Glascott v The King

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 unfit to stand trial only because he or she is suffering from memory loss.
Importantly, s 7(1) of the Act provides that a person is presumed to be fit to stand trial. That presumption is rebutted only if it is established, on an investigation into an accused person’s fitness to stand trial, that the person relevantly is unfit.[2] If, as seems to have been the case here,[3] the prosecution raises the question of an accused person’s fitness to stand trial, the prosecution bears the onus of rebutting the presumption of fitness.[4]
[2]See s 7(2).
[3]At a previous hearing on 7 December 2022, another judge raised a question concerning the applicant’s fitness to be tried, and requested a report on that issue from Forensicare. On the hearing that resulted in the finding that is the subject of the present application for leave to appeal, the prosecution took up carriage of the matter, contending that the applicant was unfit to be tried.
[4]See s 7(4).
Section 14C of the Act requires the judge to determine the question of an accused person’s fitness to stand trial on the balance of probabilities at an investigation into his or her fitness to stand trial (‘the fitness hearing’). At a fitness hearing, the judge may find that the accused is, or is not, fit to stand trial.[5] If the judge finds — as did the judge in this case — that the accused is not fit to stand trial and determines that the accused is not likely to become fit within the next 12 months, the court must hold a special hearing under pt 3 within three months, and may grant the accused bail, or remand the accused in custody, and make any other order thought to be appropriate.[6] We pause to note that, since the applicant was (and is) serving a sentence of imprisonment for the murder of his former family law solicitor, David Robinson,[7] on 10 July 2006, the judge had no option in the present case other than to remand the applicant in custody. We also note that a special hearing is yet to be conducted.
[5]See s 14E.
[6]See s 14F.
[7]See Glascott v The Queen [2011] VSCA 109. See also Glascott v The Queen [2022] VSCA 158.
By virtue of s 14I(1), if a judge finds that an accused person is unfit to stand trial, the accused may, by leave, appeal to the Court of Appeal against that finding; and, by virtue of s 14I(4), the Court of Appeal must allow the appeal if the appellant satisfies the Court that:
(a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b) the trial judge made a material error of law; or
(c) for any other reason the court considers that the finding should not stand.

