R v Camurtay

[2021] HCATrans 96

[2021] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M101 of 2020

B e t w e e n -

THE QUEEN

Applicant

and

CIHAN CAMURTAY

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 9.29 AM

Copyright in the High Court of Australia

MS L. CASSIMATIS:   Good morning, your Honours, I appear as solicitor on record for the respondent.  (instructed by Gallant Law)

MR C.E. BOYCE, QC:   If the Court pleases, I appear with MR T.J. BOURBON for the applicant.  (instructed by Office of Public Prosecutions (Vic))

MR T. MARSH:   Good morning, your Honours, subject to the leave of the Court, I am here at the invitation of the Court with my learned friend, MR E. GOLDMAN. 

MR C. CAMURTAY appeared in person.

KIEFEL CJ:   We will first hear the application of Gallant Law for leave to withdraw.

MR CAMURTAY:   Interpreter.  Interpreter.

KIEFEL CJ:   Mr Camurtay, I will not need to speak to you just for the moment.  I will be hearing the application of your solicitors for leave to withdraw and discontinue appearing for you, and then I will hear from you, but I would appreciate it if you would be quiet while I listen to them first.

MR CAMURTAY:   Yes, Madam.  Just from the start, I would like to ask the judge for video conference if it is possible, as are my rights.

KIEFEL CJ:   Mr Camurtay, would you please be silent while I speak to your solicitors.

MR CAMURTAY:   Sure.

KIEFEL CJ:   There is an interpreter present.  Mr Interpreter, I think Mr Camurtay can manage, but we will call upon you if necessary.  Thank you for your assistance.

THE INTERPRETER:   Thank you, your Honour.

KIEFEL CJ:   Yes, Ms Cassimatis.

MS CASSIMATIS: Thank you, your Honours. I appear in my application to seek leave to withdraw as solicitor for the respondent, pursuant to rule 6.02.5 of the High Court Rules2004.  Your Honours, I refer to my affidavit dated 13 May 2021 and adopt those contents of my submission…..in support of my application.  If your Honours have particular questions of me I am more than willing to address them today.

KIEFEL CJ:   No, thank you, Ms Cassimatis.  We have read your affidavit.  I will ask Mr Camurtay if he has anything to say.  Mr Camurtay, your solicitors are seeking leave of the Court to withdraw so that they will not represent you on this hearing.  Do you have anything you wish to say about that application?

MR CAMURTAY:   Yes, Madam.  Can I talk just two minutes?

KIEFEL CJ:   Do you have anything to say about your solicitor’s application for leave to withdraw?

MR CAMURTAY:  Yes, all good.

KIEFEL CJ:   You are happy with that?

MR CAMURTAY:   Yes, Madam.

KIEFEL CJ:   Yes, thank you very much.  You have leave to withdraw, Ms Cassimatis - the firm, Gallant Law, has leave to withdraw.

MS CASSIMATIS:   If your Honour pleases.

KIEFEL CJ:   Mr Camurtay, we will now deal with the application by the Crown for leave to appeal.  I will hear what they have to say about why they are seeking special leave and I would like you to listen to what they say and then I will ask you if you have anything to say.

MR CAMURTAY:   Thank you, Madam.

MS CASSIMATIS:   Excuse me, may I be excused from the courtroom?

KIEFEL CJ:   Yes, please.  That is fine, thank you.

MS CASSIMATIS:   Thank you.

KIEFEL CJ:   The Court is most appreciative, Mr Marsh, of you and Mr Goldman offering the assistance as amicus if required by the Court.

MR MARSH:   May it please the Court.

KIEFEL CJ:   Thank you.  We will hear from the applicant first.

MR BOYCE:   Your Honours, as a matter of background and really just to set the scene could I take your Honours to some salient parts of the judgment below - the judgment below commences, I think, at application book 113 – and in particular to paragraph 5 of the judgment below.  Your Honours will see there set out ‑ ‑ ‑

KIEFEL CJ:   Mr Boyce, you might need to speak up a little, we are – it does not seem like it is dialled up very loud.  Paragraph 5 of ‑ ‑ ‑ 

MR BOYCE:   Can you hear me now?

