PHILOPOS v R

Court of Criminal Appeal (NSW)|2008-01-31|Before: McClellan CJ, James J, Barr J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; James J at 82; Barr J at 83

DECISION: 1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted but the appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - multiple counts of indecent assault and sexual intercourse without consent - whether appellant fit to be tried - no application made by defence counsel - whether trial judge erred in failing to grant adjournment for purpose of obtaining medical assessment as to state of mind of appellant - overwhelming Crown case - CRIMINAL LAW - legal representation - conflicting instructions from appellant - application by defence counsel for leave to withdraw - whether trial judge erred by refusing to grant adjournment for appellant to obtain other legal representation - whether lack of legal representation resulted in a miscarriage of justice - CRIMINAL LAW - sentencing - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900 Mental Health (Criminal Procedure) Act 1990

Craig v South Australia (1995) 184 CLR 163 Dietrich v The Queen (1992) 177 CLR 292 Frawley v R (1993) 69 A Crim R 208 CASES CITED : Greer v R (1992) 62 A Crim R 442 McInnis v The Queen (1979) 143 CLR 575 R v IAS (2004) 146 A Crim R 416; [2004] SASC 240 R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268

PARTIES: Raouf Maurice Philopos (Appellant) The Crown

COUNSEL: G Niven (Appellant) D Arnott SC/J A Girdham (Crown)

SOLICITORS: Tsambas & Co (Appellant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3234

McCLELLAN CJ at CL JAMES J BARR J

TUESDAY 1 APRIL 2008 PHILOPOS, Raouf Maurice v R Judgment 1 McCLELLAN CJ at CL: The appellant was convicted of six counts, being four counts of indecent assault contrary to s 61L of the Crimes Act 1900 and 2 counts of sexual intercourse without consent contrary to s 61I of the Act. The offence against s 61L carries a maximum penalty of 5 years imprisonment. The offence against s 61I carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years. The appellant was sentenced to an overall term of imprisonment of 12 years with a non-parole period of 8 years. He appeals against both his conviction and sentence.

The facts 2 On the evening of 2 April 2003 the appellant attended the emergency ward at Westmead Children's Hospital with his young son who was suffering a severe asthma attack. In the early hours of 3 April at about 3.20 am the boy was transferred to a room in the ward of the hospital which had 2 beds. The appellant arranged for hospital staff to provide a chair bed for him so that he could stay the night beside his son who was distressed. In the next bed, divided by a drawn curtain slept the complainant. She was awoken by the disturbance in the room. 3 The appellant approached the complainant and apologised for the noise. He returned to her bedside a number of times, engaging her in conversation, after which she tried to get back to sleep, lying in a face down position. The appellant then came round the curtain, stood next to the complainant and commenced massaging her shoulders and ran his hands to her lower back. He then moved his hands to the front of her waist and thighs. 4 Count 1 is a charge of indecent assault. It was alleged that the appellant touched the complainant's vagina on the outside of her underpants with one hand. 5 Count 2 is an allegation of sexual intercourse in which it is alleged that the appellant manoeuvred his fingers inside the complainant's underwear and inserted two or three fingers inside the folds of her vagina for a number of minutes. 6 Count 3 is a charge of indecent assault. It is alleged that the appellant placed the complainant's hand on the front of his pants where she felt his erect penis. 7 Count 4 is a charge of alleged sexual intercourse. It is alleged that the appellant pushed the complainant onto her side facing him, placed himself in the bed and pulled his pants down. He then pulled down the complainant's shorts and underpants to mid thigh level. It is alleged that the appellant pressed his penis inside the folds of the complainant's vagina thrusting for a number of minutes until he ejaculated. The complainant held her legs together to avoid any deeper penetration. 8 Count 5 is a charge of indecent assault. It is alleged the appellant got off the bed and went into the bathroom. The complainant pulled up her underpants. It is alleged that the appellant then returned with some toilet paper, pulled her underpants away and placed the toilet paper inside them and against her vagina. 9 Count 6 is a charge of indecent assault. It is alleged that when the complainant rolled over her top became disarranged exposing a nipple. It is alleged that the appellant kissed the nipple and shortly after returned to the other side of the curtain. 10 The complainant was in hospital because she was suffering from depression and severe social phobia. She kept very much to herself. There was evidence from her treating psychiatrist that in stressful situations she would withdraw inside herself and not speak. The Crown alleged, in part, that this explained why she did not raise the alarm when she was assaulted. Although she took herself off to a waiting room near the nurses' station after the offences occurred, she did not inform nursing staff of what had taken place, but merely asked to speak to her psychiatrist. Later that morning the complainant told one of her psychiatrists, Dr Sue Powell when she arrived, that the appellant had touched her in her "private parts" with his hand in her room that night and with "his thing." Dr Powell gave evidence that the complainant was distressed when relating what had occurred. The police were then called. 11 The appellant was not arrested until 6 weeks after the alleged offences. In an ERISP conducted with him he denied sexually assaulting the complainant and further denied ever touching or speaking to her. He said he spent the whole time looking after his son. 12 His evidence at his trial was substantially different to the ERISP. At his trial the appellant claimed the complainant acted in a very seductive way towards him. He said that she beckoned him to sit beside her on her bed, lay on her bed with her legs in an improper position and requested that he rub her head. During his evidence the appellant changed his version a number of times in relation to whether or not he had ever ejaculated. At one point he said he became aroused and ejaculated on himself inside his pyjama pants and that some semen may have got onto the complainant's face. His pyjama pants were open with a button. At another point he denied semen got onto her face. At yet another point the appellant denied that he had ejaculated at all stating he invented this to explain away the presence of his DNA on the complainant. The appellant's account contained references to an evil spirit being in the room. He attributed inconsistencies in his sworn evidence to the effects of sedation during cross-examination in court. 13 There was considerable evidence which supported the complainant's account, including the report she gave to her psychiatrist. There was other evidence of an objective character. The appellant's DNA was found on the complainant's nipple. There was semen found on a vulval swab taken from the complainant. When tested it was found that the appellant could not be excluded as the source of the partial DNA profile. The appellant also gave evidence that there had been a sexual interaction between himself and the complainant. He gave evidence that he had ejaculated and that the door to the room was closed. He said that his son was asleep. He also admitted that he had massaged the complainant's shoulders.

