Tyrell Carson (a pseudonym)[1] v The Queen - [2020] VSCA 202

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…

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.

Continue reading Tyrell Carson (a pseudonym)[1] v The Queen

Details

AGLC: Tyrell Carson (a pseudonym)[1] v The Queen [2020] VSCA 202
Case: [2020] VSCA 202
Decision Date: 24 July 2020

CaseChat Overview and Summary

The applicant, Tyrell Carson, has 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, rather than a judge and jury. Carson suffers from advanced vascular dementia, rendering him unfit to be tried. The legal issues before the court included whether the applicant's attorney, appointed under an enduring power of attorney, had the competence to bring the application, and whether the legislation authorising a judge-alone hearing was valid. The court also considered whether the presumption against retrospective application applied, and whether the Charter of Human Rights and Responsibilities Act 2006 was contravened. The court held that the application was competently brought by the attorney, and the relevant legislation was valid. The presumption against retrospectivity did not apply as the legislation did not alter the substantive criminal law, and the Charter was not infringed as the impugned provisions did not impair the applicant's rights in a significant way. Leave to appeal was refused.

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