Victors (a pseudonym) v Director of Public Prosecutions
[2023] ACTCA 14
•1 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Victors (a pseudonym) v DPP |
Citation: | [2023] ACTCA 14 |
Hearing Date: | 1 February 2023 |
Decision Date: | 1 February 2023 |
Before: | Berman AJ |
Decision: | (1) The application for leave to appeal is granted. (2) The matter is listed before the Registrar on 8 February 2023. (3) Notice of appeal to be filed within seven days. |
Catchwords: | CRIMINAL LAW – Application for leave to appeal interlocutory decision – decision of primary judge which found accused was fit to plead – relevant principles and factors – whether appellant is disordered or impaired to the extent they cannot give instructions – weight to be given to evidence from the appellant’s lawyers – leave to appeal granted |
Legislation Cited: | Crimes Act 1900 (ACT) ss 311, 312(4), 314(3), 315A Human Rights Act 2004 (ACT) s 21 Supreme Court Act 1933 (ACT) s 37E(4) |
Cases Cited: | Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48 DPP v Victors (a pseudonym) (No 2) [2022] ACTSC 328 Miles v R [2013] ACTCA 52 Piscioneri v Reardon [2016] ACTA 33 R v DL [2018] ACTCA 9 R v Dunn [2012] NSWSC 946 R v Fisher [2011] ACTSC 56 |
Parties: | Dan Victors (a pseudonym) (Appellant) Director of Public Prosecutions (Respondent) |
Representation: | Counsel J Pappas (Appellant) K McCann (Respondent) |
| Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | AC 65 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT |
| Before: Elkaim J Date of Decision: 1 December 2022 Case Title: DPP v Victors (a pseudonym) (No 2) Citation: [2022] ACTSC 328 Court File Number: SCC 21 of 2021 |
Berman AJ
The applicant, who has been given the pseudonym ‘Dan Victors’, has been charged with a number of sexual assault offences allegedly committed against his daughters in the 1980s. A question was raised concerning the applicant’s fitness to plead, and an investigation was held into his fitness to plead by Elkaim J. His Honour found the applicant fit to plead (DPP v Victors (a pseudonym) (No 2) [2022] ACTSC 328).
The applicant now seeks leave to appeal to the Court of Appeal against his Honour’s decision. Leave is required because his Honour’s Order was an interlocutory decision: see s 37E(4) of the Supreme Court Act 1933 (ACT).
At the hearing before his Honour, the applicant argued that he was not fit to plead, while the contention for the Crown was to the contrary. His Honour was assisted by evidence from three experts: a geriatrician, called by the applicant, Dr Kulh, whose opinion was that the applicant was not fit to plead; a psychologist called by the Crown, Dr Pullman, whose opinion was that he was fit to plead; and a neurologist, also called by the Crown, Professor Brew, whose opinion was that he was fit to plead. Dr Kulh had been treating the applicant and had assessed him in person on a number of occasions. Dr Pullman had seen him once, but Professor Brew had not seen him at all.
Affidavits sworn by two of his lawyers and their practice manager were also relied on by the applicant. That evidence related to observations they had made of the applicant, and the difficulties his lawyers had in obtaining instructions from him. His Honour’s treatment of that evidence at the hearing and in his judgment is the subject of complaint on this application, and, if successful will be the basis for a ground of appeal.
At the hearing, objection was taken by the Crown to a number of parts of the affidavits. These objections seem to have been based on the assertion that the lawyers and the practice manager were advancing opinions they were not qualified to make. His Honour rejected parts of the affidavits but allowed other parts.
Justice Elkaim delivered his judgment without delay. In uncontroversial terms, his Honour’s judgment sets out the history of the proceedings, the statutory basis for an investigation into fitness to plead, and sets out the evidence, both documentary and oral.
When his Honour came to the affidavits relied on by the applicant, his Honour said this at [29]:
With respect, I do not find the observations of Mr Taylor and his staff to be of particular assistance. They are the personal opinions of laypersons. I would have been more assisted by observations from lay persons who have had a good deal more regular contact with the respondent. The notable absence is any oral or affidavit evidence from his wife. I do however note that Mrs Victors did speak to Dr Kulh.