The trial process 14 The trial of the appellant encountered significant complications. He was committed for trial in December 2003. Thereafter there were multiple adjournment applications made by his representative. There was a fitness hearing conducted in the District Court on 10 May 2005 when it was determined that the appellant was not unfit to be tried. Medical reports from Dr Wong and Dr Westmore, psychiatrists, were tendered on the fitness hearing. These medical reports were also later tendered during the sentencing proceedings. Dr Wong was of the opinion that the appellant did not have any genuine psychiatric disorder at the time and was probably contriving his symptoms. 15 On 22 November 2005 the appellant's legal representatives withdrew from the case. They had encountered considerable difficulties. The appellant had not kept appointments with them or with doctors engaged to provide expert opinion in relation to his medical condition. There were at least three sets of lawyers who represented the appellant prior to those who represented him at his trial. An application was made on 6 April 2006 for an adjournment of the trial on the basis that the appellant had been assaulted in an hotel and was receiving medical treatment. The application was refused. Another adjournment application was made on 13 April 2006 by his solicitor, due to the fact that he had not been able to contact the appellant and had not briefed counsel. This application was also refused.

The course of the trial 16 The trial finally commenced on Monday 24 April 2006. Defence counsel asked for an adjournment for one day indicating that he had had insufficient time to confer with the appellant. In making the application defence counsel stated: "it appears to me that he does have or has in the past suffered from mental illness. I do not know whether he is suffering mental illness at the moment. There is certainly no issue about fitness to plead." 17 Later on that day defence counsel stated: "Well, your Honour I have had a lot of difficulty obtaining instructions which I must say I am not satisfied with, and when I say I am not satisfied, I am not satisfied 100% about his ability to give me those instructions. … I really feel that I need to speak to Dr Westmore before the matter proceeds." 18 The trial judge decided that the prosecution case could be opened to the jury. However, when this was completed the trial was adjourned until Wednesday. Tuesday of that week was a public holiday. 19 On Wednesday, 26 April defence counsel applied for an adjournment. His stated purpose was "so that I can have my client assessed in relation to his fitness to provide instructions." Counsel said: "At any rate my concern your Honour is that in conference at times he appears to be coherent, understanding and appears to be able to give rational, coherent instructions and at other times it degenerates into incoherent almost nonsensical ramblings and religious rantings about being possessed by the devil and hearing voices and other such ramblings." 20 When asked by the trial judge whether there was any objection to hearing the evidence in chief from the complainant, defence counsel replied: "No, no other objection, your Honour, however, I would - my preference is to adjourn before the evidence in chief but I have no other objection, no." 21 A short time later counsel advised the judge that the appellant had a toothache. However, no further application for an adjournment was made. 22 Later that day defence counsel informed the trial judge that he had spoken to Dr Allnutt, a psychiatrist, who indicated "that he's always had concerns about Mr Philopos's mental state (and) … that he is of the opinion that Mr Philopos should be now hospitalised so that he can be assessed properly." Although this information was passed onto the judge there was no application by defence counsel. The proceedings continued and at the end of the day defence counsel had commenced cross examining the complainant. 23 On Thursday, 27 April the trial judge was informed that an appointment with Dr Westmore, psychiatrist, had not been kept by the appellant "because of the time constraints and the difficulties of getting the accused back here in time for the trial to start this morning." Defence counsel informed the judge of his "predicament" of being handicapped in his cross examination of the complainant. Counsel said he was handicapped "until I get instructions" although later he refined this by stating "I do have conflicting instructions, and I consider that to be that I can't get instructions." However, no application was made. Cross examination of the complainant was completed and a number of other witnesses gave their evidence. 24 On Friday, 28 April the appellant consulted Dr Westmore before the proceedings commenced. The appellant arrived at court at 11.00 am. Defence counsel made no application prior to evidence being given that day. When the question of bail was being discussed at the end of the day the Crown Prosecutor said: "It would seem also that the defence are not pressing and are not making any application that he [the appellant] is somebody who is unfit and indeed the defence counsel has indicated that the assessment is such that he can obtain instructions." Defence counsel did not indicate that this was other than an accurate statement. 25 At the close of proceedings on that day the appellant's bail was revoked. This was primarily due to the fact that he arrived late to court that day and had been frequently late returning to court following adjournments. The appellant attributed his lateness that day to a circuitous route he took in returning to Parramatta after seeing Dr Westmore in the city. Defence counsel sought to tender a report of Dr Stuart Saker, consultant psychiatrist, but this was rejected as it was dated 15 December 2004 and the trial was taking place in April 2006. Defence counsel when tendering the certificates said: "I'm not relying on it to say that he's [the appellant] not fit to plead or anything like that, all I am relying upon is to show that there is some intellectual disability, some mental impairment that puts him outside of the norm so to speak because the obvious question that people would ask is well why does a person coming from St James travel to Bankstown, need to travel to Bankstown before they travel to Parramatta." 26 Although the appellant's bail was revoked over the weekend it was reinstated on the following Monday. 27 The proceedings on Monday, 1 May were uneventful. The trial proceeded but only for a short time on Tuesday, 2 May due to the fact that the appellant had diarrhoea. 28 The trial resumed at 10.00 am on 3 May. After the luncheon adjournment counsel announced that the appellant was again not feeling well. Counsel said: "He has been very agitated, very anxious over the break. We've been unable to talk to him and get instructions from him. He's very concerned about possibly giving evidence this afternoon and he has been in the legal room upstairs banging his head against the wall and crying for the last 15 or 20 minutes. Now I've spoken to him and he says that he's well enough to come down here and listen to the end of this police officer's evidence, but at that point your Honour I'm going to be asking for an adjournment until tomorrow … He went to the doctor yesterday afternoon and I have the doctor's certificate here. The doctor's certificate said that he should attend Canterbury Hospital for further investigations and that he would be unfit to attend at the trial until the symptoms that he was suffering abated. He was diagnosed as suffering from Mediterranean fever … It's my expectation that if we did adjourn until tomorrow that we could probably proceed with the trial tomorrow … ." 29 A little later the following exchange occurred: "HIS HONOUR: We can deal with that. I think we may as well call the jury back. As I read the authorities and correct me if I'm wrong, either or you, an application in relation to an accused's fitness can be made at any time and can be re-ventilated. There is not such application at the moment -- COUNSEL FOR THE ACCUSED: No." 30 The trial continued that day and the case for the Crown was closed. Defence counsel indicated that he was not ready to start the defence case that afternoon and the matter was adjourned. 31 On Thursday 4 May the hearing was delayed because an interpreter was not available for the appellant who proposed to give evidence. Defence counsel informed the court "my client's content for the matter to proceed as it is and, when the interpreter arrives, I'll explain to him in more detail what's taken part (sic)." The interpreter did not arrive until 12.45 pm. At about 1.30 pm defence counsel informed the court "my client is ill, has been going to the toilet apparently with the same problem he had 2 days ago." Whilst his counsel addressed the court the appellant covered his mouth and gagged and burped. At one point he said: "I have something called Mediterranean fever and it cause wind and diarrhoea." He added "I'm prepared to give evidence but not today because I'm sick." His counsel added that the appellant had "defecated himself and has not been able to clean himself up." The trial adjourned for the day. 32 When the judge came onto the bench at the commencement of proceedings on Friday 5 May ambulance officers were present in court. Defence counsel announced that the appellant was complaining of a toothache. He said that he could not get further instructions and that the appellant had "indicated in very strong terms that he has no confidence in me because of my trying to bring that matter to a head and also other matters that occurred between us yesterday afternoon." Defence counsel went on to say: "I'd like to say this as well, your Honour, as far as - when we are saying we cannot get instructions, and this goes for my instructing solicitor as well, it's not that we cannot get any instructions, it's that we cannot complete those instructions. We cannot fill out detail and when I attempt, or when my instructing solicitor has attempted to fill out detail we then go somewhere else, which then causes - so, it goes around forever in a circle." 