The fitness hearing

A fitness hearing concerning the applicant was conducted on 19 and 20 February 2024. The prosecution contended that the applicant was unfit to stand trial; but the applicant — who, by choice, was unrepresented by a legal practitioner — contended to the contrary.
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)].
Dr Fratti reported that the applicant underwent a number of tests, including: ‘Test of Premorbid Functioning (TOPF); Wechsler Adult Intelligence Scale 4th Edition (WAIS-4); Wechsler Memory Scale 4th Edition (WMS-4): Logical Memory and Visual Reproduction Subtests; California Verbal Learning Test 3rd Edition (CVLT-3); Rey Complex Figure: Copy; Trail Making Test; Controlled Oral Word Association Test; Animal Fluency; Rey 15 item Test; DASS-21’. Significantly, she noted that the applicant had suffered an acquired brain injury (‘ABI’) due to carbon monoxide-induced anoxia secondary to a suicide attempt in his twenties.
Noting the six criteria set out in s 6(1) of the Act, Dr Fratti was of the view that two were engaged. She said:[9]
[81]    On balance, based on Mr Glascott’s ABI and associated marked cognitive deficits, longstanding language-based learning disability, disorganised thinking, acute mental health factors and likely paranoid personality features, he appears unfit to stand trial on two of the six criteria (i.e., unable to follow the course of the trial and unable to give instructions).
[82]    He otherwise demonstrated adequate capacity to understand the nature of the charge, to enter a plea and to challenge the jury/jurors, to understand the purpose of a trial and the substantial effect of evidence given in Court.
[83]    Given the chronicity of his brain condition and associated cognitive deficits, Mr Glascott is unlikely to become fit in 12 months.
[9]Emphasis in original.
In her oral evidence, Dr Fratti expressed the view that the applicant was not fit to stand trial, whether represented or not, on the basis of being unable to follow the course of the trial and being incapable of instructing legal practitioners. The effect of Dr Belofastov’s evidence was that the applicant would be fit to be tried if represented, and possibly fit to stand trial unrepresented if afforded sufficient supports.
The judge’s finding
The judge considered that the applicant was not fit to be tried because he would be unable to follow the course of the trial (s 6(1)(c)) and unable to give instructions to his legal practitioner (s 6(1)(f)). The judge also had ‘some concern’ that the applicant would be unable to understand the substantial effect of any evidence that may be given in support of the prosecution (s 6(1)(e)), but considered that such a finding was not necessary to his decision.
In the judge’s view, there were three ‘particularly important aspects of the evidence’:
[40] 1. The [applicant’s] memory function deficits. The uncontested neuropsychological evidence clearly identifies severe, relevant impacts upon his capacity. These as I have attempted to explain are to an extent hidden, or at least not readily apparent. Deeper neuropsychological testing by Dr Fratti has revealed the extent of them. This is clearly not a case of simple memory loss as raised in s6(2) of the Act.
[41] 2. Other psychological and cognitive conditions are also relevant. These include affected and declining intellectual ability, poor literacy, a personality disorder which seriously impacts emotional and rational response to the [applicant’s] legal situation and the circumstances of this case. As both witnesses before me put, there is a combination of factors affecting the [applicant’s] fitness. I would find that the effects of his acquired brain injury are central to that combination.
[42] 3. I have also taken into account, bearing in mind the particular features of the [applicant’s] conditions, the difficulties for him of the trial he faces. The alleged offences happened up to 25 to 30 years ago. There is a strong emotional response by him to the allegations, particularly and understandably those related to [a female relative]. The [applicant] states himself, to Dr Fratti, poor memory and confusion, especially under stress. His brain tends to shut down when he feels overwhelmed. There are four complainants. The trial throws up, upon my initial reading of the indictment, the Crown opening and notice of tendency evidence, difficult issues of admissibility and relevance.
Significantly, the judge observed:
The issue of representation has been raised, particularly for example in Dr Belofastov’s evidence. For the reasons I have stated I find the [applicant] not to be fit under s 6(1)(d) and (f) whether he represents himself, which is very likely, or agrees to counsel representing him. In this regard I accept the opinion of Dr Fratti. In this case I see the [applicant’s] lack of capacity to follow the course of trial to be connected to his capacity to instruct counsel. I refer as earlier to Dr Fratti’s opinion stated at paragraph 79 of her report. Dr Belofastov raised the possibility of strategies to assist the [applicant]. I respect her evidence on this, which evidence reflects the difficulty of this case and the seriousness of a finding of unfitness. However ultimately, bearing in mind the [applicant’s] deficits and conditions including his poor literacy, I see it as unlikely that such suggested strategies would, in reality, assist the [applicant] sufficiently in the context and environment of the trial.
Ultimately, the judge found as follows:
For the reasons stated I find that the [applicant] is not fit to stand trial. The factors and conditions bringing this about are effectively permanent. I find that he is not likely to become fit within the next 12 months.
Applicant’s case
In the documents filed in support of his application for leave to appeal, the applicant contended that the question of a person’s fitness to stand trial is a question of law. He stated that ‘there was a legal error, with the Judge (sic.) written opinion’, and asserted (among other things) that:
•he is contesting the issue of fitness ‘due to a (sic.) ongoing police conspiracy that deals with the falsified time of David Robinson (sic.) death’;
•the prosecution is raising mental impairment ‘to shield ongoing campaign (sic.), by the pass (sic.) police misconduct’;
•the ‘unanimous doctor opinion (sic.), are (sic.) not supported by the real evidence of the accuse (sic.) fitness’;
•he is fit to stand trial;
•he ‘can enter [his] own plea and understand a plea’;
•he has the capacity to select a jury;
•he has ‘specific knowledge of understanding the area of [his] own mental health’;
•he meets the requirement for fitness’ ‘as [he] can retain information, at time (sic.)’;
•he now seeks to appeal ‘to be able to stand trial’ and ‘clear [his] own name of these false charges’; and
•‘The crown has impeach (sic.) their own credit. The possible window of time, is impossible to support the Police false claims.’
In oral submissions in this Court, the applicant submitted that the issue of mental impairment had been raised in his ‘homicide trial’, the Court of Appeal and the High Court because he had an ABI. His ABI, however, is related to memory, and memory does not meet the criteria for unfitness to be tried. He submitted that he used to be a licensed private investigator even when he had an ABI. The applicant submitted that he lost about 70 per cent of his memory with the ABI ‘roughly about 1987’, but he was still able to sustain relationships and acquire property. He is ‘not a nut’. For a person with ‘a memory problem’ he has ‘done great things’.
The applicant submitted that ‘the police took part in a joint criminal enterprise in the David Robinsons homicide when they tipped me off to collect my car from the crime scene’. Moreover, the police have ‘loaded [him] up with false and fictitious charges and … they’re looking at a way to weasel out, so they’re raising mental impairment’. He submitted:
I’m not no fool. The Crown prosecutor deceived the court about the time David Robinson was killed. They tipped me off to collect my car from the crime scene cause and now they’re pursuing these false, fictitious charges. I cannot afford your Honour to be labelled mentally impaired cause I’m not mentally impaired, I’ve I have acquired brain injury that affects my memory.
In further submissions, the applicant contended that the Court of Appeal had previously failed to deal adequately with his grounds of appeal, and he made submissions directed to the alleged failings of his counsel in the presentation of his case at trial and on appeal, the nature of which it is unnecessary to set out.
When the applicant submitted that he needed a chance to go before a jury and ‘clear’ himself, the Court pointed out to him that at the special hearing it was open to a jury to find him not guilty of the charges. The applicant said that he understood that the jury at a special hearing could find him not guilty, but added that
this is this is just a ploy from the Crown to belittle me when I was in prison. Everyone in prison knows I’ve been charged for these offences. I’ve had nothing but problems. Like I said to you, Sir, you don’t know, Sir, the label, the mud that sticks. Even if I was acquitted, this mud will never go. This stain will never go away. The Crown have just done this because they know they falsified the time David Robinson was killed and they’re just trying to punish me. That’s all it is, Sir. These absurd allegations, as I said, were raised at the committal 17 years ago. They’ll raise at the trial 15 years ago. So which allegations are these related to the paedophilia? They raised them in the murder trial, on trial for murder, and they’re raising these absurd allegations not in front of jury, of course, but in front of a packed courtroom in front of the judge …
Finally, the applicant asked this Court to grant him an ‘order for assisted suicide’. He was 60 years old and had an ABI. He submitted:
Grant me a court order. That’s all I’m asking the court to do. Don’t allow the DPP to get away with this.
In reply, the applicant in effect repeated much of what he had earlier submitted. He added that if the Court ‘shows me respect, I might get a lawyer’.
Respondent’s submissions