KIEFEL CJ:   Yes.

GORDON J:   Mr Boyce, it might assist us if you actually moved the microphone closer to – is there a microphone in front of you that you can put closer to you?

MR CAMURTAY:   Can I ask something, Madam?

KIEFEL CJ:   Not just for the moment, Mr Camurtay.

MR CAMURTAY:   Okay.

KIEFEL CJ:   I will come back to you as soon as Mr Boyce has had his time for speaking.

MR BOYCE:   Thank you, your Honours.  Are your Honours able to hear me?

GORDON J:   That is a bit better. 

MR BOYCE:   I was asking the Court to – if the Court would be obliged to go to, firstly, paragraph 5 of the judgment below which is found at 114 application book, and in particular for your Honours to – if your Honours are good enough to have regard to the ground of appeal that was live between the parties in the court below, your Honours will see there a reference to the opinion of Dr Pandurangi in that ground. 

Could I then take your Honours again, just as a matter of background, to paragraphs 74 and 75 of the judgment below.  Your Honours will find that at application book 139 to 140.  At paragraph 74 your Honours will see the diagnosis of Dr Pandurangi.  At paragraph 75, whilst I will not read it out, your Honours will see that diagnosis fleshed out over a number of paragraphs.  But most importantly at paragraph 76, your Honours will see the manner in which Dr Pandurangi’s opinion was made referable to the six criteria, what otherwise are known as the Presser criteria, the criteria for fitness that are found under the Crimes (Mental Impairment ‑ ‑ ‑ 

KIEFEL CJ:   Mr Boyce, I thought that the view of the Court of Criminal Appeal was that whilst there was this expert evidence which was obtained post‑conviction, it really only served to confirm their view.  It is really not central to the case.  The issue here is whether or not – the issue here as there was in the Court of Appeal is whether or not there was a real and substantial issue as to fitness at the time of trial to warrant an investigation into the fitness of Mr Camurtay to stand trial.  Their Honours said that they did not really need the psychiatric evidence to address that question.

MR BOYCE:   In one sense, that perhaps is not surprising, their Honours not needing to rely upon it because of the issue that we say arises in this case.  Can I answer your Honour the presiding Judge in this way?  The issue that arises in this case, it is submitted, essentially is the same as arose in the Canadian case of R v Taylor (1992) 77 CCR 551, and in the New Zealand case of Solicitor-General vs Dougherty (2012) 3 NZLR 587.

I am attempting to answer your Honour the learned presiding Judge’s question in this regard.  It is unsurprising that their Honours did not need primarily to go to Dr Pandurangi’s opinion because the issue is this, as we apprehend it.  In the instance of a person who suffers from some disorder or impairment in their mental process as in Taylor – the defendant suffered from, as you know, paranoid schizophrenia, was an involuntary patient and thought the judicial system and all of those who participated in it were conspiring against him; in Dougherty the defendant suffered from a persecutory delusional disorder and thus felt himself the victim of a conspiracy case by the Inland Revenue Service - in the instance of such a person who, despite their impairment, satisfied the fitness criteria but is concerned with understanding or comprehending the court’s processes - and that is so in both Taylor and Dougherty and is so - this is the reason why I have taken your Honours to the opinion of Dr Pandurangi - it is plainly so on the expert evidence that in respect of those criteria that one might call the comprehension or understanding or following ‑ ‑ ‑

KIEFEL CJ:   But, Mr Boyce, what you are referring to is not really the proper issue, is it?  Both the Court of Appeal and in this Court on application for leave, the question is not whether or not there is sufficient evidence to warrant – there is sufficient evidence for a conclusion as to Mr Camurtay’s fitness to stand trial, the question is whether there was sufficient evidence before the trial judge to warrant an investigation into that issue, and the evidence necessary to that issue was what counsel said to the trial judge about the difficulties counsel was experiencing with Mr Camurtay and difficulty with instructions.