33 The court was informed that the ambulance officers believed that the appellant's condition would be controlled with Neurofen but they were not permitted to administer medication. The appellant was then remanded in custody with a recommendation that Corrective Services have the appellant urgently medically and dentally assessed. The appellant was then taken to hospital. Moments after the appellant had left the court his counsel said: "My understanding, from the very brief conversation I had this morning with the accused, and I should add he was quite hysterical while he was talking to me, is that my services have been terminated. I would be prepared to stay in the court precincts to confirm that later this morning. However, as I indicated to your Honour this morning, I feel that my position is just impossible anyway with the instructions that I have and as I've indicated to your Honour that the more that I try and flesh out detail of instructions or try and rationalise different versions of instructions, the more heads the hydra grows and the more difficult the task … becomes and it's further complicated this morning and I feel I've no option but to seek leave to withdraw. … Yes, yes and I just so there's no doubt, my instructing solicitor is in exactly the same position as I am, as far as the instructions that have been obtained during the course of this trial and then he's had whatever he had before that as well." 34 The appellant returned to court after about an hour and a half and informed the judge that he was "much better" and able to proceed. Defence counsel then made an application for leave to withdraw. He told the court that he had had difficulty obtaining instructions. He said: "I have to this date been unable to obtain complete instructions such that I can present his case but I think more importantly I now have what I consider to be four or five different sets of instructions. Some of those instructions are in conflict with each other. … I have presented the accused's case to this date based on the instructions I have obtained. However, as of yesterday, I feel that I now have a different set of instructions which are substantially at odds with the instructions that I had when I was cross-examining witnesses in this trial, and I believe that that has now put me in an impossible position, and absent any further rationalisation or clarification on those instructions, I believe that I am unable to continue to present the accused's case." 35 The appellant stated that he felt comfortable with his solicitor and, although it is unclear whether he was referring to his solicitor or barrister said: "I don't know why he wants to leave me, what happened?" The appellant then said he wanted his wife to give evidence. She was in Brisbane at the time and arrangements had been made for her evidence to be given that day at 1 pm by audio video link. At one point the appellant said: "I can say that I don't want him to continue" although again it is unclear whether he was referring to his barrister or solicitor. He later said that he wanted his barrister to take evidence from his wife. Leave for counsel to withdraw was not immediately granted and Mrs Philopos gave evidence. When her evidence was complete leave was given to the legal representatives to withdraw. This was followed by a short adjournment. 36 Upon resumption, defence counsel in an "amicus curiae" capacity applied for an adjournment and discharge of the jury to enable fresh legal representation to be engaged. During this discussion the appellant interrupted counsel and indicated that he wanted to defend himself. Notwithstanding this interruption counsel stated that he was of the view that legal representation was desirable and that he had some concerns about the mental health of the appellant. He informed the court that in his opinion the appellant's intellectual and psychiatric disabilities had not been completely explored. The following exchange occurred: "Counsel: So he has been found fit to plead but it doesn't mean he's not suffering from some mental illness at this stage, at this time. His Honour: No, but there's not evidence that he is, that's the problem. You have got the evidence … Counsel: No, except for his erratic behaviour with us and in court. His Honour: Well the only problem is, and I think this has been foreshadowed a number of times during the trial, and you foreshadowed it yourself, this is one of the difficulties you've had, there is no evidence - can you translate that please. Interpreter: Evidence about what? His Honour: About any problems with his mental condition with Mr Philopos' mental condition. The appellant; There is no problem. His Honour: There isn't - well I should indicate for the record that the accused is saying there is no problem. … … His Honour: Now you've heard all that? Now you said before you want the matter to go on, is that right? Appellant: Yes." 37 The appellant then said the pain from his tooth was starting to come back again. He also said that there was no pain. His Honour said: "Because he's been given painkillers and that has worked. And you're acknowledging that. So what I want to do is this. I want you to let me know, do you want to give evidence or not? That means-- Appellant: It's been delayed now for 3 years and I want to get this case over and done with because I'm really tired." 38 There followed contradictory statements by the appellant as to whether he wanted to give evidence on that day. Ultimately he said he would start giving his evidence and he did so for about three-quarters of an hour that afternoon. He gave detailed information about his background and the days leading up to the admission of his son to hospital. At the end of the day's proceedings bail was refused. 39 On the following Monday, 8 May, the appellant requested a lawyer. When asked by the judge whether he had made any attempts to obtain one he replied "I can't make any arrangements when I'm in custody." He said that all his previous lawyers had not wanted him to tell the truth but "wanted me to say anything to prove a certain story" and "the lawyers wasted time for me." The appellant had previously had 4 solicitors and 2 barristers. The judge asked him why he needed a lawyer and he responded: "because the matter is now serious" and "I'm not educated and I can't defend myself and the lawyer can." The judge then said to the appellant "when you have given your account of what happened then I will see whether you say you still need a lawyer and ask you why." The appellant then continued to complete his evidence in chief and cross-examination commenced. 40 On Tuesday 9 May at the commencement of the proceedings the appellant again complained about his tooth. He was given some Panamax tablets by the interpreter and the court was adjourned while the tablets took effect. Upon returning to the court the appellant repeated his request for a lawyer. When the judge suggested that he might be playing games the appellant protested "I'm not answering anything until I get a lawyer, this is my right. I am the accused, I am the defendant, I need a lawyer. I am to be judged." When the jury returned the appellant would not say anything other than "I need a lawyer." The court was then adjourned. 41 Following the adjournment when the court resumed the appellant answered the questions put to him in cross-examination. During the course of the cross-examination the Crown Prosecutor asked the judge to direct the appellant to confine himself to answering the question without adding any extra information. He again requested a lawyer stating, "he had been question me more than an hour now … your Honour said half an hour, it's more." 42 At the close of the evidence that day, the judge informed the appellant that if he wanted a lawyer he needed to make an application to Corrective Services for a legal aid lawyer. The judge also directed the DPP to make contact with the Legal Aid Commission and request that a solicitor be in attendance the following day. 43 On the following day, Wednesday 10 May a solicitor from the Legal Aid Commission attended the court. The solicitor informed his Honour that the Commission would engage a barrister for the limited purpose of providing advice to the appellant. The barrister would be available at 1 pm. The jury were brought in at about 11.20 am. The appellant then gave evidence in re-examination and some further cross-examination was permitted. 44 At 2 pm on that day a barrister appeared and informed the court that the appellant's "main matter for discussion" with him had been his desire to be legally represented and sought an adjournment. The adjournment was refused and the barrister left the court. The appellant made an application to have his wife recalled to give further evidence. During the course of the application the appellant stated: "your Honour, I want to go to a mental asylum."

