R v Victors (a pseudonym)
[2022] ACTSC 33
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Victors (a pseudonym) |
Citation: | [2022] ACTSC 33 |
Hearing Date: | 2 March 2022 |
DecisionDate: | 2 March 2022 |
Before: | Norrish AJ |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in Proceeding – Crown seeks that the accused be examined by Crown psychiatrist – question as to accused’s fitness to plead – historical sexual assault offences – where accused suffers from Alzheimer’s and vascular dementia – question of fitness to plead reserved for investigation – order that accused be examined by Crown psychiatrist – appropriateness of order before investigation hearing commences |
Legislation Cited: | Crimes Act 1900 (ACT), ss 314, 315, 315A |
Cases Cited: | R v Al-Harazi (No 5) [2017] ACTSC 61 |
Parties: | The Queen ( Crown) Dan Victors (a pseudonym) ( Accused) |
Representation: | Counsel K Marson ( Crown) T Taylor ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Accused) | |
File Number: | SCC 21 of 2021 |
NORRISH AJ:
Introduction
The Crown makes an application, returnable today, that the accused be examined by a Crown expert nominated by the Crown by name at the present time or another expert on behalf of the Crown as soon as practicable pursuant to section 315(2)(c) of the Crimes Act 1900 (ACT) (“The Act”). It also seeks any other orders the court considers appropriate.
The accused has been brought before this court on an indictment alleging 15 counts of various types of sexual assault committed upon complainants, who are his daughters. The matter raised the question of the appropriateness of making an order under s 315 of the Act in circumstances where there has not been an order previously made pursuant to s 314 of the Act.
Division 13.2 of the Act deals with the issue of unfitness to plead and particularly, at s 314, it is provided that if a question is raised in the Supreme Court as to the issue of a person's fitness to be pleaded, “… and the court is satisfied that there is a real and substantial question about the defendant's fitness to plead, the court must reserve the question for investigation (that is the issue of the fitness to plead) under this division.”
In other words, s 314 engages the jurisdiction of the court pursuant to other provisions in div 13.2 of the Act. The Crown, in its application, did not seek an order under s 314 and no order pursuant to that section had been previously sought.
There are some interesting issues that arise in relation to the timing of the Crown’s application in light of the current state of proceedings. But it was apparent to me, and it certainly was not opposed by Mr Taylor for the accused, that an order had to be made pursuant to s 314, whatever else was done today, because the defence have been on notice, at least since shortly after 18 August 2021, that a qualified medical practitioner has expressed opinions about the fitness of the accused to plead to the charges in the indictment, indicating that the accused is not fit to plead as a result of what is opined to be mixed Alzheimer's and vascular dementia.
I will not go into the precise basis of the opinion expressed by the geriatrician, Dr Mary Kulh in her report of 18 August 2021, but it would seem to me that ultimately her view is because of his Alzheimer's and vascular dementia and due to his memory impairment, he would be a “challenging defendant in court proceedings”.
It is a little hard to understand the ultimate effect of Dr Kulh's report given the way that various matters are expressed, but certainly her report gives rise to the fact that there is a substantial question about his fitness to plead to be determined by the court. Hence, based upon the report of Dr Kulh I made an order pursuant to s 314 earlier today.
The interesting problem, if I could call it that, arising out of the current application is the issue of whether the timing of the application is appropriate in all the circumstances of the matter, noting s 315A of the Act. Section 315 states that “if a court reserves the question for investigation – that is, the issue of fitness to plead – the court may make various orders and proceed with an investigation under [the] division”. Amongst the orders that it may make pursuant to section 315A(2) is the order requiring the defendant to be examined by a psychiatrist or other health practitioner.
What is interesting about the wording of that subparagraph in s 315 of the Act is that it seems, in the practical world of dealing with fitness to plead, to be a provision which might be viewed as arising for consideration in circumstances where it is clear to the legal representatives of an accused person that he or she is unfit to plead, but the medical consideration of that matter had not been fully undertaken and orders were required to try and achieve some opinion from a suitably qualified psychiatrist or “health practitioner”. That is not the case in the context of the current state of the Crown application. This is because not only does the Crown have access to the report of Dr Kulh – prepared back in August 2021 – and a further report of hers of 10 November 2021 clarifying certain matters arising out of her previous report, it now also has the report of Dr Susanne Pulman who prepared a report dated 31 January 2022.
In her report, Dr Pulman examines various aspects of the contents of Dr Kulh's report and comments upon material available to her from that report and related documentation. It is clear from reading Dr Pulman's report, in my view, that she is of the view based upon information available to Dr Kulh and having regard to the opinions expressed by Dr Kulh, that,to use my words, it is unlikely that the accused is unfit to plead. Whilst the Crown sought to submit to me that that is not what she says in her report, it must be fairly said that on every opportunity to comment upon matters upon which Dr Kulh had based her opinions, Dr Pulman sought to differ in some material respect, from conclusions at which Dr Kulh arrived.
