Tyrell Carson (a pseudonym)[1] v The Queen
[2020] VSCA 202
•24 July 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0094
| TYRELL CARSON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, KYROU and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 July 2020 |
| DATE OF JUDGMENT: | 24 July 2020 |
| DATE OF REASONS: | 7 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 202 |
| JUDGMENT APPEALED FROM: | DPP v [Carson] (Unreported, County Court of Victoria, Judge Davis, 4 May 2020); DPP v [Carson] (No 2) (Unreported, County Court of Victoria, Judge Higham, 13 July 2020) |
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CRIMINAL LAW — Interlocutory appeal — Indictment charging incest and attempted incest — Applicant with advanced vascular dementia — Applicant unfit to be tried — Ruling that s 95(6) of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 inserted by COVID-19 Omnibus (Emergency Measures) Act 2020 valid — Ruling that special hearing be by judge alone — Whether application brought by attorney under power pursuant to enduring power of attorney competent — Whether presumption against retrospectivity applied — Whether Charter of Human Rights and Responsibilities Act 2006 infringed — Leave to appeal refused — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 11, 12, 15, 16, 17, 18, 95, 101, 121; COVID-19 Omnibus (Emergency Measures) Act 2020 s 30; Powers of Attorney Act 2014; Charter of Human Rights and Responsibilities Act 2006 ss 8, 27; Fedele v The Queen [2017] VSCA 363; Rodway v The Queen (1990) 169 CLR 515; RDM v Director of Public Prosecutions [1999] 2 VR 270 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Mylonas | Gallant Law |
| For the Respondent | Mr A Grant | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Attorney-General (Intervenor) | Ms S Fitzgerald | Victorian Government Solicitor |
PRIEST JA
KYROU JA
T FORREST JA:
Introduction
This application for leave to appeal under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) concerned two interlocutory decisions made by judges of the County Court: first, a ruling of Judge Davis delivered on 4 May 2020 (‘the first ruling’); and, secondly, a ruling of Judge Higham, delivered on 13 July 2020 (‘the second ruling’).
As will appear, the correctness of both rulings turns on the validity of certain provisions of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (‘CMI Act’), introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020 (‘OEM Act’) in response to the current pandemic affecting this State.
At the conclusion of oral argument by the applicant’s counsel on 24 July 2020, we refused leave to appeal with respect to both rulings. These are our reasons for doing so.
Overview
Following an interview conducted on 27 March 2018, police charged the applicant with offences of incest and attempted incest, allegedly perpetrated against his disabled daughter between 1978 and 2013, when she was aged between 15 and 49 years. On 12 July 2019, the applicant was committed to stand trial in the County Court. In the result, an indictment was filed charging the applicant with incest (nine charges) and attempted incest (two charges).
Due to the applicant’s advanced vascular dementia, a real and substantial question arose as to his fitness to be tried. As a result, an investigation into his fitness was conducted in accordance with ss 11 and 12 of the CMI Act; and, on 4 February 2020, a jury empanelled in the County Court found the applicant unfit to be tried. Given that finding, s 12(5) required the Court to hold a special hearing within three months. Section 12(5) is in the following terms:[2]
(5) If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing under Part 3 within 3 months.
[2]Emphasis added.
In accordance with s 12(5), the judge listed the necessary special hearing to proceed on 27 April 2020, the three month ‘deadline’ provided for expiring on 3 May 2020. The special hearing, as then contemplated by the CMI Act, was to be by judge and jury.
By s 15, the purpose of a special hearing is to determine whether, on the evidence, the accused is not guilty of the offence; or is not guilty of the offence because of mental impairment; or committed the offence charged (or an offence available as an alternative). The effect of s 16 is that a special hearing is to be conducted with a jury ‘as nearly as possible as if it were a criminal trial’. And by virtue of s 17(1), the jury at a special hearing may make findings that the accused: is not guilty of the offence charged; is not guilty of the offence because of mental impairment; or committed the offence charged (or an offence available as an alternative).