After setting out the expert evidence of Dr Kulh and Dr Pullman, his Honour turned to what appears to have been an important aspect in his Honour finding that the applicant was fit to plead, namely, the evidence of Dr Brew. His Honour said at [50]-[53]:
50. The real difficulty for the respondent’s contentions come with the report of Prof Brew, which is annexed to the affidavit of Ms Heidi Andriunas. He is a highly qualified neurologist who has specialised for many years in cognitive function. He examined the PET-CT scan and concluded that it did not show dementia at all, that is neither Alzheimer’s nor vascular dementia. Prof Brewer was crossed-examined. He was not however challenged on this opinion. This places a significant dent in the opinion of Dr Kuhl [sic].
51. Prof Brew stated in the clearest of terms:
I do consider that Mr (Victors) has the mental capacity to stand trial, understand the nature of the charge, enter a plea to the charge and exercise the right to challenge jurors or the jury, understand that the preceding is an enquiry about whether he committed the offence, follow the course of the preceding, understand the substantial effect of any evidence that may be given in support of the prosecution, and give instruction to his lawyer.
52. Prof Brew did concede that there was some cognitive impairment, but he said it was not to an extent that would impact upon the capacity to plead, as defined in s 311. In relation to the respondent’s belief in a forthcoming world war (including hoarding and purchasing timber to protect against radiation) Prof Brew accepted this could be an indication of cognitive impairment but said that, standing alone, it did not establish impairment.
53. Prof Brew, because of his acceptance of a degree of cognitive impairment, agreed that shorter hearing periods and opportunities for explanation would be beneficial. He said that the minor impairment and the assorted other comorbidities could combine to affect the respondent’s mental and physical stamina. But they did not go so far as to influence his capacity to plead.
A short time later, his Honour concluded, at [55]-[56]:
55. Ultimately, I am of the view that the evidence favouring an order that the respondent is unfit to plead is equally balanced by the evidence to the opposite effect, but perhaps favouring the prosecution case to a small degree.
56. Importantly the concessions made by Dr Kuhl [sic], together with the evidence of Prof. Brew about the existence of dementia at all, together mitigate against a finding that the respondent is unfit to plead.
The grounds of appeal on which the appellant would rely, should his application be successful, are as follows:
(a) His Honour erred in approaching the investigation into the respondent’s fitness to plead as though the respondent bore a burden of proof contrary to s 312(4) of the Crimes Act 1900 (ACT);
(b) His Honour erred in taking into account the absence of oral or affidavit evidence from the respondent’s wife;
(c) His Honour erred in finding the evidence of the observations of the respondent’s legal representatives amounted to no more than “personal opinions of laypersons”;
(d) His Honour failed to take into account appropriately or at all the evidence of officers of the Court concerning matters germaine [sic] to his investigation under s 311 of the Crimes Act 1900 (ACT); and
(e) His Honour gave inappropriate weight to the opinion evidence of Professor B Brew who had never examined the respondent.
The principles to be applied, in deciding whether leave should be granted to appeal against an Interlocutory Order, have been stated many times by various judges of this Court. The respondent has, without complaint from the applicant, referred to the principles as set out by Burns J in R v DL [2018] ACTCA 9 at [14]. His Honour there refers with approval to the judgment of Penfold J in Miles v R [2013] ACTCA 52 at [11] where her Honour expressed the test to be applied this way:
The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows:
(a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal.
(b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong.
(c) Whether a grant of leave would inappropriately fragment the criminal trial process.
(d) Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
Reference should also be made to s 21 of the Human Rights Act 2004 (ACT), which enshrines the right to a fair trial. This provision suggests that the principles regarding the grant of leave to appeal should be applied more liberally in favour of an accused in circumstances such as this, where, if there was an error in the Court below, the applicant’s trial could hardly be a fair one: see Piscioneri v Reardon [2016] ACTCA 33 at [38], citing with approval Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48 at [58].
I have decided that the application should be granted. I consider that his Honour’s decision is attended with sufficient doubt to warrant its reconsideration. Particularly important, in my view, is his Honour’s treatment of the evidence from the applicant’s lawyers.
Section 311 of the Crimes Act1900 (ACT) sets out six things that a person must be able to do before they can be found fit to plead. Five out of six is not good enough. Focusing on the last of those matters, a person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot give instructions to the person’s lawyers: see s 311(1)(f) of the Crimes Act 1900 (ACT).
It is sufficiently arguable that his Honour’s treatment of the evidence of the applicant’s lawyers did not give adequate and proper weight to the experience they had had in obtaining instructions from him. That evidence was relevant not only to general questions, such as the extent to which his mental processes were disordered and whether he suffered from dementia, but it was also relevant to one of the specific matters which had to be examined in deciding whether the applicant was unfit.