MR BOYCE:   The essence of their Honours’ ruling in respect of those matters is of course contained primarily, your Honours, at application book 84 and following, and if I can take the Court to that - it is at application book 145, I should say.

GORDON J:   Mr Boyce, before you do that, can you just address paragraph 94 of Justice Priest’s judgment, which is the point the Chief Justice raised with you?  Is it not that you are eliding those two concepts?  Is that not the point that is being made by Justice Priest?  We are not determining the ultimate issue.  We are asking whether or not there should have been an investigation, and whether the facts before the trial judge were sufficient to warrant that investigation being launched.  That is the only question.

MR BOYCE:   That is so.

GORDON J:   What is wrong with what Justice Priest did in this matter?

MR BOYCE:   I am coming to that now.  The answer is to be found at 84 and 85 and following in the judgment below.  Their Honours at 84 recognise a submission was made on behalf of the Crown in the court below at 83, quoting from his Honour former Chief Justice Gleeson in Eastman, and the adoption of the proposition came from the Canadian court in Taylor.  His Honour goes on at 84 to say as follows:

It may readily be accepted that, if a person’s mental disorder does no more than prevent him or her from having ‘an amicable, trusting relationship with counsel’, then he or she is not unfit to stand trial.

But, crucially, at 85:

It may also readily be accepted that the fact that an accused person suffers from a delusion does not of itself render him or her unfit to be tried. But it may. If an accused person’s delusion is such that he is incapable of giving proper instruction to counsel, then, depending on the circumstances, s 6(1)(f) of the CMI Act may be engaged.

Now, it is their Honours delving into what is, in a sense, a qualitative assessment of the proprietary nature or otherwise of the instructions that were forthcoming from the accused in circumstances where, on the expert evidence, there could be no issue but that the accused person satisfied the comprehension aspects of being fit.

Now, the terms, for example, after their Honours have gone through the evidence that was given by the respondent – and one sees this in the judgment below commencing at paragraph 56 and following, I do not need to read that out - but it is clear the court took the view that in the face of there having been a viable defence – one of consent if one…..to that towards the end – but this version of events put forward by the applicant was – the quote, for example, at paragraph 90:

beyond the merely risible, and bespoke a mental state removed from reality.

GORDON J:   But, Mr Boyce, Justice Priest does not link that finding in 90 with his ultimate additional comment at 95.  Paragraph 95 and the possibility of a defence is not at all a building block, or an underlying finding giving rise to the need for an investigation, is it?  Paragraph 90 says, I have looked at his evidence, this is a separate ground to the instructions ground and, on any view, he says it:

went beyond the merely risible, and bespoke a mental state removed from reality.

MR BOYCE:   Yes.

GORDON J:   That is what gives rise to 95, in the first sentence.

MR BOYCE:   Yes, and the submission that we make about that is that contrary to the approach that we see adopted in both Canada and in New Zealand, if, in the case of an accused person who satisfied what I call the “comprehension or understanding requirements” – and on the expert evidence that was clearly so – it is not for the court, when considering what must have been the sixth Presser requirement – that is, examining whether there was an ability to instruct legal counsel, or the legal representative to enter into a qualitative assessment of those instructions – that is to say, to determine whether or not they were, quote/unquote, “proper instructions”, and it is plain, as we would submit it, from 85 that the Court has read into that final or sixth Presser requirement the requirement that the person have an ability to instruct legal counsel, in effect, that the respondent have the ability to give proper instructions – instructions that are not of the quality or would not meet the descriptive epithets that are used by the court.