Importantly, however, subsequently to the jury’s finding on 4 February 2020 that the applicant was unfit to be tried, and prior to the date listed for the special hearing (27 April 2020), two things of crucial significance occurred. First, in light of the COVID-19 pandemic affecting Victoria, and as a result of ‘Stage Three’ restrictions imposed on 16 March 2020 for reasons of public safety,[3] all jury trials in this State were halted. One of the upshots of this cessation of jury trials was that the date of the applicant’s special hearing effectively was vacated. Secondly, on 25 April 2020 — that is, two days before the date that the special hearing was listed to proceed — the OEM Act came into operation.[4] The OEM Act itself was, as we have said, a response to the COVID-19 pandemic affecting the State.
[3]On 16 March 2020, pursuant to s 198(1) of the Public Health and Wellbeing Act 2008, the Minister for Health declared a state of emergency throughout the State of Victoria arising out of the serious risk to public health from Novel Coronavirus 2019 (2019-nCoV) .
[4]Section 2 provided that the Act ‘comes into operation on the day after the day on which it receives the Royal Assent’. Royal Assent was given on 24 April 2020.
Given these developments, on 24 April 2020 the County Court invited the parties to consider their respective positions and provide written submissions in relation to the further conduct of this matter.
Following the Court’s invitation, in written submissions dated 29 April 2020, and in oral submissions on 30 April 2020, counsel for the applicant, first, sought to challenge the validity of s 95(6) of the CMI Act[5] — to which we will shortly turn — as to the time period within which a special hearing must be held; and, secondly, objected to the special hearing being set down for determination by a jury on any date after 3 May 2020 (that is, three months from the jury’s decision that the applicant was unfit to be tried). He indicated that should the matter be set down for special hearing after 3 May 2020, an interlocutory appeal would be initiated in this Court.
[5]Inserted by s 30 of the OEM Act.
After hearing submissions, Judge Davis found that the newly inserted s 95(6) of the CMI Act is valid, and resolved accordingly to proceed with the special hearing before a jury on 20 July 2020. Pursuant to s 295(3)(b) of the CPA, her Honour also certified that her decision was of ‘sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Thereafter, when it became apparent that it was unlikely — due to the continuing effects of the pandemic — that it would be possible to empanel a jury for the purposes of the special hearing listed for 20 July 2020, the prosecution made an application under s 101 of the CMI Act[6] that the special hearing be conducted by judge alone. The application was heard by Judge Higham, who, on 29 June 2020, pursuant to s 101(1) ruled that ‘it is in the interests of justice that the special hearing be conducted by the judge alone’. In written reasons delivered on 13 July 2020, he said:
In so finding I have particular regard to the following matters.
(i) Part 3 of the [CMI Act] expressly contemplates that those who have been found unfit to stand trial be the subject of adversarial proceedings in the form of special hearings as therein prescribed.
(ii) A clear reading of the [OEM Act] reveals an intended purpose of enabling special hearings to be conducted through the period of the emergency where it may not be possible to empanel a jury.
(iii)There is a most significant if not overriding public interest in the determination of serious crimes such as those alleged against the accused.
(iv)The interests of both the accused and the complainant are best served by the expeditious hearing of the matter by the judge alone.
[6]Inserted by s 30 of the OEM Act.
Judge Higham also certified pursuant to s 295(3)(b) that his decision was of sufficient importance to justify its determination on an interlocutory appeal.
Through his attorney, under power,[7] the applicant sought leave to appeal against Judge Davis’ ruling to extend time for the special hearing, and against Judge Higham’s ruling that the special hearing be by judge alone. As ultimately formulated, the applicant’s three grounds of appeal claimed that there was error:
1. … in holding that s 12(5) [of the CMI Act] was procedural and that the deadline for [a] Special Hearing was capable of extension by s 95(6).
2. … in failing to declare that the immunity to further proceedings afforded to the applicant by s 12(5) [of the CMI Act] had crystallised prior to the enactment of the [OEM Act] by the County Court’s indefinite suspension of Jury trials.
3. … in holding that s 95 [of the CMI Act] is applicable to the applicant in circumstances of retrospective application to the jury verdict on the applicant’s fitness to be tried dated 3 February 2020.
[7]See [15]–[30] below
Preliminary issue: Enduring power of attorney
Before dealing with the substantive issues raised by the application for leave to appeal against the two interlocutory decisions, we need to deal with a preliminary question of whether the application is competent. That question arises because, as we have said, the applicant suffers from advanced vascular dementia and the application has been brought on instructions from his son (‘AB’) pursuant to an enduring power of attorney executed by the applicant on 24 April 2018 (‘Power of Attorney’).