Reasons for rulings 45 On 5 May 2006 his Honour gave reasons for refusing an adjournment, in relation to the application by counsel to withdraw and in relation to the capacity of the appellant. In his reasons his Honour set out the history of the matter including the fact that the appellant had had 6 legal representatives in the District Court. These included both Legal Aid solicitors and private practitioners. 46 His Honour expressed the view that from the evidence which by that point in the trial had been tendered the Crown case was a strong one. His Honour identified the fact that it depended upon the evidence of the complainant and DNA evidence. The matching of the DNA samples was based on a cigarette butt the appellant had smoked and a buccal swab taken from him. The complainant had given evidence in which she said she had not known the appellant prior to the incident. There was evidence from a psychiatrist that the complainant was likely to go mute when under real or perceived threat explaining the fact that she did not immediately complain when the event occurred. His Honour stated, that although the appellant's case was not known at that stage, it was difficult to see how identification could be an issue or that consent would be "alleged successfully if at all." His Honour accepted that there may be an issue as to the appellant's knowledge of the complainant's lack of consent. 47 His Honour addressed the question of the appellant's medical presentation. He referred to the complaints of a toothache which he said were manifested and accompanied by the appellant holding his mouth and jaw at a time when the question of bail was ventilated. His Honour said that "the apparent exacerbation of his condition on 5 May either preceded or accompanied the 'crunch time' when the accused clearly needed to consider whether to give evidence or not, in particular, for example, to explain the presence of the DNA samples on the complainant's breast and vulva." 48 His Honour said of the appellant's behaviour in court that on the morning of 5 May 2006 he came into court and commenced moaning and shouting. His Honour said that it was unclear whether the appellant's behaviour was because of toothache or diarrhoea. His Honour records the fact that at one stage the appellant disappeared below the dock in "what seemed to me to be histrionic behaviour." His Honour then said: "The accused was remanded in custody on the basis that the Corrective Service officers would immediately take him to hospital so that he could have pain killing injections and any other treatment deemed to be necessary. After an hour and a half he returned to court and indicated that he was 'a new man.' Mr Philopos then said that he wished to continue with the proceedings. His demeanour thereafter was in complete contrast to the exaggerated behaviour which had occurred previously." 49 His Honour dealt with the various applications for leave to withdraw made by counsel and then considered the further application for an adjournment so that he could obtain other legal representation. His Honour then said: "Given the accused's history of not making contact with his legal advisers and terminating the instructions of his present lawyers at this stage of the trial, any prejudice to the accused results from his own actions. The accused has had legal representation throughout the Crown case and up to, and including, the calling of his wife to give evidence in his own case. He has had ample opportunity to give his current and prior solicitors and counsel instructions on the basis of not only the Crown brief but also all the evidence given in the Crown case.

I have had particular concerns in this regard because Mr Philopos has a limited command of spoken English although he has answered questions on his own without waiting for the interpreter on a number of occasions. He is also unable to read and write English. Particular care and effort has been taken to explain to him-the procedures of the trial and to ensure adequate translation and interpreter services were available to him.