Now, that is, in our submission, to extend the sixth Presser requirement beyond its reasonable scope.  We pray in aid of our submission in this regard the international decisions that we respectfully submit support us in this regard because they effectively decide when it comes to the final requirement – that is, whether or not the respondent has the ability to instruct their legal representative – the accused person does not have to show or it is not the test that the accused person – insofar as the New Zealand Court is concerned – show decision or confidence – and I find that at Dougherty at 589, paragraph 10 - or what the Canadian court would call “analytic capacity” - one finds that at Taylor at page 567 – that is, do the instructions that the accused gives have to be rational or given in the accused’s own best interests.  Both of those Courts decided firmly against, it is respectfully submitted, that proposition.

Yet, we find, in our respectful submission, this particular case in a case where there no issue that, on the expert evidence, the accused person satisfied Presser 1 to 5 in determining whether or not there was an issue – a real or substantial issue – pursuant to Presser number 6 – a reading in of whether these constructions were proper or were they given to a legal representative in whom that person had trust. 

That finding, or that conclusion by their Honours, one finds it further fleshed out at 87 by reference to the mention on 13 April 2018 – if I could take the Court to 87 of the application book, the penultimate sentence:

Counsel in essence conveyed to the judge that he considered the applicant to be obsessed, unstable, unable to focus his attention on relevant matters and incapable of giving proper instructions.

The idea of “proper instructions” – the idea of instructions that need to be free of some form of delusion is an extension, in our respectful submission, and a seismic extension, with respect, of the sixth Presser requirement which was the only requirement that could conceivably, in the light of the evidence of Dr Pandurangi…..disposition in the present case.

Secondly, if I could take the Court, and I think the Court has already taken me to it, perhaps, paragraph 90 of the judgment, at application book 147, which is where their Honours have identified the second source of the substantial miscarriage of justice.  We find this:

Moreover, the trial judge should, in my view, have taken appropriate action under s 9(2) of the CMI Act, after the applicant had given his evidence (particularly in light of what had previously transpired in the course of the trial).  I consider that the content of the applicant’s evidence went beyond the merely risible, and bespoke a mental state removed from reality.  That it was so should have led the trial judge to conclude that there was a real and substantial question as to the applicant’s fitness to stand trial. 

If one reads both those paragraphs – that is to say, 90 and 87 in the context of 85, where the court has been clear that it has read into the sixth Presser requirement this idea of “proprietary” or “proper” or, to use another term, which is not used by their Honours, but rational or otherwise, or one could say instructions that are, or a version that is free of any delusion is to extend that requirement.  It is because of the manner in which the court, in our respectful submission, has extended that requirement and the changes that would necessarily flow from that, not only on hindsight ‑ ‑ ‑ 

KIEFEL CJ:   But, Mr Boyce, that is not the only basis upon which the Court of Appeal concluded that the trial judge should have thought that there was a real and substantial question as to the applicant’s fitness to stand trial.  There were a number – it was multifaceted. 

MR BOYCE:   Your Honour, there are two, are there not, with respect?  There is the behaviour of – there is effectively what occurred on the mention on 13 April 2018 when counsel could not form a trusting relationship – all we really know about that is that counsel could not form a trusting relationship with his client because his client thought that he was a spy and could not get proper instructions, and on that basis the relationship of counsel and client ‑ ‑ ‑ 

KIEFEL CJ:   Of itself why would that not be sufficient to warrant an investigation?  You are not concerned with the conclusion at this point, but an investigation. 

MR BOYCE:   Because in circumstances where it could only do so if one was to read – in circumstances where there was no issue on the expert evidence of Presser 1 to 5, that is to say, the expert evidence established firmly that this respondent understood the court’s processes sufficiently to be fit - there is no question about that.  The only basis upon which there could be a question that arises if you read into Presser No 6 which is found in our annexure at section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, section 6(1)(f), if one reads into the question inability or:

unable to give instructions to his or her legal practitioner -

because of a mental process that is “disordered”, that is, an ability to have a trusting relationship with such a person in circumstances where the court in Taylor – and this was adopted by the former Chief Justice in Eastman, in adoption of Taylor, and one finds it in Eastman (2000) 203 CLR 1 at 14, paragraph 26, clear statement of authority to the effect that:

(a)The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.