The Power of Attorney is expressed to be made under Part 3 of the Powers of Attorney Act 2014 (‘POA Act’) and as taking effect immediately on its making. Pursuant to the Power of Attorney, the applicant appointed AB as his attorney and authorised him to do ‘anything on [his] behalf that [he] can lawfully do by an attorney’. The applicant appointed another relative as an ‘alternative attorney’ but this appointment is not presently relevant.
The Power of Attorney is in the prescribed form[8] and appears to comply with the requirements of the POA Act. AB appears to be eligible for appointment as an attorney[9] and the Power of Attorney was witnessed by two independent witnesses, one of whom was a practising lawyer. The witnesses certified that, at the time of execution, the applicant ‘appeared to [them] to have decision making capacity in relation to the making of [the] enduring power of attorney’. Also, AB signed a ‘Statement of Acceptance of Appointment’ as attorney, which made the disclosures and gave the undertakings required by the POA Act.
[8]See sch 1, form 1, Powers of Attorney Regulations 2015.
[9]See POA Act s 28.
Part 3 of the POA Act, as in force at the time that the applicant executed the Power of Attorney, deals with enduring powers of attorney. Section 22 provides as follows:
22 Enduring power of attorney
(1) By an enduring power of attorney a person may authorise an eligible attorney to do anything on behalf of the person that a person can lawfully do by an attorney.
(2) Without limiting subsection (1), a person may confine what is authorised to be done by an attorney—
(a)to personal matters only; or
(b)to financial matters only; or
(c)to matters specified in the instrument of appointment.
(3) Despite any rule of law to the contrary an enduring power of attorney is not revoked by the principal, after making the power, becoming a person who does not have decision making capacity for any matters to which the power of attorney applies.
Section 26 of the POA Act sets out matters that a person is not able to authorise an attorney to do on his or her behalf. Those matters include making a will and voting on behalf of the appointor, whom the POA Act describes as the ‘principal’. Section 26 does not prohibit bringing or defending civil or criminal proceedings on behalf of the principal.
Section 22(1) of the POA Act enables a principal to execute a plenary enduring power of attorney, whereas s 22(2) authorises the granting of a limited enduring power of attorney. Both forms of instrument are subject to the exclusions in s 26. A limited enduring power of attorney may be confined to ‘personal matters only’, ‘financial matters only’ or to such other ‘matters specified in the instrument’. Section 3(1) defines ‘personal matter’ as ‘any matter relating to the principal’s personal or lifestyle affairs’ and as including ‘any legal matter that relates to the principal’s personal or lifestyle affairs’. ‘Legal matter’ is defined in the same section as the ‘use of legal services for the principal’s benefit’ or ‘bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the principal, including settling a claim’. There is no indication that the reference to ‘a legal proceeding’ is intended to be confined to a civil proceeding.
The scope of the definitions of ‘personal matter’ and ‘legal matter’ in s 3(1) of the POA Act is not presently relevant because the Power of Attorney is in the form of a plenary enduring power of attorney rather than a limited enduring power of attorney which is confined to ‘personal matters’.
In our opinion, pursuant to s 22(1) of the POA Act, where an enduring power of attorney is expressed to authorise the attorney to do anything on behalf of the principal that the principal can lawfully do by an attorney, such an instrument includes authority to bring or defend legal proceedings. There is nothing in s 22 or the context of the POA Act as a whole that requires such authority to exclude bringing or defending criminal proceedings. On the contrary, as an attorney must ‘act in a way that promotes the personal and social wellbeing of the principal’,[10] and as criminal proceedings often involve the liberty of the principal, there are compelling reasons for construing s 22(1) as encompassing a power to bring or defend criminal proceedings.
[10]POA Act s 21(2)(c).
It follows from the above analysis that the Power of Attorney authorised AB to make this application on behalf of the applicant. Pursuant to s 22(3) of the POA Act, that authority was not revoked when the applicant ceased to have decision-making capacity.
There is nothing in the Guardianship and Administration Act 2019 (‘GAA Act’) that compels a different conclusion.
