R v Dutton
[2008] VSC 182
•14 May 2008
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1470 of 2007
| THE QUEEN |
| v |
| ANTHONY JOHN DUTTON |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 14 May 2008 | |
DATE OF RULING: | 14 May 2008 | |
CASE MAY BE CITED AS: | R v Dutton | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 182 | 1st revision 21/7/08 |
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CATCHWORDS: Criminal Law – Mental Impairment – On 3 March 2008 matter set down as a one day consent mental impairment trial on 7 May 2008 – as at 1 April 2008 the DPP wanted a further psychiatric report – Application by Crown for adjournment a few days prior to 7 May 2008 – Application by counsel for the accused for court to grant a stay or conditional stay on the basis of abuse of process – Conditional stay refused – DPP directed to pay costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Beale | Ms A. Cannon Solicitor for Office of Public Prosecutions |
| For the Accused | Mr D. Edwardson QC with Ms N. Gobbo | Grigor Lawyers |
HIS HONOUR:
The deceased Angelique Theresa D’Agostino met her unfortunate death at the hands of the accused on 27 June 2006. He was shortly thereafter charged with her murder.
On 12 April 2007 he was committed for trial for that offence to this court. There then followed a series of mentions before Her Honour Justice King on 2 May 2007, 19 July 2007, 1 November 2007, 11 December 2007 and 3 March 2008.
The general tenor of those mentions was that the question of mental impairment was being investigated. That culminated with an indication from Mr Ray Elston SC, Senior Crown prosecutor, on 11 December 2007 that the matter was likely to resolve. It is reasonable to conclude that he meant that the matter would proceed as a consent mental impairment.
On Monday 3 March 2008, Mr Alan Hands of counsel who appeared for the Director said that the matter could be set down as a one day consent mental impairment on 7 May and added the words “but we would like liberty to apply in case something comes out of the woodwork”. Apart from the proposition that liberty to apply is a notion not often heard in criminal cases, the impression given was that unless something of real consequence occurred, the matter would proceed in that way. The passages which follow seem to confirm that.
Mr Hands: “Your Honour, we only received this report on Thursday afternoon, we have not had a chance to fully consider it. We are quite happy with it being set down for one day consent mental impairment on 7 May, but we would like liberty to apply in case something comes out of the woodwork.”
Her Honour: “There is always liberty to apply in these matters but it would seen to me that a sensible resolution has been reached.”
Mr Hands: “Yes.”
Her Honour: “And hopefully you will have the doctors available. You won’t need a jury, will you, you can do this without a jury?”
Mr Hands: “No jury.”
Her Honour: “All right. I will adjourn this until 7 May for at this stage a consent mental impairment.”
Ms Gobbo: “Your Honour, could I just ask one indulgence, that Your Honour indicates to Mr Dutton what that means.”
Her Honour: “In what way.”
Ms Gobbo: “Or allow me to?”
Her Honour: “Yes.”
Ms Gobbo: “Mr Dutton, what that means is 7 May will be a trial date.”
Accused: “Yes.”
Ms Gobbo: “And as you have been previously advised it’s highly likely that it will be a consent mental impairment matter, that is consent by the DPP.”
Accused: “Yes.”
Ms Gobbo: “If there is ‑ ‑ ‑“.
Accused: “I understand that.”
Ms Gobbo: “And if there is any difficulty with that we will come back before Her Honour before 7 May.”
Accused: “Okay, thank you.”
Ms Gobbo: “Thank you, Your Honour.”
Her Honour: “It’s not anticipated that there will be any problems.”
Accused: “Thank you, Your Honour.”
Her Honour: “Thanks very much.”
On or about 1 April 2008, the Director of Public Prosecutions decided he wanted a further report from Professor Mullen, one of the most senior, if not the most senior, forensic psychiatrist in this State. The necessary implication is that the Director had decided that unless Professor Mullen said the defence of mental impairment was available, he would not allow the matter to proceed as a consent mental impairment.
The extent to which he knew what had been said to Justice King on 3 March 2008 is not shown on the material.