Having observed the accused during the trial, I am in no doubt that he is not only following the proceedings but also that he is aware of the implications of all that evidence for him. His presentation in court, his reaction to questions and comments and the flow of the evidence has to me all the hallmarks of a relatively astute individual.

The accused's right to a fair trial is the primary consideration - as well as the concomitant right to participate effectively in such a trial with appropriate legal advice. There is also the public and community interest in having trials proceed once they are fixed for hearing with sufficient notice to an accused of all aspects of the Crown case.

I need also to consider the interests of the witnesses who would have to give evidence again if a new trial was ordered - particularly the complainant who is a young woman for whom the giving of evidence was a painful experience, especially after the delays which have occurred. [The complainant] was recalled to give further evidence on the application of the accused.

It was clear that the complainant was suffering from depression and indeed had been admitted to the ward where the assault is alleged to have taken place by the Westmead Children's psychiatric team. She is still in a fragile situation and would feel even more keenly the disappointment and apprehension felt by all complainants in sexual assault cases when the decision is taken for a retrial.

I do not think it is in the interests of justice to permit the accused an adjournment to obtain new or additional legal advice. Inevitably any such adjournment would mean that a new counsel or solicitor, if one could be found on short notice, would have to read the transcript of the proceedings to date as well as having one or probably more conferences with the accused. There is a real risk that the trial would have to be delayed and possibly aborted given the conduct of the accused on prior occasions in failing to keep appointments or give instructions.

There is also no reason to think that the accused would be able to give any new advisors any different or additional instructions such that the same difficulties would not emerge as has been the case apparently with his previous advisers. In fact all the evidence would point to the contrary.

Following my decision to grant leave to Mr Trevallion and Mr Tsambas to withdraw, I refused the application for an adjournment. As I have indicated, Mr Philopos appeared, at least at some stages, to want the matter to go on.

Consistently with his rights as a self-represented litigant, I then informed Mr Philipos of the options available - see transcript 5 May, 2006 p 25 ff.

To proceed with the case without legal representation; 2. To adjourn the matter so that Mr Philopos could obtain legal advice; 3. To adjourn the case for a period on the basis of any reasons advanced by Mr Philopos 4. To hear the evidence that was forthcoming (essentially that of the accused's wife, Ms Hetti Philopos) and then adjourn the case. 5. To abort the trial.

Essentially Mr Philopos appeared to want the matter to go on to have his wife's evidence heard.

The Crown strongly opposed any further adjournment of the matter.

When the trial resumed, Mr Philopos gave evidence for a period of about an hour on 5 May. As will be apparent from the transcript, his evidence was detailed, clear, coherent, comprehensive and well structured. The fact that aspects of it were inconsistent did not, in my view relate to any aspect of mental incapacity.

Mr Philopos was able to outline his version of events sequentially both prior to and up to the date of the incident. My observation was that Mr Philopos was very thoughtful and aware of the implications of what he was saying and, in particular, the overall context in which that evidence was given.

This account included detailed recollections of who said what to him and to his wife, where he was at various stages including with his family doctor, subsequently at the Bankstown Hospital and then at the Westmead Children's Hospital and what happened to him and to his son, Samir.

At 3:50 pm on Friday afternoon, Mr Philopos came to a point in his evidence which apparently preceded his recounting of the relevant incident concerning what may have occurred with the complainant. He started to give evidence about what he had seen in terms of mental pictures of, inter alia, a ferocious lion. This followed on him recounting various bible readings which he had conducted and his feeling that there was an evil spirit in the room.

At this point the Crown objected. It seemed to me to be appropriate that Mr. Philopos have the benefit of the break over the weekend to consider the evidence he was to give on the following Monday.

He was also able to understand questions and quickly able to follow the tenor of suggestions made to him by me or the thrust of objections made by the Crown.

In those circumstances, it seemed to me that no prejudice was caused to Mr Philopos by continuing to give his evidence. He was clearly able to recall all that occurred and understood the issues and the evidentiary context and the implications for him.

I indicated to the Crown prosecutor that I would extend considerable leeway to the accused in giving his evidence.

Need for future legal representation during the trial

From the comments made by Mr Trevallion prior to his application for leave to withdraw, it does not seem that there are any other witnesses to be called on Mr Philopos' behalf.

Mr Philopos' evidence will be recounted to the jury during my summing up.

I have also provided to the accused an outline of the procedure to be followed during the trial (which document has been translated to him) and explained the various stages of the trial.

The proper approach to be adopted by a trial judge faced with an application for an adjournment by an unrepresented accused who seeks to obtain legal representation was outlined by Barwick CJ (with, whom Aickin and Wilson JJ agreed) and by Mason J in McInnis v The Queen (1979) 143 CLR 575.

(a) It is in the best interests of both the accused and the administration of justice that the accused be represented at his or her trial; (b) The trial judge ought very seriously to consider whether an accused should be forced on without counsel in any case in which there is. a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay; (c) In exercising his or her discretion as to whether to grant the adjournment, the judge must most carefully weigh all of the interest of the accused, the Crown, witnesses, jurors and (generally) the administration of justice.

(a) The importance of representation for an accused in a serious criminal charge cannot be too highly stressed; (b) The trial judge when exercising his other discretion is entitled to have regard to the interests of justice as well as to the interests of the accused; (c) Unless the interests of justice are overwhelming (emphasis added); so important is the, need for representation that the judge should permit the accused to pursue all avenues of obtaining legal aid to their conclusion.

On the question of whether His Honour's discretion miscarried; Chernov JA in R v Clinton James Osbourne (2002) 133 A Crim R 519 at [27] stated: 'It is important to emphasise that the Chief Justice (and, I believe, Mason J) considered that the interests of justice that were to be taken into account in determining an application for an adjournment of a trial, included not only the interests of the accused, but also those of the Crown, the witnesses, the jurors and the proper conduct of the trial ("the administration of justice"). In my view, it is apparent from what the trial judge in this case said, before and when refusing the adjournment application, that he had regard to the above principles and that he exercised his discretion in that context. That his Honour raised with the applicant on several occasions the question of his being represented at the trial and that he granted him and those representing him a number of adjournments to ensure that he was properly represented, reflects the judge's appreciation that the applicant was entitled not to be exposed to an unfair trial and of the desirability of his being legally represented at it. It is also apparent that his Honour took into account in the exercise of his discretion the fact that the adjournment was sought part way through the trial and after a number of Crown witnesses had been cross-examined by the applicant's counsel on key issues in the case. It was also not irrelevant for his Honour to take into account, as he did, that the applicant had been represented by experienced and competent counsel and the circumstances in which his brief had been withdrawn. Furthermore, the judge correctly, I think, had regard to the effect that a further adjournment would have on the proper conduct of the trial.'