Under the GAA Act, the Victorian Civil and Administrative Tribunal (‘VCAT’) may make a guardianship order in respect of a ‘represented person’ if it is satisfied that certain criteria are met.[11] Section 38 sets out the powers of guardians under guardianship orders. Unlike s 22(1) of the POA Act, s 38(1) of the GAA Act does not authorise VCAT to confer on a guardian a plenary power to do anything on behalf of the represented person that the represented person can lawfully do by a guardian. Rather, s 38(1) sets out three types of powers that are encompassed in a guardianship order. They are: a power to make decisions about the ‘personal matters in relation to the represented person that are specified in the order’; a power ‘to sign and do any thing that is necessary to give effect to any power or duty vested in the guardian’; and a power ‘to undertake legal proceedings under section 40, if specified in the order’. Section 38(2) provides that VCAT may only specify the power to undertake legal proceedings under s 40 if it is satisfied that the power ‘is necessary or desirable for the purposes of promoting the represented person’s personal and social wellbeing’.
[11]See GAA Act ss 30–31.
Section 40(1) of the GAA Act enables VCAT to specify in a guardianship order that a guardian ‘has power to bring and defend an action or other legal proceeding in the name, and on behalf, of the represented person if the action or other legal proceeding is in relation to a personal matter specified in the order’. The phrase ‘personal matter’ which appears in ss 38 and 40 is defined in s 3(1) as including any legal matter that relates to the person’s personal or lifestyle affairs. The definition of ‘legal matter’ in s 3(1), is relevantly similar to the definition of the same phrase in s 3(1) of the POA Act.
In the light of the differences in the scope of the powers that may be conferred on an attorney under s 22(1) of the POA Act and the powers that may be conferred on a guardian under s 38(1) of the GAA Act, it is not surprising that the POA does not contain a provision that is equivalent to s 40 of the GAA Act. The absence of such a provision does not mean that an enduring power of attorney which confers plenary powers on the attorney does not authorise the attorney to bring or defend legal proceedings, including criminal proceedings. For the reasons we have already articulated, this authority falls within such a power of attorney.
In Fedele v The Queen,[12] the solicitors for the offender purported to file an application for leave to appeal against sentence on his behalf. As the material before the Court indicated that the offender suffered from frontotemporal dementia, at a pre-hearing mention, the Court suggested to the solicitors that they apply to VCAT for a guardianship order authorising the guardian to provide instructions for the pursuit of the application for leave to appeal. VCAT made an order which appointed the offender’s sister as administrator of his estate and authorised her to provide instructions to the solicitors to act on behalf of the offender ‘in his criminal law proceedings in the … Court of Appeal’.[13]
[12][2017] VSCA 363 (‘Fedele’).
[13]VCAT made the order under the predecessor to the GAA, the Guardianship and Administration Act 1986.
Although it appears from the judgment in Fedele that the offender’s sister held an enduring power of attorney from him,[14] the judgment does not disclose whether it was a plenary enduring power of attorney. As the offender’s sister did not rely on the power of attorney as being sufficient to authorise her to pursue the application for leave to appeal on behalf of the offender, the Court did not discuss this issue. Accordingly, it was not necessary for the Court in Fedele to consider the scope of a plenary enduring power of attorney under s 22(1) of the POA Act.
[14]See Fedele [2017] VSCA 363, [10]–[11].
It follows from the above discussion that AB had lawful authority under the Power of Attorney to commence the application for leave to appeal on behalf of the applicant and that the application is competent.
The applicant’s submissions
As best we understood the written contentions of the applicant’s counsel, he submitted that s 12(5) of the CMI Act was not merely procedural, but conferred ‘substantive rights’ upon the applicant. The OEM Act purports retrospectively to affect those substantive rights, and therefore infringes the common law, s 27 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) and s 14(2) of the Interpretation of Legislation Act 1984. Counsel submitted that ‘it is difficult to escape the conclusion that retrospectivity was not in fact considered’ by Parliament, and that ‘no basis exists to infer that Parliament clearly intended retrospective application based solely on s 121 of [the CMI Act]’.
In his written contentions counsel for the applicant also submitted that, by listing the special hearing for 20 July 2020, Judge Davis ‘offended’ the applicant’s ‘human rights’ in the following ways:
a. Firstly, in construing the relevant provisions of the [CMI Act], her Honour was performing the judicial function of statutory interpretation which she must do in accordance with the applicant’s human rights under the Charter generally but specifically s 27 of the Charter; and
b. Secondly, by purporting to make a decision about listing of this matter, which is prima facie an administrative act. When performing administrative acts the Court is considered a public authority under the Charter and s 38(1) of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. To the extent it does so it performs [sic.] a jurisdictional error. Once again it is the application of s 27 that was not considered.