That having been said, in fairness to Dr Pulman, she said on a number of occasions by reference to opinions expressed by Dr Kulh, that she would require further information in light of the fact that she was unable to interview the accused. Her report says in respect of the issue of “Limitations” at page 2 of the report of 31 January 2022:
As a result of [the accused] declining to be interviewed and assessed the conclusions and opinions expressed in this report are limited to my review of the documentation and records referred to above. Should [the accused] be available for interview and psychometric testing, the opinions contained herein may change as a result of such assessment.
After reviewing material available to her, Dr Pulman makes comments such as, for example, at page 5: “Further assessment involving tasks designed to measure [the accused’s] abstract reasoning, concept formation and problem solving are required.” In relation to the issue of the accused's difficulties in “giving instructions”, Dr Pulman said at the bottom of page 5: “A comprehensive assessment of [the accused’s] working memory and immediate and delayed verbal memory has not been conducted.” And so it goes on. In other words, the opinion Dr Pulman expresses about matters arising from the material upon which Dr Kulh expressed her opinions, or Dr Kulh's opinions themselves, are subject to qualifications expressed by Dr Pulman given the fact that she had not the opportunity to conduct full testing of the accused.
I pause for a moment to point out a matter raised fairly by Mr Taylor in the context of a case concerned with fitness to be tried. He has raised difficulties that he has had in obtaining instructions from his client. Those difficulties are not articulated and there is no evidence of them. I have raised with him the practical issue of the need for evidence in relation to these matters to be before the court if it to be relevant to the issue of whether the accused is fit to be tried or fit to plead.
I accept as a practical problem based upon the opinions expressed by Dr Kulh that there would be difficulties in certain respects. Mr Taylor told me, as I understood what he said to me, that he had advised the Crown that his client did not wish to be interviewed for the purposes of further assessment. So, it is not a case where the Crown's expert has actually sat down with the accused and been told directly by him, or through an intermediary in her presence, that he did not wish to be interviewed.
These are practical matters that may or may not need to be addressed some time in the future. Be that as it may, it is quite clear that there are qualifications in Dr Pulman's report that arise from the fact that the accused declined to be interviewed. This brings us back, if I may, to the issues that arise under the legislation.
The Crown, in arguing that the application for the order ought be made relies upon a decision of Refshauge J in R v Al-Harazi (No 5) [2017] ACTSC 61. I have read that judgment to the extent that certainly its contents up to [28] or [29] are relevant to what I am concerned with here. It is quite clear that the judgment is a judgment in relation to the issue of whether the accused is fit to plead.
In the context of dealing with that issue his Honour discussed the history of the matter and particularly the powers available to the court under s 315A. The Crown sought comfort from s 315A as supporting the basis for making an order sought by the Crown now pursuant to s 315 even though I have just made an order directing that there be an investigation as to the accused's fitness to plead.
The matter has not proceeded to the point where a relevant order can be made under s 315A of the Act. In s 315A, it specifically notes that on an investigation into a defendant's fitness to plead, the court, if it considers that it is in the interests to do so, may either call evidence of its own initiative or require the defendant to be examined by a psychiatrist or other health practitioner, or, require the results of the examination to be put before the court.
That provision, to my mind, has no relevance to the matters I am now considering because the facts of the matter are that the court, at the point that an order is made under s 315A is, firstly, conducting the investigation of the defendant's fitness to plead (which I am not), and, secondly, is in a position to determine whether it is “in the interests of justice” for a relevant order to be made for a person to be examined by a psychiatrist or another health practitioner.
Interestingly, as the Crown pointed out to me, Refshauge J anticipated the fact that there are difficulties that clearly will arise when a person declines to be interviewed, notwithstanding an order made by the court – at [23] – in the context of dealing with powers under s 315A of the Act. His Honour said:
It can cause practical problems if an accused's fitness is in question and will not cooperate with the psychiatrist. There is not much that can be done if that cooperation is simply not forthcoming.
However, it was still available to make an order under s 315A(1)(b) of the type that I have just referred to. The practical purpose of making an order pursuant to s 315A when it is known that a person will not cooperate is a matter that I need not consider at this particular point of time.
It would seem to me that one of the issues that must arise in relation to whether it is “in the interests of justice” to make a relevant order is to determine whether there is any practical purpose in making such an order if there be a history of declining to cooperate with a psychiatrist nominated by a particular party, either by the accused or the defence.
The order sought by the Crown pursuant to s 315 is, in reality, quite unusual given the usual circumstances that arise in relation to fitness to plead cases. It seems to me that s 315, on one view of it, is a section designed to try and obtain medical evidence in circumstances where, at that point, the available information as to whether a person is fit to plead is based upon, for example, observations made of the accused person by his or her legal representatives, but without the opportunity of obtaining medical evidence.