In addition to the matters set out above which I have considered in relation to the facts of this case, what is particularly important in this case in assessing the overall fairness is the prior legal representation that the accused had had and the fact that he had been represented by competent and experienced counsel during the trial including all aspects of the Crown case.

Although there may be some prejudice to the accused by being forced on to complete the last stages of his evidence in these circumstances without legal representation, that prejudice is outweighed by the public interest in the trial proceeding. That public interest includes the interests of the complainant and other witnesses, as well as the legal aid and other funding authorities and those concerned with the criminal justice system.

In terms of suggestions of physical illness the report of the consultant psychiatrist, Dr Wong, obtained by the Crown (report dated 27 July 2004) indicated that the accused has had 3 admissions to psychiatric hospitals, including Canterbury Hospital and Bankstown Hospital, as well as Banks House. The accused's complaint of having contact made with him by the devil at various times was canvassed by Dr Wong.

Dr Wong also sets out that the accused had been apparently diagnosed on prior occasions as having some vague delusional ideas of a persecutory nature. He also had a history of smoking marijuana.

He had been admitted to Banks House on 3 June, 2003, in other words, 2 months after the incident which gave rise to the present indictment. At that stage he presented with a history of visual and auditory hallucinations which had apparently commenced about three weeks earlier. As. the Crown submitted, that post-dated the incident which gave rise to the charges.

Mr Philipos did not give any history of previous admission to hospital or any psychotic episodes.

Dr. Wong's view was that there was no convincing evidence that the accused was suffering from a psychiatric disorder. Mr Philopos' answers were said to be at times "vague, off the point and imbued with religious themes, especially when his understanding of the criminal justice system and his charges were discussed".

Dr Wong thought that some of Mr Philopos' presentation, in particular, not responding to questions and his abnormal demeanour was 'contrived'. Dr Wong also thought the accused had no thought disorders and he, Dr Wong, had no difficulty engaging in rational discussion with him.

Dr Wong reviewed the various reports and found that there was no evidence that Mr Philopos was suffering from any psychiatric symptoms at the time of the alleged offences.

In the fitness hearing Dr Wong also referred to the evidence (10 May 2005, page 5, lines 25 and following) that the accused had been examined for a diagnosis of neurosyphilis.

The conclusion was that the accused had syphilis in the remote past but following the EEG and MRI brain scan tests performed all the evidence was negative, that there were no abnormal findings. In terms of the other psychiatric evidence before the court and fitness hearing, Dr Westmore said (report 1 March 2004) that he thought his (Mr Philopos) responses were a little disorganised and at times confused or illogical. He could not offer any psychiatric explanation for his presentation in relation to that aspect of his history. Nor could Dr Westmore find any clear evidence of psychotic thought processes. His second report (12 March) stated that Dr Westmore thought that Mr Philopos would be able to provide some type of account as how the problems occurred and that his understanding of the other fitness issues appears to be "relatively intact". A third report (21 April 2004) said that on the basis of the material available to Dr Westmore at that stage he was unable to reach any definitive psychiatric diagnosis.

Dr Westmore gave a "provisional diagnosis" that he was suffering from a schizophrenic illness and that Mr Philopos' understanding of the Presser issues seems to be compromised.

Further reports were provided by Dr Allnutt (14 September 2004) in which Dr Allnutt said that Mr Philopos manifested significant cognitive difficulties that indicated a possible underlying disorder in addition to his schizophrenia.

In his further report dated 1 February, 2005 Dr Allnutt canvassed his assessment suggesting a possibility of exaggeration of symptoms. It was also said that it was difficult to rule out any underlying mental disorder as well as exaggeration of at least some of the symptoms even if he, Mr Philopos, had an underlying mental disorder.

Mr Trevallion had also sought with his solicitor to have the accused independently psychiatrically assessed. Arrangements had been made on Friday 28 April, 2006 (in other words on the fourth day of the trial) for Mr Philopos to attend Dr Westmore, a psychiatrist who had been involved in the earlier fitness proceedings.

No further evidence was forthcoming during the next week of the trial. Indeed, Mr Trevallion repeated what had been said at the outset of the trial, effectively that the accused's fitness would not be an issue.

I do not see anything on the basis of Mr Philopos' presentation in the trial to date which would warrant an application for a new or additional fitness hearing. The accused has made a number of references to the devil or demons appearing to him and hearing voices. That-appeared to be in the context of the evidence that he heard sounds of a man and a woman in the next room, which he appeared to portray as having a sexual 'panting' similarity. In my view, that was clearly fanciful.

The clear inference from the evidence from his wife was that many of his symptoms seem to have emerged after the incident and at the time when or shortly before he was arrested.

I grant Mr Trevallion and Mr Tsambas leave to withdraw. I refuse the application for an adjournment.

Appeal against conviction 50 There are 3 grounds of appeal.