Counsel in writing made the following ultimate submission:
This Honourable Court is invited to declare that s 95 of the [CMI Act] is invalid in its application to the applicant. The remedy of [sic.] this invalidity is that the provision should be read down[15] as only applying to new unfitness verdicts after the commencement date and does not apply to the applicant.
[15]In accordance with the test found in Coleman v Power (2004) 220 CLR 1 per McHugh J at [107]–[110]. (Footnote as in original.)
In oral submissions — the thread of which was at times a little difficult to follow — counsel made the patently untenable submission that the jury’s finding that the applicant was unfit to be tried ‘cleared’ the indictment, so that the charges against the applicant in effect had been finally dealt with.[16] As we followed it, counsel also contended that his client had a ‘right’ which had ‘crystallised’ with the jury’s finding of unfitness either to have a special hearing before a jury — he could not face a special hearing before a judge alone — or face no further proceedings on the indictment. The applicant’s loss of a jury for the purposes of the special hearing created a ‘prejudice’, counsel submitted, and discriminated against the applicant on the basis of disability. Ultimately, counsel said that he did not ‘press’ the appeal against Judge Higham’s decision ‘greatly’, the application being ‘focussed’ on what is ‘happening’ with the invocation of s 12(5) of the CMI Act.
[16]Ordinarily, a reference to the indictment being ‘cleared’ is a reference to the jury’s need — when an indictment contains a count with alternatives — to return a verdict on the main count before considering alternatives: see R v Weeding [1959] VR 298; R v McCready [1967] VR 325.
The respondent’s submissions
The respondent’s counsel submitted in writing that the OEM Act was introduced temporarily to modify the application of the law in response to the challenges posed by the pandemic. It introduced temporary measures in part designed to overcome the fact that it would not be possible to empanel a jury during the pandemic. By s 122 of the CMI Act, the emergency measures will sunset on 23 October 2020.[17]
[17]Section 122 provides that Part 11 ‘is repealed on the day that is 6 months after its commencement’.
Counsel submitted that the CMI Act was introduced to remedy the way in which the law dealt with those found unfit to stand trial. Prior to the CMI Act, once a jury found an accused person unfit to stand trial, there was no process available to test the prosecution’s case, and there was no option available to the court other than to order that the accused be detained at the Governor’s pleasure.
One of the purposes of the CMI Act, set out in s 1(c), is ‘to provide new procedures for dealing with people who are unfit to stand trial’. A special hearing is, unlike a trial, a creature of statute,[18] and has different procedures.[19]
[18]SM v The Queen (2013) 46 VR 464, 469 [15] (Maxwell P).
[19]Ibid 487 [110] (Tate JA).
Of importance, counsel submitted, s 121(2) provides that a special hearing is to be conducted in accordance with ss 95(6) and 101(1) irrespective of when: the offence charged is alleged to have been committed; the criminal proceeding to which the special hearing relates was commenced; and the accused was found unfit to stand trial.
Counsel for the respondent submitted that the County Court has jurisdiction to conduct criminal proceedings by virtue of ss 4(1) and 36A of the County Court Act 1958. The CMI Act merely regulates the exercise of jurisdiction already conferred on the Court. As a result, Judge Davis was correct to find that the provisions in the CMI Act which prescribe when a special hearing is to occur, are procedural only. The provisions of s 12(5) are merely directory, and any breach of them would not invalidate any relevant proceeding. It follows that, if a special hearing does not commence within the prescribed period, the County Court continues to have jurisdiction and the indictment remains valid.
The respondent’s counsel contended that Judge Davis was correct to hold that the effect of the new provisions was that the time period within which a special hearing must occur is six months from the date of the investigation. Judge Davis was also correct to find that no issue of retrospectivity arose as the transitional provisions, particularly s 121(2)(c), clearly demonstrate that Parliament expressly intended that the six month time limit applies, irrespective as to when the accused was found unfit to stand trial. Section 27 of the Charter has no application, since the findings available in a special hearing do not include a finding of guilt. In any event, the relevant provisions are procedural, and the presumption against retrospectivity does not apply to statutes that are merely procedural.[20]
[20]Rodway v The Queen (1990) 169 CLR 515, 521 (‘Rodway’).
