R v Demicoli

[2006] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 37 of 2005

THE QUEEN

v.

MICHAEL DEMICOLI

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JUDGES:	CALLAWAY, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2006
DATE OF JUDGMENT:	21 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 69

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Criminal law – Appeal against conviction following plea of guilty – Whether applicant’s fitness to stand trial should have been investigated under Part 2 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Designated trial judge determining that there was “real and substantial question” and ordering investigation, but later vacating order on fresh material – Judge acting at request of applicant’s counsel – Importance of forensic decision where applicant is capable of giving instructions – Application refused – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s.9.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.H. Thomas	Robert Stary & Associates

CALLAWAY, J.A.:

1. On 1st April 2004 the applicant pleaded guilty in the County Court before Judge Ross to a presentment containing 20 counts of arson, one count of burglary, three counts of intentionally damaging or destroying property, one count of reckless conduct endangering a person and two counts of aggravated burglary.  Five days later he was sentenced to seven-and-a-half years' imprisonment with a non-parole period of four-and-a-half years, to be served cumulatively upon the sentence he was then undergoing, which was due to expire on 15th April 2004.  A declaration was made regarding 212 days' pre-sentence detention. 

1. An application for leave to appeal against sentence was refused by Charles, J.A. on 15th October 2004.  A notice of election was filed, but the application was abandoned on 6th September 2005. 

1. In the meantime, on 15th March 2005, the Registrar had granted the applicant an extension of time within which to seek leave to appeal against conviction.  The grounds of appeal are:

"1.The learned presiding judge erred in failing to reserve the question of the applicant's fitness to stand trial for investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

2.The learned presiding judge erred in finding that there was not 'a real and substantial question as to the applicant's fitness to stand trial' in circumstances where such a finding was not reasonably open.

3.In determining whether there was 'a real and substantial question as to the applicant's fitness to stand trial' the learned presiding judge erred in failing to apply the correct test.

4.As a consequence of the matters set out in grounds 1-3 there has been a fundamental failure in the trial process such as to render both the pleas entered and the consequent convictions a nullity.

5.In the alternative as a consequence of the matters set out in grounds 1-3 there has been a substantial miscarriage of justice."

1. It is unnecessary to say anything about the offences themselves.  The application for leave to appeal against conviction is concerned solely with proceedings before Judge Gullaci in relation to fitness to plead.  In the light of the conclusion I have reached, I put to one side the fact that a presentment may not have been filed at that stage. 

1. In a psychiatric report dated 21st June 2003 Dr Douglas Bell expressed the view "somewhat reluctantly" that, on the balance of probabilities, the applicant was unfit to stand trial. On 9th December 2003 Judge Gullaci determined that there was a "real and substantial question" as to the applicant's fitness to stand trial and ordered an investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, which I shall call "the 1997 Act". The investigation was to take place on 4th February 2004. His Honour made that determination and order in the light of Dr Bell's report, although his view at the time was that it was "pretty weak" and "fairly limited and old".

1. The matter was mentioned again before the judge on 20th January and 23rd January 2004. On the latter occasion, counsel for the applicant informed his Honour that a plea offer had been accepted. "Certainly my instructions are", counsel said, "that he is happy with the outcome and happy to plead guilty to the charges as offered." The judge expressed concern that he had already determined that there was a real and substantial question and had ordered an investigation under Part 2. It was decided to await a psychiatric report from Dr Lester Walton and possibly a further report from Dr Bell.

1. The latter was not received but, in a report dated 30th January 2004, Dr Walton expressed the view that “[O]n the face of it, Mr Demicoli would seem to meet all the criteria defined for fitness to be tried in the current legislation”.  Dr Walton's only reservation was that he had no independent information by which to judge the accuracy of the history provided by the applicant.  If it turned out that the applicant's account was significantly inaccurate, he would have to revise his opinion that the applicant was currently fit to be tried.  The reference to the history provided by the applicant cannot be confined to his medical history.  It is apparent that it includes the history of the offending.  That history, in the report itself, is jejune.  We do not know the extent to which Dr Walton had been informed about the charges the applicant faced.  When the case returned to court on 4th February 2004, the reservation expressed by Dr Walton was not the subject of submissions. 

1. It will be recalled that that was the date on which the investigation under Part 2 was to begin. In the event, no jury was empanelled. Counsel for the applicant asked the judge to accept that, based on Dr Walton's report, there was "no longer a fitness to plead issue" and that therefore there was no need to empanel a jury to decide that question. Counsel fully supported the order that the judge proceeded to make. As explained in a ruling that he delivered immediately following counsel's submissions, his Honour determined that there was no real and substantial question to be determined by a jury as to whether the applicant was fit to stand his trial and vacated his earlier order that there be an investigation.

1. In both written and oral submissions, Mr Thomas said everything that could be said in favour of re-opening this case by the grant of leave to appeal against conviction.  But, in the circumstances that I have described, I do not consider that any of the grounds of appeal can be upheld.  I have no doubt that a judge has power to vacate an order that there be an investigation if circumstances change before a jury is empanelled.  Otherwise an investigation under the 1997 Act would have to be conducted where an order was made by mistake or where circumstances changed in a way that rendered the investigation unnecessary. 

1. In the present case it is of cardinal importance to remember that the order was vacated at the request of the applicant's counsel.  There is no reason to think that counsel was not acting on instructions and in his client's best interests.  The psychiatric material casts no doubt on the applicant's ability to give such instructions.  This was a forensic decision like any other.  I venture to say that it is a decision that is readily understandable, having regard to the provisions of the legislation.  There is no ground of appeal impugning counsel's conduct or professional judgment.  The position is very different from R. v. Khallouf[1], where, among other things, the accused elected to proceed without counsel.[2]

   [1][1981] V.R. 360.

   [2]See 360, lines 42 – 52.

1. It is unnecessary to examine Mr Thomas's argument that Dr Walton's opinion afforded an insufficient factual basis for the judge to vacate the order. The combination of his Honour's reservations about Dr Bell's report, Dr Walton's subsequent opinion, albeit qualified, and the course requested by the applicant's counsel was enough to disable the condition precedent in s.9(1). In other words, the judge was entitled to say, "It no longer appears to me that there is a real and substantial question as to the defendant's fitness to stand trial." In my opinion that is all his Honour meant by the determination referred to in [8] above. Nothing occurred in April 2004 to oblige Judge Ross to take a different view.

1. I have said nothing about the plea of guilty, because it would not, in itself, have been an insuperable bar.[3] I accept that, if the condition precedent in s.9(1) or (2) had been, or remained, enlivened, the proviso to s.568(1) of the Crimes Act 1958 would not have applied.[4] 

   [3]See R. v. Coffey (2003) 6 V.R. 543 at 545 [6] and the cases there cited.

   [4]See Kesavarajah v. R. (1994) 181 C.L.R. 230 at 248.

1. I would refuse the application.

CHERNOV, J.A.: 

1. I agree.

VINCENT, J.A.: 

1. I agree.

CALLAWAY, J.A.: 

1. The order of the Court is -

   Application for leave to appeal against conviction refused.

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