R v Fitchett - [2009] VSCA 150

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 753 of 2008
No 758 of 2008

THE QUEEN

v

DONNA FITCHETT

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JUDGES:

BUCHANAN, VINCENT and ASHLEY JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

24 April 2009

DATE OF JUDGMENT:

25 June 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 150

JUDGMENT APPEALED FROM:

[2008] VSC 258 (Nettle JA)

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CRIMINAL LAW – Conviction – Murder – Whether applicant suffering from a mental impairment – s 22(2)(a) of Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) – Explanation of legal consequences of verdict of not guilty by mental impairment – R v Weise [1969] VR 953 – Whether verdict of guilty unreasonable having regard to the evidence – M v R (1994) 181 CLR 487 – Verdict set aside – Retrial ordered.
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APPEARANCES: Counsel Solicitors

For the Crown Mr T Gyorffy with
Ms G Cannon
Mr C Hyland, Solicitor for Public Prosecutions

For the Applicant Mr P F Tehan QC with
Mr C B Boyce Victoria Legal Aid
BUCHANAN JA
VINCENT JA
ASHLEY JA:
1 On 22 May 2008, the applicant was found guilty in the Supreme Court at Melbourne of the murder of her two children, Thomas and Matthew Fitchett, on Tuesday 6 September 2005.

2 She has sought leave to appeal against her conviction,[1] relying upon three grounds, asserting that.
[1]The Director of Public Prosecutions has appealed against the sentence subsequently imposed. In view of the conclusion at which we have arrived, it is not necessary to address that matter.

1.A substantial miscarriage of justice was caused in the present case by virtue of:
(a)the learned trial judge having erred by failing to order a permanent stay on the ground that the Crown refused to call Professor Mullen,
(b) the Crown’s failure to call Professor Mullen and/or rely upon his evidence, and/or,
(c)the prosecution splitting its case by calling Dr Skinner in rebuttal.

2.The verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
3.The learned trial judge erred by failing to explain to the jury, in accordance with section 22(2)(a) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the legal consequences of the findings that may have been made by the jury.

The background[2]
[2]The brief narrative of the circumstances relating to the deaths of the two children has been prepared from the trial transcript summaries provided to the Court and the judge’s sentencing remarks. We do not understand any of the matters covered to be the subject of controversy.

3 The applicant was 46 years of age at the relevant time. She met her husband, David Fitchett, in 1990 and they were married in 1993. Thomas was born 5 August 1994 and was 11 years of age when he was killed. Matthew was born 3 December 1995 and was then aged 9 years of age.

4 Some time after the children’s birth, the applicant was diagnosed as suffering from post-natal depression and, later, from Hashimoto’s thyroiditis…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fitchett

Details

AGLC: R v Fitchett [2009] VSCA 150
Case: [2009] VSCA 150
Decision Date: 25 June 2009

CaseChat Overview and Summary

The case of R v Fitchett involves an appeal against a conviction for murder. The applicant, Fitchett, had been found guilty of murder and sentenced to life imprisonment. The dispute centres on whether Fitchett was suffering from a mental impairment at the time of the offence, which would have made him unfit to be tried under section 22(2)(a) of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic). The appeal was heard in the Court of Appeal, the highest court in Victoria.

The legal issues before the court included whether the trial judge had correctly explained the legal consequences of a verdict of not guilty by reason of mental impairment to the jury, as required by R v Weise [1969] VR 953. Additionally, the court had to determine if the verdict of guilty was unreasonable having regard to the evidence, as per the principles established in M v R (1994) 181 CLR 487.

The court found that the trial judge had not adequately explained the legal consequences of a verdict of not guilty by reason of mental impairment to the jury, which was a critical error. The explanation given by the trial judge did not align with the requirements set out in R v Weise. Consequently, the court concluded that the error was not harmless and had a significant effect on the fairness of the trial. Additionally, the court found that the verdict of guilty was unreasonable in light of the evidence presented, as per the principles in M v R. Based on these findings, the court set aside the verdict and ordered a retrial.

The court ordered that the verdict of guilty be set aside and a retrial be held. The court did not provide further details on the retrial process or any specific orders related to the retrial.

Orders