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…
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- AGLC
- Tyrell Carson (a pseudonym)[1] v The Queen [2020] VSCA 202
- Case
- [2020] VSCA 202
- Decision Date
CaseChat Overview and Summary
The applicant, Tyrell Carson, appealed against a ruling that a special hearing regarding his fitness to be tried on charges of incest and attempted incest would proceed by a judge alone. Carson suffers from advanced vascular dementia, rendering him unfit to be tried. The court found that the applicant's attorney, appointed under an enduring power of attorney, was competent to bring the application. The court also found that the relevant legislation, which authorised a judge-alone hearing, was valid. The court rejected the argument that the presumption against retrospective application applied, holding that the legislation did not alter the substantive criminal law. The court further held that the Charter of Human Rights and Responsibilities Act 2006 was not infringed, as the impugned provisions did not impair the applicant's rights in a significant way. The applicant's leave to appeal was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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