So far as Judge Higham’s ruling is concerned, the respondent’s counsel submitted that s 101 of the CMI Act is not discriminatory within the meaning of s 8 of the Charter. Section 101 is not discriminatory because it does not treat people who are found to be unfit to be tried unfavourably. Rather than being discriminatory, the temporary changes to the procedure applicable to a special hearings were introduced for the benefit of people who have been found unfit to plead.
The Attorney-General’s submissions
The Attorney-General intervened pursuant to s 34 of the Charter.
In brief summary, counsel for the Attorney-General made the following relevant written submissions. First, s 95 of the CMI Act applies to the applicant by reason of s 121 of the Act, which is in clear terms. No other interpretation is open on the text of the section, so that s 32 of the Charter could not require any different interpretation. Secondly, s 32 of the Charter required no different interpretation of s 95, since s 95 did not limit the applicant’s rights under s 27 of the Charter. That is because the changes made to the conduct of special hearings do not permit a person to be found guilty by reason of conduct that was not an offence when engaged in; nor do they result in the imposition of a penalty greater than the penalty applicable to the offence when it was committed. Thirdly, s 101 of the CMI Act does not limit the right in s 8(3) of the Charter because it is a measure taken for the purpose of assisting persons with mental impairment, which does not constitute discrimination by operation of s 8(4). In the alternative, s 101 is justified under s 7(2) of the Charter.
Discussion
Part 11 of the CMI Act — embracing ss 91 to 122 — was introduced by s 30 of the OEM Act. It is headed, Temporary measures in response to COVID-19 pandemic.
Section 91(1) provides that the purpose of Part 11 ‘is to temporarily change the operation of this Act in response to the COVID-19 pandemic’.
By virtue of s 95(1), s 12 ‘does not apply in relation to an investigation into the fitness of an accused to stand trial’.[21] Instead, s 95 applies. Importantly, s 95(6) provides:
(6) If the court finds that the accused is not fit to stand trial and determines that the accused is not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 as soon as practicable (but within 6 months) and may—
(a) either—
(i) grant the accused bail; or
(ii) subject to subsections (4) and (5), remand the accused in custody as described in subsection (3)(b) or (c); and
(b) make any other order the court thinks appropriate.
[21]See [5] above.
Also of importance, s 101 provides:
101 Court may order special hearing by judge alone
(1) At any time before the commencement of a special hearing, the court may order that the special hearing be conducted by the judge alone, without a jury, if—
(a) the offence for which the special hearing is to be conducted is an offence under the law of Victoria; and
(b) the court considers that it is in the interests of justice to make the order.
(2) The court may make an order under subsection (1)—
(a) on its own motion; or
(b) on application by the prosecution or an accused.
(3) In determining whether to make an order under subsection (1), the court must have regard to the submissions, if any, of the prosecution.
(4) However, the court may make an order under subsection (1) whether or not the prosecution consents to the making of the order.
Section 121(2) is found in Division 7 of Part 11, headed Transitional provisions. It provides:
121 Transitional provision
…
(2) A special hearing is to be conducted in accordance with this Part irrespective of—
(a) when the offence charged is alleged to have been committed; and
(b) when the criminal proceeding to which the special hearing relates was commenced; and
(c) when the accused was found unfit to stand trial.
It will be remembered that the applicant’s counsel advanced the following principal submissions:
· first, s 12(5) of the CMI Act is not merely procedural, but conferred ‘substantive rights’ upon the applicant;
· secondly, the OEM Act purports retrospectively to affect those substantive rights, and therefore infringes the common law, s 27 of the Charter and s 14(2) of the Interpretation of Legislation Act 1984;
· thirdly, the finding that the applicant was unfit to be tried ‘cleared’ the indictment, so that the charges against the applicant in effect had been finally dealt with;
· fourthly, the applicant’s loss of a jury for the purposes of the special hearing created a ‘prejudice’, and discriminated against him on the basis of disability; and
· fifthly, s 95 of the CMI Act is ‘invalid’ in its application to the applicant, the remedy for that invalidity being that it should be ‘read down’ as only applying to new unfitness verdicts after the commencement date (and thus not as applying to the applicant).
None of these submissions has substance.
