R v Alford

[2005] VSC 404

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1406 of  2004

THE QUEEN

V

JAMES GORDON ALFORD

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JUDGE:	Hollingworth J
WHERE HELD:	Geelong
DATE OF HEARING:	10 October 2005
DATE OF RULING:	10 October 2005
CASE MAY BE CITED AS:	R v Alford (No 1)
MEDIUM NEUTRAL CITATION:	[2005] VSC 404

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Criminal law - fitness to stand trial – earlier medical evidence raised question of fitness - question never formally reserved for investigation – current medical opinion unanimous that accused now fit to stand trial - test in Eastman v R satisfied – question of fitness not reserved to jury - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s.9(1)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Trapnell	Solicitor for Public Prosecutions
For the Accused	Mr G Mullaly	Victoria Legal Aid

HER HONOUR:

1. The accused, James Gordon Alford, is charged that he did at Corio, in the State of Victoria, on 26 August 2003:

   (1)attempt to murder Jennifer Anne Tate;

   (2)without lawful excuse, intentionally cause serious injury to Jennifer Anne Tate; and

   (3)without lawful excuse, make a threat to kill Jennifer Anne Tate, intending that Jennifer Anne Tate would fear that the threat would be carried out, being reckless as to whether or not Jennifer Anne Tate would fear that the threat would be carried out.

1. Shortly after he was arrested for these offences, Mr Alford was subject to a number of psychiatric evaluations.  Concerns having been expressed by, amongst others, Dr Douglas Bell and Dr Debra Wood, as to his fitness to plead, the time within which his trial was to commence was extended on several occasions in 2004 and 2005.

1. During the time he has been in custody, Mr Alford has received some psychiatric treatment and medication at the Thomas Embling Hospital on two occasions.  He was subsequently returned to the Melbourne Assessment Prison where he has been held for much of this year.

1. His trial was delayed in order to see whether his mental condition would stabilise.  When the matter came before me for final directions a couple of weeks ago, the issue of fitness to plead was raised again.  In order to determine what his current mental state was, at the request of both counsel, I required that further reports be prepared by Drs Bell and Wood and Professor Mullen.  Each of those three psychiatrists has seen Mr Alford within the space of the last week.  Each of them has expressed the clear opinion that Mr Alford is fit to stand trial.  Professor Mullen’s and Dr Wood’s reports are dated 6 October 2005 and Dr Bell’s is dated 7 October 2005.

1. The doubts which had previously arisen in relation to his fitness to stand trial included, in the case of Dr Wood, a concern as to his ability to concentrate during a trial and a concern as to his ability to give adequate instructions to his lawyers, given his delusional state.  The concerns which Dr Bell had previously expressed also related to Mr Alford’s capacity to give proper instructions in the light of his delusions.  Both of those concerns have now been removed in those psychiatrists' minds.

1. I have before me this morning an application made by the Crown, which is supported by defence counsel. The application is that I not reserve to a jury the question of fitness to stand trial. Although a number of judges, including myself, have previously requested medical reports in relation to Mr Alford’s current mental state, the question of fitness has never been formally reserved for investigation under s.9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

1. Having regard to the provisions of s.9, s.7 and s.6 of that Act, I agree that the preliminary question for me to determine is whether there is "a real and substantial question as to the defendant's fitness to stand trial".  Only if that requirement is met should the question be reserved to a jury.

1. According to Hayne J, with whom the other members of the court agreed, in Eastman v. R (2000) 203 C.L.R. 1 at p.99, the relevant test is as follows:

   "There will be a ‘real and substantial question to be considered’ by this body unless no properly instructed jury (or no tribunal) could reasonably conclude that the accused was not fit".

1. Having regard to the unanimous medical evidence now before me, in my opinion no properly instructed jury could reasonably conclude that the accused was not fit to stand trial. 

1. The starting point is, as the prosecutor points out, the presumption of fitness, expressly spelt out in s.7(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  Having regard to the evidence, I am satisfied that there is presently no real and substantial question to be considered, and I will not reserve the question of fitness for investigation under the Act.  Accordingly, the accused will be arraigned to stand trial.

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