In written submissions, counsel for the respondent submitted that Dr Fratti assessed the applicant as unfit based on the criteria in s 6(1)(d) and s 6(1)(f) of the Act. Dr Fratti’s opinion that the applicant was unable to follow the course of the trial was based on the applicant’s ABI, demonstrated by a very disorganised approach to conversation, difficulty in keeping on topic and a clear inability to retain even simplified information. The applicant’s longstanding language disability and limited reading proficiency mean that he will have difficulties reading and understanding complex documents. Counsel referred to Dr Fratti’s opinion that the applicant was unable to give instructions to his legal practitioner, on two key bases; first, the applicant’s recollections will likely be distorted or inaccurate; and, secondly, the applicant’s preoccupation with his belief that he is being set up by police in relation to the murder charge means that he will struggle to focus on discussions in court with respect to the current charges and to provide meaningful instructions to a legal representative. Dr Fratti further considered that the applicant’s ABI affects his memory function and the capacity to take in, understand and interpret new information, in combination with a personality disorder. These are all factors which are difficult to disentangle. In addition, there is evidence of a decline in his cognitive function. The applicant also suffers from a neurological disorder, confabulation, which is part of the hypoxic brain injury. Counsel submitted that Dr Belofastov’s greatest concern was the applicant’s ability to follow the course of the trial if unrepresented due to his significant memory and attentional difficulties secondary to a long-standing brain injury, which would be further compounded by difficulties with emotional regulation. The applicant’s preoccupation and presentation more broadly suggested the presence of paranoid personality disorder with possible borderline and narcissistic features. Finally, with respect to the applicant’s contention that a person is not unfit to stand trial because of memory loss, counsel submitted that the applicant was assessed as being unfit to stand trial as a result of several factors in addition to memory loss, including his incapacity to stay on track, disorganisation, emotional struggles, intellectual dysfunction and the inability to shift his thinking from the murder trial to the current charges.
Counsel for the respondent submitted orally that the question for this Court is whether, on the whole of the evidence, it was open to the judge to find, on the balance of probabilities, that the applicant was unfit: ‘Put another way was the judge required to find that he is fit’. There was ‘cogent’ evidence from Dr Fratti, who conducted a comprehensive neuropsychological assessment, which provided reasonable grounds for the judge to find that the applicant was not fit to be tried. The only evidence that potentially ‘worked against that’ was that of Dr Belofastov, who considered that the applicant might be rendered fit if he had administrative support. In any event, counsel submitted, Dr Belofastov deferred to Dr Fratti’s opinion in relation to the applicant’s cognitive deficits ‘and the impact that that would have on his ability to follow the information, retain the information throughout the trial, order his thoughts and be able to present an effective defence’. There was nothing in Dr Belofastov’s evidence, counsel submitted, that compelled the judge to find that the applicant was fit to be tried.
Discussion
Under s 14I(1) of the Act, this Court’s intervention is warranted only if the judge’s finding that the applicant is unfit to stand trial is unreasonable or cannot be supported having regard to the evidence, or the judge made a material error of law (or for any other reason the Court considers that the finding should not stand).
Based on the evidence of Dr Fratti, the judge found that the applicant satisfied the limbs for unfitness in ss 6(1)(d) and (f) — that is, the applicant would be unable to follow the course of the trial, and unable to give instructions to a legal practitioner — and would relevantly remain unfit whether he represented himself (‘which is very likely’), or agreed to counsel representing him. Indeed, the judge considered the applicant’s lack of capacity to follow the course of trial to be connected to his capacity to instruct counsel.
With respect to the strategies to assist the applicant raised by Dr Belofastov, the judge concluded that — having regard to the applicant’s deficits — it was unlikely that such suggested strategies would assist the applicant sufficiently ‘in the context and environment of the trial’. As to that, the judge observed that the applicant was ‘adamant’ that he would represent himself, that attitude being borne of ‘an entrenched view that he has been failed by earlier legal representation (for example, in the 2008 murder trial and subsequent appeal proceedings) and that there is a corrupt campaign by police and other parts of the legal system to undo him’.
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.

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[2024] VSCA 106

27 May 2024