Ground 1: the learned trial judge erred in law by failing to grant an application by the accused's counsel for an adjournment for the purpose of obtaining medical assessment as to the state of mind of the appellant, his fitness to continue in the trial by reason of mental health concerns. 51 The record of the trial indicates that there may have been two occasions when the question of the appellant's state of mind was raised. The first occasion was on 26 April when counsel expressed a preference that the matter be adjourned. However, counsel ultimately acquiesced in the trial commencing. The assessment which counsel adverted to was undertaken by Dr Westmore on 28 April. On that day the prosecutor said: "it would seem also that the defence are not pressing and are not making any application that he [the appellant] is somebody who is unfit and indeed the defence counsel has indicated that the assessment is such that he can obtain instructions." The results of the assessment were not made known to the judge. 52 It must be remembered that on 1 May the trial judge reminded counsel that the fitness of an accused person could be "re-ventilated" at any time. On that occasion counsel expressly stated that there was no application to be made. In view of this fact the submission made to this Court that the judge should have "actively supported the preparation of a medical assessment report" must be rejected. 53 An examination of the record of the trial indicates that the problem faced by defence counsel was not that he could not get instructions but rather that the instructions he was receiving were in conflict. This is probably not surprising. The account of the events which the appellant first gave to the police was clearly contradicted by the scientific evidence. Once this became available the appellant's attempts to provide innocent explanations inevitably led him into conflict. 54 The appellant complains that there was insufficient opportunity for his legal representatives to place any contemporaneous medical evidence before the court. Given the course of the trial and the many adjournments this submission is entirely without substance. 55 The second occasion when the appellant's mental health was referred to in the context of an adjournment was on 5 May. However, the stated purpose of the request for an adjournment on that occasion was to obtain fresh legal representation rather than a medical assessment. Counsel did not submit that the appellant was unfit to stand trial and confined his observations to the fact that the appellant had engaged in "erratic behaviour." 56 In my opinion the submission that his Honour erred by failing to grant an adjournment for the purpose of obtaining a medical assessment is without foundation. The pace of the trial interrupted, as it was, by many adjournments provided numerous opportunities for the defence to have obtained medical assessments if it was believed they were necessary.

Ground 2: the learned trial judge erred in law by permitting the trial to continue where the accused was left unrepresented at a crucial point in the accused's case and in circumstances where the accused's counsel had indicated his concerns as to the mental state of the accused.

Ground 3: the learned trial judge erred in law by not providing the accused with an opportunity to obtain alternative legal representation prior to the conclusion of the trial in circumstances where the accused's then former legal representatives had indicated to the court doubt about the capacity of the accused to give coherent instructions. 57 It is appropriate to deal with these grounds of appeal together. 58 I have already related the circumstances in which defence counsel and his instructing solicitor withdrew. Their difficulty was not an absence of instructions but rather conflicting instructions. As I have already indicated I am satisfied that that conflict was created by the need for the appellant to have an explanation of his actions having regard to the DNA evidence tendered by the Crown. The transcript indicates that as the time for the appellant to give evidence came closer he became increasingly anxious. 59 The Crown case closed late on Wednesday 3 May. That afternoon, during a break in the conference room, the appellant behaved histrionically banging his head against the wall and crying. Thereafter the proceedings were delayed due to the appellant variously complaining of diarrhoea and toothache. Defence counsel reported that on the morning of 5 May the appellant was "quite hysterical while … talking to me" and counsel understood "his services had been terminated." 60 It was entirely because of the appellant's behaviour that counsel withdrew. Thereafter the appellant completed his evidence which he gave at length and with considerable detail. Apart from part of the time when he was giving his own evidence, the appellant had been legally represented throughout the trial. After counsel had withdrawn the trial judge regularly gave the appellant assistance. As it happens no submission is made that, by reason of the lack of representation at the end of the trial, the trial was not fair. 61 When determining that the trial should continue the judge concluded that there was no evidence that the appellant was mentally unfit to continue his trial. As I have already said there had been many opportunities for such evidence to be obtained if it was available. Furthermore, this was not a case where an accused without means and through no fault of his own was denied the opportunity to have legal representation. The appellant had been represented by a series of lawyers who had felt obliged to withdraw. 62 The relevant principles were considered by the High Court in Dietrich v The Queen (1992) 177 CLR 292. An accused person has a right to a fair trial, which includes the right to retain counsel. In some circumstances a lack of legal representation may result in a miscarriage of justice. In Dietrich Mason CJ and McHugh J said at 315: "In view of the differences in the reasoning of the members of the court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial." 63 The reference to "no fault on his or her part" was not explained. However, the High Court returned to that the issue in Craig v South Australia (1995) 184 CLR 163. After setting out the passage from the reasons of Mason CJ and McHugh J in Dietrich which I have set out above the court said at 183-184: "The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being 'through no fault on his or her party' was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: … what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune. A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused." 64 In the present case the appellant had been represented at various stages in the process. His ultimate legal representatives withdrew towards the end of the trial. It was the appellant's conduct which caused them to withdraw and his Honour was satisfied that it was likely that the appellant would not be able to give instructions which would enable any other lawyer to appear for him. 65 There have been a number of cases where the accused has been at fault causing his legal representation to withdraw. In Greer v R (1992) 62 A Crim R 442 the court held that an accused was not entitled to an adjournment when he had unjustifiably withdrawn his instructions from counsel at the commencement of the trial. In Frawley v R (1993) 69 A Crim R 208 the accused was charged with murder. After an unsuccessful application to adjourn defence counsel withdrew on the day of the trial prior to the jury being empanelled. The adjournment was sought because of a "series of matters" which counsel said his client wanted argued and investigated. The decision was given after the decision in Dietrich. Gleeson CJ observed that the "series of matters" were revealing and indicated that it was unlikely that the appellant could ever be satisfied with his legal representation. 66 In the present case the trial judge observed: "There is also no reason to think that the accused would be able to give any new advisors any different or additional instructions such that the same difficulties would not emerge as has been the case apparently with his previous advisors. In fact all of the evidence would point to the contrary." 67 The South Australian Court of Criminal Appeal recently reviewed the law in relation to these issues in R v IAS (2004) 146 A Crim R 416; [2004] SASC 240. The accused was charged with rape and during a trial which lasted two weeks two sets of barristers and instructing solicitors withdrew. The second set of lawyers withdrew one day prior to the completion of the trial. After the appellant was unrepresented a number of witnesses were called by the Crown, none of whom were cross-examined. The court determined that it was the appellant's choice to terminate the instructions of his lawyers and, in the circumstances, he had not been denied a fair trial. 68 Complaint is made that although defence counsel and his instructing solicitor had not procured a report from Dr Westmore following his examination on 28 April 2006, the court should nevertheless have enquired of the appellant's fitness to stand trial unrepresented. Section 10 of the Mental Health (Criminal Procedure) Act 1990 provides a mechanism to deal with a person's unfitness to be tried after arraignment and at any time during the course of the proceedings. The judge was aware of these provisions. However, the judge is not obliged to provide an enquiry into the matter where it appears to the court that the question has not been raised in good faith: s 10(2). 69 On 28 April after the appellant had consulted with Dr Westmore, defence counsel abandoned his suggestion that the appellant might be unfit to stand trial. When reminded by the judge on 1 May that the issue could be re-ventilated counsel expressly stated that the application had been abandoned. On 5 May defence counsel did not raise the question of the appellant's fitness. Although neither party raised the issue it was considered by the judge who said in his reasons for ruling "I do not see anything on the basis of Mr Philopos' presentation in the trial to date which would warrant an application for a new or additional fitness hearing." The trial judge also observed that the appellant had "all the hallmarks of a relatively astute individual" and that "his evidence was detailed, clear, coherent, comprehensive and well structured. His Honour expressed the view that the appellant "was also able to understand questions and quickly able to follow the tenor of suggestions made to him by me or the thrust of objections made by the Crown" and that he "demonstrated the ability to understand the subtleties of questions." His Honour expressed the view that the appellant's "erratic behaviour" did not raise a fitness issue. With respect to the occasion when the appellant refused to take the oath the judge stated "my observation was that those actions were done to manipulate or delay the situation and did not arise out of any mental abnormality or incapacity." 70 In my opinion his Honour's decision that the trial should continue without a further fitness hearing and in the absence of legal representation for the appellant was not affected by error. 71 In any event this was an overwhelming Crown case. The appellant's explanation for his admitted sexual activity with the complainant, who was hospitalised because of her psychiatric problems, was never likely to be accepted. The objective evidence from the analysis of the available DNA ensured that the appellant would be convicted. Even without legal representation at the final part of his trial the appellant was not denied the prospect of an acquittal (McInnis v The Queen (1979) 143 CLR 575 per Mason J at 583).