It has to be recognised, and it has been recognised in cases such as R v Dunn [2012] NSWSC 946 at [17] and R v Fisher [2011] ACTSC 56 at [29], that relevant evidence as to whether a person is capable of giving instructions to their lawyers may come from those people who are trying to get the instructions, the lawyers acting for the accused.
It is, in my view, tolerably arguable that by characterising the evidence from the applicant’s lawyers as “personal opinions of laypersons”, his Honour failed to take into account evidence, which was clearly not opinion evidence, but simply evidence of the difficulties they had in obtaining instructions.
Another aspect of his Honour’s reasons at [29], to which I have already referred, is important. His Honour referred to the “notable absence” of evidence from the applicant’s wife as someone who would have “had a good deal more regular contact with the respondent” than his lawyers. Again, this tends to suggest that his Honour treated the evidence from the applicant’s lawyers as relevant only to general questions regarding the mental state of the applicant rather than specific evidence going to one of the criteria of fitness - the ability of an accused to give instructions to his lawyers.
This understanding of the way his Honour treated the evidence of the applicant’s lawyers is supported by events which occurred during the inquiry itself. At page five of the transcript of the first hearing day, his Honour rejected a paragraph of Mr Taylor’s affidavit, being paragraph 34, where Mr Taylor spoke about his experience and that he had acted in the past for “thousands” of people. It is arguable that that evidence should not have been rejected. Mr Taylor’s history as a lawyer was relevant to his experience and abilities in obtaining instructions from clients. It pointed towards the problem he was having in getting instructions from the applicant as being due to something to do with the applicant, rather than Mr Taylor’s incompetence.
This is not a case where his Honour’s treatment of the evidence of the applicant’s lawyers could be said to have been immaterial because of the overwhelming expert evidence demonstrating fitness. As already mentioned, his Honour acknowledged, at [55] that:
The evidence favouring an order that the respondent is unfit to plead is equally balanced by the evidence to the opposite effect, but perhaps favouring the prosecution case to a small degree.
It is arguable that a proper consideration of the evidence from the applicant’s lawyers would have led to a different outcome, namely, a finding of unfitness.
As is clear from the draft grounds of appeal, Mr Pappas, who appeared today for the applicant, raises a more fundamental point about the way his Honour treated the evidence of the applicant’s lawyers at the fitness inquiry. His submission is that his Honour was wrong to apply the rules of evidence to be found in the Evidence Act 2011 (ACT), especially of course the rules regarding opinion evidence, because s 315A of the Crimes Act 1900 (ACT) should be interpreted as saying that the evidence does not apply to fitness inquiries.
I have not found it necessary to decide this issue as in my view, even if the Evidence Act 2011 (ACT) applies, the important evidence from the applicant’s lawyers about their difficulties getting instructions and their observations of his general behaviour was not opinion evidence at all.
In deciding to grant this application, I have taken into account, and this is obvious, that assuming in truth that the applicant is unfit to plead, a substantial injustice would result from him facing trial in that condition. The prospect of someone facing trial when they are unable to properly participate in the trial and defend themselves is not an attractive one.
The Crown argued that there was nothing stopping the applicant’s lawyers making a second application for a fitness inquiry and so refusal of leave to appeal would cause no injustice. I do not accept that submission. In the absence of a change of circumstances, a second application for an inquiry runs the risk of being considered an abuse of process. If there were no different evidence to be relied on, a second application for an inquiry may well be rejected on the basis that, the matter having already been determined, the Court may not be satisfied that “there is a real and substantial question about the defendant’s fitness to plead”: see s 314(3) of the Crimes Act1900 (ACT).
I have taken into account the fragmentation of the trial process which will result from my grant of the application for leave to appeal. This is especially important given the applicant’s advancing years. Substantial delay may well affect the very issue at the heart of this application. If he is in truth fit to plead, there is a risk that he will become unfit by the time of his trial and this risk will be exacerbated by the delay which will necessarily result from this application being granted.
That said, if this appeal can be heard quickly, the delay in the criminal process should not be too great. The parties should endeavour to have the matter listed as soon as possible. There may need to be some work on the part of the applicant’s lawyers to focus their grounds of appeal to reduce the time the appeal will take.
Orders
For the reasons above I make the following orders:
(1)The application for leave to appeal is granted.
(2)The matter is listed before the Registrar on 8 February 2023.
(3)The notice of appeal is to be filed within seven days.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons of his Honour Acting Justice Berman Associate: Date: |
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