court charged the applicant with a number of sexual offences against a female relative, and several other female children, allegedly committed in a period between 16 May 1996 and 15 May 2001.
On 1 March 2024, a judge of the County Court found that the applicant was, within the meaning of s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), unfit to stand trial for those offences (‘the finding’).
By a notice under s 14I of the Act, filed on 28 March 2024, the applicant seeks leave to appeal against the finding.
For the following reasons, we consider that leave to appeal must be refused.
Key provisions of the Act
Since 25 April 2020, the question of a person’s fitness to stand trial has been required to be determined by a judge alone, rather than by a jury.[1]
[1]See COVID-19 Omnibus (Emergency Measures) Act 2020, s 30; and Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, s 122.
The circumstances in which a person is unfit to stand trial are spelled out in s 6 of the Act, which provides:
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 time 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 evidence that may be given in support of the prosecution; or
(f)unable to give instructions to his or her legal practitioner.
(2)A person is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glascott v The King

Details

AGLC: Glascott v The King [2024] VSCA 106
Case: [2024] VSCA 106
Decision Date: 27 May 2024

CaseChat Overview and Summary

The case of Glascott v The King involves an appeal by the applicant, who was found unfit to stand trial on charges of sexual offences against a female relative and other children under the age of 16. The appeal pertained to the determination that the applicant was unfit to stand trial, which was made based on expert psychological assessments and the applicant’s own evidence. The High Court of Australia was tasked with deciding whether the trial judge's determination was unreasonable or unsupported by the evidence, or if a material error of law was made.

The primary legal issues addressed were whether the judge's finding that the applicant was unfit to stand trial was unreasonable, could not be supported by the evidence, or if a material error of law was committed. This required a detailed examination of the evidence provided by two clinical psychologists, Dr Sara Fratti and Dr Aleksandra Belofastov, who both concluded that the applicant was unfit to stand trial. The applicant challenged these opinions, arguing that he could indeed understand and participate in the trial. However, the court had to consider whether the cognitive deficits and mental health issues identified by the experts genuinely impeded the applicant's capacity to follow the trial, instruct legal counsel, and understand the proceedings.

The court held that the judge’s findings were not only supported by the evidence but were also correct. Dr Fratti’s evidence indicated that the applicant would struggle to follow the trial and give instructions to a legal practitioner. Additionally, the applicant’s cognitive deficits, learning disability, and mental health issues made it unlikely that any suggested strategies would enable him to be fit for trial. The court found no material error of law and concluded that the judge’s determination was reasonable. Therefore, the applicant's leave to appeal was refused.

The final orders confirmed the refusal of leave to appeal against the finding that the applicant was unfit to stand trial, thus upholding the trial judge's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the purposes of the hearing, the judge received a report from Dr Sara Fratti, a clinical neuropsychologist, dated 27 August 2023; and two reports from Dr Aleksandra Belofastov, a clinical and forensic psychologist with Forensicare,[8] the first being dated 9 May 2023, and the second, an ‘addendum’ to the first, being dated 9 October 2023. In their reports, Dr Fratti and Dr Belofastov each expressed opinions to the effect that the applicant was unfit to stand trial — Dr Belofastov’s opinion being to an extent qualified — and both gave oral evidence confirming those opinions. In his cross-examination of them, the applicant challenged their opinions. The applicant also gave affirmed oral evidence, in the course of which he said: ‘I just wanted to show the court that I’m capable of putting up an argument’, and ‘I’m capable of a defence, because the truth can’t hurt me’. Counsel for the prosecution did not cross-examine the applicant, but, as might be expected, the judge asked him a number of questions designed to clarify his position.[8]The Victorian Institute of Forensic Mental Health carries on business under the name ‘Forensicare’. See Mental Health and Wellbeing Act 2022, s 611.Evidence concerning the applicant’s mental state In her first report, Dr Belofastov stated that she evaluated the applicant’s fitness to stand trial ‘via mental status examination, clinical interview, review of collateral materials and, the Australian and New Zealand Evaluation of Fitness to Stand Trial (ANZ-EFST-R; Blake, G. A., Ogloff, J., & Rogers, R., 2019)’. The applicant ‘was administered the 28-item structured interview to detect feigned mental illness and feigned unfitness, which has been empirically demonstrated to detect malingerers (Rogers, R., Tillbrook, C.E., & Sewell, K.W., 2004), which is embedded within the protocol’. The applicant’s scores ‘revealed no statistically significant elevations that would suggest the presence of feigning or tendency to exaggerate mental health symptoms’. She concluded that:Mr Glascott’s fitness to stand trial may be challenging as a self-represented litigant, in particular, his ability to follow the course of the trial. I would conjecture that if Mr Glascott was legally represented, whilst there might still be issues related to instructing legal counsel, he would more likely be found fit to stand trial on the balance of probabilities. As a self-represented litigant, if the Court is able to support appropriate compensatory strategies (the primary ones being the allowance of time, support to alleviate a subjective sense of pressure, and timely access to summaries of proceedings to assist his memory), then it could render Mr Glascott fit to stand trial at this point in time. After having had the benefit of Dr Fratti’s report, in her addendum report Dr Belofastov said:In summary, I would distill (sic.) my concerns into two primary areas: Mr Glascott’s ability to follow the course of the trial [6(1)(d)] over a series of days or more, in which he will be required not only to remember information over the course of time, but to use that information to mount his defence and respond to the evidence presented in real time. If the evidence is complex, this may further compound this issue. Moreover, if the evidence is emotionally charged for him, and I conjecture that it will be based upon his avoidance of aspects of it to date, then this may overwhelm his abilities to cope. My second concern builds from this latter point. Mr Glascott to this point in time has declared that he is struggling to read the written Statements by the Complainants in the current matters. For reasons which are understandable given the nature of the charges and the difficult feelings this may raise for Mr Glascott, should he continue to avoid analysis of this material, it may compromise his ability to understand the substantial effect of this evidence and how it may be used in support of the prosecution [6(1)(e)].

Decision

Reasons for decision

In our view, the judge’s findings were not only open on the evidence, but they were plainly correct. We agree that, based on Dr Fratti’s evidence, it ought to be concluded that the applicant would be unable to follow the course of the trial, and unable to give instructions to a legal practitioner. Moreover, in light of the applicant’s marked cognitive deficits, longstanding language-based learning disability, disorganised thinking, acute mental health factors and likely paranoid personality features, we consider that the judge was correct to conclude that it is unlikely that the strategies suggested by Dr Belofastov would render the applicant fit to be tried. Finally, we are unable to see that the judge made any material error of law.Conclusion Since the applicant has failed to satisfy us that the judge’s finding that the applicant is unfit to stand trial was unreasonable or cannot be supported having regard to the evidence, or that the judge made a material error of law (or that for another reason the finding should not stand), leave to appeal against the finding must be refused.

Ratio Decidendi

Legal Principle Established

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