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…

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

Case: [2022] ACTSC 33
Decision Date

CaseChat Overview and Summary

In the case of R v Victors, the court was required to decide whether the accused, an 80-year-old man with Alzheimer's and vascular dementia, was fit to plead to the charges of historical sexual assault against his daughters. The Crown sought an order for the accused to be examined by a psychiatrist, while the accused's legal representative raised concerns about the appropriateness of the timing of the Crown's application.

The court considered the legal issues surrounding the timing and appropriateness of the Crown's application under section 315 of the Crimes Act 1900 (ACT), particularly in light of the previous order made under section 314. The court also examined the reports of two doctors, Dr Mary Kulh and Dr Susanne Pulman, who had differing opinions on the accused's fitness to plead. The court noted that the accused had declined to be interviewed by Dr Pulman, resulting in some limitations in her report. Ultimately, the court decided that the application was appropriate given the delay in the proceedings, the age of the accused, and the importance of addressing the fitness to plead issue in a timely fashion.

The court made an order under section 315 of the Crimes Act 1900 (ACT) for the accused to be examined by a psychiatrist or health practitioner nominated by the Crown as soon as practicable. The court also made an order under section 314 for the issue of the accused's fitness to plead to be reserved for investigation, and listed the matter for directions on 10 March 2022. The accused was excused from attending the directions listing as long as he was legally represented.

Orders