R v NCT

Case [2009] VSCA 240 23 October 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 647 of 2008

THE QUEEN
	v
NCT

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JUDGES	NETTLE and NEAVE JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 September 2009
DATE OF JUDGMENT	23 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 240
JUDGMENT APPEALED FROM	R v NCT (Unreported, County Court of Victoria, Judge Sexton, 1 May 2007)

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CRIMINAL LAW – Sexual offences – Fitness to stand trial – Appeal – Whether finding of fitness to stand trial justiciable as appeal against conviction under Division 2 of Part VI of Crimes Act 1958 – Kesavarajah v The Queen (1994) 181 CLR 230, applied; Eastman v The Queen (2000) 203 CLR 1, considered – Directions to jury – Consideration by jury of competing expert opinions – Directions as to application by jury of common sense – R v Gemmill (2004) 8 VR 242, followed – Consideration by jury of criteria of fitness to stand trial – Directions as to satisfaction of alternative criteria prescribed by s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Evidence – Propensity Evidence – Uncharged acts – Sexual interest – Directions to jury – Whether judge sufficiently warned jury of need to be satisfied of uncharged acts beyond reasonable doubt – R v Sadler (2008) 20 VR 69, referred to – Verdict – Whether unsafe and unsatisfactory – Competing expert opinions – Whether jury could reasonably be satisfied on balance of probabilities of applicant’s fitness to stand trial – M v The Queen (1994) 181 CLR 487, applied – Application for leave to appeal dismissed – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Part 2; Crimes Act 1958, ss 567, 570 A, B and C.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for the Public Prosecutions
For the Applicant	Mr J P Wheelahan	Victoria Legal Aid

NETTLE JA:

Following a trial before the County Court at Melbourne, on 8 April 2008 the applicant was convicted of nine counts of indecent act with a child under 16 (Counts 3, 4, 5, 6, 12, 13, 14, 16 and 17); four counts of incest (Counts 7, 8, 9 and 15); and two counts of attempted incest (Counts 10 and 11) and, after a plea in mitigation of penalty, on 1 May 2008 he was sentenced thereon to a total effective sentence of eight years and 10 months’ imprisonment with a non-parole period of six years and 10 months. He now seeks leave to appeal against conviction.

Grounds 1, 2, 4 and 6 – Whether finding of fitness to stand trial appellable

Grounds 1, 2, 4 and 6 are all directed to impugning the validity of a finding, made before trial under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, that the applicant was fit to stand trial.

Before turning to the detail of…

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.

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Details

AGLC: R v N C T [2009] VSCA 240
Case: [2009] VSCA 240
Decision Date: 23 October 2009

CaseChat Overview and Summary

The case of R v NCT involved an appeal by the applicant against a decision to find him fit to stand trial on charges of sexual offences. The matter was heard in the Supreme Court of Victoria, Court of Appeal. The primary issues before the court were whether the finding of fitness to stand trial was justiciable as an appeal against conviction and whether the trial judge's directions to the jury concerning the assessment of fitness to stand trial and the consideration of competing expert opinions were adequate and appropriate. Additionally, the court had to determine whether the jury's verdict was unsafe and unsatisfactory.

The court began by addressing the justiciability of the appeal, concluding that the finding of fitness to stand trial was indeed justiciable as an appeal against conviction, in line with the principles established in Kesavarajah v The Queen and Eastman v The Queen. It was determined that the trial judge's directions to the jury regarding the evaluation of competing expert opinions and the application of common sense were in accordance with the precedent set in R v Gemmill. Furthermore, the court found that the trial judge had adequately directed the jury on the criteria for determining fitness to stand trial, referencing the relevant statutory provisions. The court also examined whether the jury was appropriately warned about the necessity of being satisfied beyond reasonable doubt regarding uncharged acts, referencing R v Sadler. Ultimately, the court found that the jury could reasonably be satisfied on the balance of probabilities that the applicant was fit to stand trial, applying the principles from M v The Queen.

Consequently, the court dismissed the applicant's application for leave to appeal. The appeal was deemed to be without merit, and the original decision finding the applicant fit to stand trial was upheld. The court's final orders were that the application for leave to appeal was dismissed, and the decision to find the applicant fit to stand trial remained in effect.

Orders