(b)The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c)The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

But most importantly, in answer to your Honour, the learned presiding Judge’s question:

(d)The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean ‑ ‑ ‑

KIEFEL CJ:   Mr Boyce, speaking for myself, I find the position that the DPP is taking in this, challenging the need for an investigation into an accused’s mental health, rather strange.

MR BOYCE:   The basic reason is this, is if things were otherwise, insofar as Presser 1 to 5 on the expert evidence, we may not be here ‑ ‑ ‑ 

GORDON J:   Mr Boyce, I think that is where maybe you are misconceived, because if you read paragraph 93, as I understand it, they were not relying upon the opinion of the expert, they were looking at the two events and drawing a conclusion that there needed to be an investigation - by the events of 13 April and in the second subject, or second group of events, is the giving of evidence, particularly in light of what had transpired during the course of trial.  That second aspect had nothing to do with the giving of instructions, as I understand it.  It was about the conduct of what had transpired in the course of trial, and the court said that there should have been an investigation.

MR BOYCE:   Quite.  My light is on - can I just answer your Honour’s question before I ‑ ‑ ‑ 

KIEFEL CJ:   Yes.

MR CAMURTAY:   Excuse me, Madam, are you there?

KIEFEL CJ:   Mr Camurtay, just allow ‑ ‑ ‑

MR CAMURTAY:   Madam, at the moment I have to tell a very important something ‑ ‑ ‑

KIEFEL CJ:   No, just allow the barrister to finish.  Just allow the barrister to finish.  He is just going to answer a question which Justice Gordon has

asked him.  So, would you just be silent for a moment and I will come back to you shortly.

MR CAMURTAY:   Okay.

MR BOYCE:   The answer is this, your Honour.  Of course, his Honour did not need to rely on Dr Pandurangi’s opinion insofar as him delving into the propriety of instruction is concerned for evidence.  That aspect, no, of course not, because Dr Pandurangi said nothing about that.  So, that is not surprising.  That is reading something into the sixth Presser requirement. Insofar as Dr Pandurangi’s opinion generally might have had some impact upon her Honour’s conclusion, the answer is that they looked at Dr Pandurangi’s opinion and found that it solidified the conclusion that their Honours came to.  So, it could not have been contradictory – there could be nothing that their Honours found that was contradictory to Dr Pandurangi’s opinion.

We know that Dr Pandurangi’s opinion found that from 1 to 5 there was no issue of significance.  So that is why by matter of necessary implication authority must stand for the proposition, it is respectfully submitted, that Presser No 6 is read more broadly than hitherto it has ever been considered to have been read and, secondly, more broadly than it is considered to be read in England, in Canada and in New Zealand.  That is my answer to your Honour’s question.  

KIEFEL CJ:   Yes, thank you, Mr Boyce. 

In our view, there is no reason to doubt the correctness of the decision of the Court of Appeal.  Special leave is refused.  

Mr Camurtay, we do not need to hear from you because we have refused the application of the Crown for leave to appeal from the decision of the Court of Appeal.  The decision of the Court of Appeal stands.  Do you understand?

MR CAMURTAY:   I understand.  Can I tell you just one small thing?

KIEFEL CJ:   No, I do not need to hear from you, Mr Camurtay.

MR CAMURTAY:   Okay.

KIEFEL CJ:   Thank you.

MR CAMURTAY:   Thank you.

KIEFEL CJ:   Mr Marsh and Mr Goldman, the Court thanks you for the assistance that you have offered the Court but, as you appreciate, we ‑ ‑ ‑

MR CAMURTAY:   Can I talk with the interpreter quick?

KIEFEL CJ:   ‑ ‑ ‑ will not need to hear from you, thank you. 

You can disconnect from Mr Camurtay now, Deputy Registrar.

MR CAMURTAY:   Thank you, thank you.

KIEFEL CJ:   Thank you.  Thank you, Mr Interpreter.

AT 9.56 AM THE MATTER WAS CONCLUDED