Of course, in those circumstances, where the defence would seek, for example, to adjourn a matter for further enquiry in relation to the matter, it is obviously the case that the Crown ought to be entitled to obtain evidence in relation to the same subject matter if it can assist the court. It is not uncommon in a practical way when these matters usually unfold, when a genuine issue of fitness to plead is raised, that experts retained by the two sides agree with one another.
That having been said, as unusual as it seems to me that the application before me currently is, it is open to the court to make an order under s 315 in circumstances where the jurisdiction of the court to conduct the relevant investigation as to whether the accused is fit to plead has been engaged. The practical problem that is most at large in considering this application is the delay that has occurred up until the present time to get to the present situation where today, finally, there is now an order made under s 314.
Nothing I say is in criticism of Mr Taylor or anybody else's professionalism, but once the report of the geriatrician, Dr Kulh, had been obtained it was, in my view, incumbent upon either the Crown or the defence to make an application for the matter before the court pursuant to s 314 to enable the matter to be advanced.
It is to be borne in mind that these allegations against the accused, as I understand them, are historical matters. They relate to allegations of sexual assault committing over a period of time, as I would understand it, between 1980 and 1988. The accused is an 80‑year-old man with various health issues. He is said to suffer from conditions which clearly, if existing, will lead to further deterioration over a period of time.
The observations made by the Crown and the information available to the court from the evidence in support of the application concerning the need for expedition to ensure justice is done are soundly based. If I was not to make an order pursuant to s 315 the matter as currently standing would come before the Registrar for directions next week as I understand it, on 10 March.
The matter would then be listed before a judge. A judge might then be requested to make an order pursuant to s 315A which would, of course, occur at a time further down the track from where we are at the present time. If it transpired that I made an order pursuant to s 315 and it became plain that the accused would not cooperate with the expert nominated by the Crown, then that would be a relevant matter for a judge to consider if a renewed application was made pursuant to s 315A.
It seems to me that one of the matters that would need to be taken into account, as I said earlier, in relation to whether it was in the interests of justice to make such an order, would be the question of the cooperation of the accused. The report of Dr Pulman is the subject of some criticism by learned counsel for the accused which I am not in a position to comment upon in a definitive way.
It is correct to say that there is information contained within the Crown's report, which is based upon the evidence available to Dr Kulh, that is at odds with the opinions expressed by her. What weight one would give to those differences of opinion expressed between Dr Kulh and Dr Pulman without any further opportunity to examine the accused by the Crown's expert would be a matter required to be addressed by the judge ultimately determining whether the accused was fit to plead, as no doubt will be required sometime in the future.
I have taken the view that there is power under s 315 of the Act for an order to be made of the type sought by the Crown acknowledging the practical difficulties of enforcing that particular order. But I also acknowledge the fact that if a practical difficulty arises such as to prevent any further consultation with the accused occurring, it will inform the ability of the court to determine what evidence will be available to it in the ultimate determination of the issue of whether the accused is fit to plead.
Thus, in the circumstances of the matter, noting the delay in getting to this point, noting the age of the accused, noting the importance of these matters being addressed in a timely fashion, it seems to me a practical solution to the difficulties raised by both the parties that I should make an order pursuant to s 315 as sought by the Crown.
The detail of that I will settle upon shortly. But acknowledging, as I have said to Mr Taylor, that for the purposes of complying with order it would be open, of course, for the accused's solicitor to attend upon any consultation if the accused so was capable. If he was not so capable as to attend upon any consultation, to advise the Crown accordingly, and that would assist the Crown to inform itself as to what further action should be taken in relation to the matter when the matter comes before a judge of this court.
In making the decision I have made that an order should be made pursuant to s 315 of the Act, I have noted what Mr Taylor has said. His reservations about Dr Pulman's report are really matters for comment in the context of determining the wider issue of whether the accused is fit to plead. They are not matters that prohibit the court from making an order pursuant to s 315.
Particularly, I do not believe that it is appropriate for me to be determining who the Crown should nominate unless there be before me some specific matter that would suggest that the opinion of the doctor could be characterised as biased or compromised by some matter such as a conflict of interest. That does not arise on my reading of Dr Pulman's report.
Whether there are legitimate criticisms to be made upon the basis upon which she has reached particular conclusions is not a matter that I can resolve at this time and they may need to be resolved by addressing the wider issue ultimately to be concluded by the court pursuant to the division of the Act to which I earlier referred.
Orders
The orders of the Court are:
1. Pursuant to s 314(3) the Court is satisfied that there is a real and substantial question about the defendant’s fitness to plead and the Court reserves the question of his fitness to plead for investigation pursuant to Division 13.2 of the Crimes Act 1900 (ACT).
2. That the accused be examined by a psychiatrist or health practitioner nominated by the Crown as soon as practicable pursuant to s 315(2)(c) of the Crimes Act 1900 (ACT).
3. The matter be listed before the Registrar for directions at 9am on Thursday 10 March 2022.
4. The accused is excused from attending the directions listing so long as he is legally represented.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish. Associate: Date: 10 March 2022 |
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