Victors (a pseudonym) v Director of Public Prosecutions (No 2)

This matter concerned an appeal from an interlocutory decision of the primary judge who had found the appellant, Victors (a pseudonym), fit to plead. The appeal was heard by Loukas-Karlsson, Baker and Bromwich JJ of the Supreme Court of the Australian Capital Territory. The central dispute revolved around whether the primary judge had correctly conducted the investigation into the appellant's fitness to plead, particularly in light of the provisions of s 312(4) of the *Crimes Act 1900* (ACT).

The court was required to determine several legal issues. These included whether the primary judge had erroneously placed a burden of proof on the appellant contrary to s 312(4) of the *Crimes Act 1900* (ACT), whether the absence of evidence from the appellant's wife had been improperly considered, and whether the observations of the appellant's legal representatives had been wrongly characterised as mere personal opinions of lay persons. Furthermore, the court considered whether the primary judge had failed to adequately take into account the evidence provided by legal representatives regarding matters relevant to the fitness inquiry, and whether undue weight had been given to the opinion evidence of an expert witness who had not personally examined the appellant.

The Court of Appeal allowed the appeal on ground 3, finding that the primary judge had erred in the conduct of the fitness to plead investigation. The reasoning involved a critical assessment of how the evidence was approached and weighed. The Court determined that the primary judge had misapplied the statutory provisions concerning the burden of proof and had failed to give appropriate consideration to the evidence of the appellant's legal representatives, which was considered germane to the inquiry. The Court also found that the expert evidence had been given inappropriate weight without the benefit of a personal examination of the appellant.

Consequently, the Court ordered that the primary judge's finding that the appellant was fit to plead be set aside. The matter was remitted to be heard by a judge of the Court for a fresh investigation into the question of whether the appellant is unfit to plead.