We reject the contention that s 12(5) conferred any substantive right on the applicant. In form and substance s 12(5) is procedural, in that it spells out what the court must do if a jury has found that the accused is not fit to stand trial (and the judge determines that the accused is not likely to become fit within the next 12 months). Plainly, it confers no ‘right’ on an accused person who is found unfit to be tried. Instead, it governs the process that the court must follow upon a finding that an accused relevantly is unfit, prescribing a time limit within which a special hearing is to be conducted (once the judge determines that the accused is not likely to become fit within the next 12 months). It is only following the special hearing that the accused’s rights may be affected. Hence, a finding under s 17(1)(c) that the accused committed the offence charged (or an offence available as an alternative) may affect the accused’s liberty; in that, s 18(4) dictates that a finding under s 17(1)(c) will result in the judge declaring that the accused is liable for supervision under Part 5, or ordering his or her release unconditionally.[22] But s 12(5) effectively does no more than prescribe a time limit within which a hearing which may affect the accused’s right to liberty is to be conducted.
[22]See ss 21(1) and (3) of the Charter.
Since s 12(5) is merely procedural, and does not affect any existing right, there is no room for the presumption against retrospectivity to operate. The relevant principle was described in Rodway as follows:[23]
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural — statutes of limitation, for example — may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.
[23]Rodway, 518–9 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
Further, given that s 12(5) conferred no substantive right on the applicant, the applicant’s counsel’s reliance on s 14(2)(e) of the Interpretation of Legislation Act 1984 was also misplaced.[24] The applicant had not ‘accrued’ any ‘right’ under the provision of an Act which had ceased to have effect.
[24]So far as relevant, s 14(2) provides:
(2) Where an Act or a provision of an Act—
…
(b)expires, lapses or otherwise ceases to have effect—
the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears—
…
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
…
(g)affect any investigation, legal proceeding or remedy in respect of anything mentioned in paragraphs (e) to (f)—
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.
Moreover, there can be no sensible argument that s 27 of the Charter has any application in the applicant’s case. Indeed, we found counsel’s purported reliance on s 27 somewhat baffling. Section 27(1) provides that a person ‘must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in’; and s 27(2) provides that a penalty ‘must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed’. Incest and attempted incest were criminal offences at the time of the relevant alleged conduct. But more importantly, a finding under s 17(1)(c) of the CMI Act neither permits a person to be found guilty of an offence, nor exposes the accused who is unfit to be tried to any ‘penalty’ (whether greater or lesser).[25] Hence, insofar as the applicant’s counsel argued that Judge Davis erred in failing to consider s 27 of the Charter, first, when construing s 95 of the CMI Act; and, secondly, when listing the special hearing for determination on 20 July 2020; those arguments fall away.
[25]See WBM v Chief Commissioner of Police (2010) 27 VR 469, 485 [60], in which Kaye J held that the reference to ‘penalty’ in s 27(2) is the equivalent to ‘punishment’ or ‘sentence’.
In our opinion, s 121(2) of the CMI Act provides in the clearest terms that s 95 of the Act — which makes s 12(5) inapplicable in a situation such as the applicant’s — applies even if an accused person has (as the applicant has) already been found unfit to stand trial. No other interpretation is open on the language of the provision. That being so, s 32 of the Charter cannot require any different interpretation. Furthermore, there could be no occasion for the Court to declare — as the applicant’s counsel invited us to do — that s 95 of the CMI Act is ‘invalid’.
As we have said, the applicant’s counsel submitted that the loss of a jury for the purposes of the special hearing created a ‘prejudice’, and discriminated against the applicant on the basis of disability. We consider, however, that the opposite is true.
By virtue of s 3(1) of the Charter, discrimination means discrimination on the basis of an attribute set out in s 6 of the Equal Opportunity Act 2010 (‘EO Act’). By s 6(e) of the EO Act, a relevant attribute is disability, which, by reason of s 4(1), includes ‘(d) malfunction of a part of the body including … (i) a mental or psychological disease or disorder’. For the purposes of the EO Act, s 8(1) provides that direct discrimination occurs if a person is treated ‘unfavourably’ because of their disability; and s 9(1) provides that indirect discrimination occurs if a person is subject to a requirement, condition or practice that has (or is likely to have) the effect of ‘disadvantaging’ the person because of their disability. Section 8(4) of the Charter provides that measures ‘taken for the purpose of assisting or advancing persons … disadvantaged because of discrimination do not constitute discrimination’.