There are two matters which are then clear. No further examination of the accused could take place without his consent, that is, as soon as an attempt was organised to make such an examination, the possibility of the Crown changing its position would have been known, however, no attempt was made to inform either the defence or the court of the change of position. In any event, for professional reasons Professor Mullen could not carry out the examination. It was discovered that another forensic psychiatrist was available at the end of April. Presumably it continued to be the Director’s view that the matter could not proceed by consent without a further report.
The change in position was communicated to those representing the accused on or about 1 May 2008; at some point after that the matter was listed before me for mention on 6 May 2008. I adjourned the case to 7 May 2008, being the trial date, to allow senior counsel for the accused to attend before me on that day and make submissions. I further adjourned the matter until today to give the Crown the opportunity to put before me matters on affidavit as to why the Crown’s position had changed.
I have received an affidavit from the Crown instructor which I have marked Exhibit 1. Although it fairly sets out the chronology of matters, it does not seem to me that it takes the matter further on what the reason is for the change in the Crown position.
Senior counsel, Mr Edwardson QC, on behalf of the accused submitted to me on 7 May 2008 that I ought stay these proceedings or conditionally stay them as an abuse of process.
I do not doubt that I have the power to grant such relief in general, however, whether I sensibly have such a power in a case such as this is moot. The difficulty which arises is what relief could possibly be given. It does not seem to me that under the rubric of abuse of process or a stay so grounded that I would have the power to grant a stay until such time as the Director agreed to a consent mental impairment. That is a matter that would be beyond power. I simply would not have the power to do so.
It is much the same, although not completely analogous, with any right that an accused person would have to change their plea up to any time that they are arraigned, at least properly arraigned before a jury panel, that is, the court does not have power to enforce the plea.
Senior counsel had put to me that the case of Rona v. District Court of South Australia & Anor and the Director of Public Prosecutions v. District Court of South Australia & Rona (1995) 63 S.A.S.R. 223 was authority for the proposition of power to grant a conditional stay. As I say, I do not doubt that I would have power to grant a conditional stay in ordinary circumstances but doubt that I could do so in this case.
It seems to me that the only basis of granting a stay would be if I had come to the conclusion that the conduct of a trial was necessarily unfair. That is the proposition to be distilled from Jago v. District Court of New South Wales (1989) 168 C.L.R. at p.23.
I say that because an agreement by the Crown that a matter proceed by way of consent mental impairment is not the end of the matter. It would be open for any judge before whom such a matter proceeded to not find the defence had been made out and to order a trial before a jury. So to that extent, the right conferred on an accused person that arises in a consent mental impairment situation is a limited one and that is the position following from s.21(4) of the Crimes (Mental Impairment & Unfitness to Be Tried) Act 1997. The subsection is in the following terms:
“If a person is charged with an indictable offence and before the empanelment of a jury the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and (a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment may direct that a verdict of not guilty because of mental impairment be recorded; or (b) if the trial judge is not so satisfied must direct that the charge for the offence be tried by a jury.”
It simply follows that a reading of the section makes it clear that the right that an accused person has pursuant to that section is a limited one.
It is for those reasons and the reason stated above as to my lack of power to force the Director to abide by the agreement that he may or may not have reached that I would not grant a conditional stay.
That leaves the question of costs. There are two things to be said about the question of costs. One is it seemed to me that in argument Mr Beale who appeared on behalf of the Director conceded that it would have been appropriate for some contact to have been made with the parties at a much earlier date and a date close to 1 April 2008.
The question then arises as to the bona fides of the Crown in all the circumstances of the case. One of the things that might have occurred in this case is that Professor Mullen might have been available and might have been available at a date in early April, and had he been, the matter that is now causing such great angst to the accused and to the court would have been completely obvious because arrangements needed to be made with the accused man’s legal representatives to give rise to the possibility of any examination. In those circumstances I am prepared to accept that the action of the Crown is in all the circumstances bona fide. I do not accept, however, that it was appropriate or necessary in any of the senses that it be understood, and I direct that the Director of Public Prosecutions pay the costs of the accused for the hearings on May 6 2008, May 7 2008 and today.
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