One of the main purposes of the CMI Act was to ensure that accused persons found unfit to be tried were no longer held at the Governor’s pleasure, and to make them subject to a more humane regime. Thus, Winneke P made the following observations about the CMI Act in RDM:[26]
The Act redefines the procedures for dealing with persons who have committed serious criminal acts whilst under the influence of mental disability and also the procedures for dealing with persons who, because of mental disability, are unfit to plead or stand trial. These provisions which are found in Pts 2, 3 and 4 of the Act, take the place of the long-standing procedures, previously contained in ss 393 and 420 of the Crimes Act 1958, which had been part of the law in this State since the introduction of the Criminal Law and Practice Statute 1864 (ss 358 and 364). In turn those provisions had an ancient pedigree dating back to ss 1 and 2 of the Criminal Lunatics Act 1800 (39 and 40 Geo 3 c 94). The history of the former procedure was canvassed by the Full Court in R v Judge Martin; Ex parte Attorney-General [1973] VR 339, particularly in the judgments of Smith ACJ at 342–50 and Little J at 352–9.
It is the clear purpose of the Act to replace the former procedures with what is thought to be a more flexible and humane procedure. Accordingly s 82(2) repeals the former ss 393 and 420 of the Crimes Act; and s 25 abrogates the common law defence of insanity in favour of a new defence of ‘mental impairment’: s 20.
The second object which the Act sets out to achieve, by Pts 5, 6 and 7, is the transfer from the executive government to the courts of the responsibility for the supervision of the custody, and for the release from custody, of mentally impaired persons. Accordingly the court no longer has the power to order that such a person be detained in strict custody until the Governor’s pleasure is known: s 78.
[26]RDM v Director of Public Prosecutions [1999] 2 VR 270, 272 [4]–[6].
Although it might be said that the regime that existed prior to the CMI Act discriminated against accused persons with a disability — in that they were subject to indefinite detention at the discretion of the executive — one of the main purposes of the CMI Act was an attempt to remove (or at least, substantially ameliorate) the discrimination suffered by those found unfit to be tried. Although, of course, the special hearing procedure is available only in a case in which an accused person’s disability has rendered them unfit to be tried, and thus treats them differently to those without a disability who are accused of a criminal offence, it is not discriminatory because it is a beneficial procedure, established specifically for the benefit of those with a mental impairment.
Furthermore, it is evident that, when introducing Part 11 into the CMI Act — and s 101 in particular — Parliament evinced an intention that special hearings would continue to be conducted throughout the period of the emergency created by the pandemic if it were not be possible to empanel a jury.[27] Section 101 allows for the continued operation of special hearings, and allows for special hearings to take place within the prescribed timeframes, in circumstances where the pandemic has made it practically impossible to empanel a jury. It is a temporary measure taken for the purpose of ensuring that during the course of the pandemic special hearings can take place with respect to those suffering mental impairment.
[27]Section 101 may be compared with s 420D(1)(b) of the CPA — introduced by s 32 of the OEM Act — which provides that the trial of charges on an indictment before judge alone, without a jury, may only be ordered if ‘each accused consents to the making of the order’. Consent of the accused is not required before an order under s 101 is made.
Although, by permitting a hearing by judge alone, s 101 changes the extent to which the special hearing procedure resembles the procedure in a criminal trial, that does not necessarily translate to the unfit accused person being treated unfavourably. There are benefits to the accused arising from the procedure that must be weighed against the supposed prejudice arising from loss of a jury. In particular, a person in the applicant’s position is not left in a state of limbo. And he or she has available the potential benefits (set out in s 18) that flow from a finding under s 17(1) of the CMI Act. (Additionally, of course, any alleged victim of an accused person’s offending is the beneficiary of a final determination of his or her allegations.)
We therefore consider that Judge Higham was correct to conclude that the interests of justice, and the interests of both the applicant and the complainant, were best served by the expeditious hearing of the matter by the judge alone. There was a significant public interest in the determination of the allegations levelled at the applicant. And we repeat, in any event, that counsel for the applicant told us that he did not greatly press the application for leave to appeal with respect to Judge Higham’s ruling, the application being focussed on the effect of s 12(5) of the CMI Act.
For these reasons we refused leave to appeal against the interlocutory decisions sought to be impugned.
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