Application for leave to appeal against sentence 72 The appellant submitted that the sentence imposed for the offence of sexual intercourse contrary to s 61I is manifestly excessive. 73 The appellant was represented at the sentence hearing. He was aged 46 at the time and was married with 3 young children. Evidence was tendered both by the Crown and the appellant relating to his mental health. He was admitted from 3 June until 1 July 2003 to Banks House, the psychiatric ward at Bankstown Hospital where he was diagnosed with schizophreniform psychosis which was possibly drug induced. 74 Medical reports were tendered from Dr Allnutt, psychiatrist, who in his second report dated 1 February 2005 considered the appellant was being deliberately vague and feigning cognitive memory impairment although he could not rule out an underlying medical disorder. Dr Wong a consultant psychiatrist also saw the appellant. He formed a similar view to Dr Allnutt. 75 There were four reports from Dr Westmore, a psychiatrist who provisionally diagnosed the applicant as suffering from schizophrenic illness in April 2004. However, Dr Wong disagreed and did not accept that the appellant's description of his hallucinatory experiences was genuine. 76 The impact of the offences upon the victim was considerable. She was in hospital under the care of psychiatrists at the time of the offences suffering with anxiety and depression. After these events her problems were exacerbated and she turned to self-harm. She lost trust in other people and became anxious even with family members she had known for years. She learned that the appellant had previously contracted syphilis which had a profound affect upon her. 77 The trial judge found that the offences involved "an opportunistic and exploitive series of acts." They extended over about an hour and were of increasing seriousness ultimately comprising penile/vaginal penetration. Although his Honour, in my opinion, correctly characterised the factual findings in this manner the individual sentences which he imposed were concurrent. In the circumstances this was a lenient approach. 78 The appellant had abused the position of trust in which the hospital had placed him by permitting him to stay with his own child overnight in the ward. The trial judge found that there was no remorse and that it was "difficult to see … any evidentiary platform … for rehabilitation." There was no suggestion that the appellant was suffering from a mental disorder at the time of offending which may otherwise have made general deterrence of less significance. His Honour was satisfied that the appellant was not suffering any significant psychiatric disorder at the time of sentencing. 79 Although the appellant had previous convictions his Honour did not consider them to be relevant to the sentencing for the present offences. It was argued at the sentence hearing that the offences fell below the mid-range of criminality, but counsel for the appellant could not advance any reason beyond the claim that the appellant had "a mental illness or a predisposition to it" to support the submission. The sentencing judge found that the offences of sexual intercourse fell "at the very least of mid-range criminality." It was submitted to this Court that because there is a body of material which supports the proposition that, whilst fit to plead, the applicant suffers or has suffered an ongoing mental disability, a lesser sentence should have been imposed. However, it was open to the trial judge to reject the views expressed by Dr Westmore that the applicant was probably mentally ill at the time of the offences. Dr Wong took a different view. 80 The overall non-parole period represented 66.6% of the overall total term of the sentence being a reduction of one year of the non-parole period from the period provided by the statute. Although this Court has expressed reservations as to whether a first time custodial experience is a factor relevant to special circumstances (see R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 per Spigelman CJ at [15], R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268 per Wood CJ at CL and Howie J at [10]-[11]) his Honour accepted this to be a factor relevant to his finding in the present case. 81 Finally it was submitted that the sentence should have provided a non-parole period no greater than the standard for the sexual intercourse offences; being 7 years "and probably less." The non-parole period which his Honour provided was 8 years. However, in my opinion these were particularly serious offences. Advantage was taken of a 16 year old girl who had been hospitalised with psychiatric problems. The appellant assaulted her over a period of time during which, because of her condition, she was unable to complain or effectively resist his advances. The offences involved digital penetration followed ultimately by penile/vaginal penetration. In my opinion a total non-parole period for all of the offences in excess of the standard non-parole period was not excessive.

Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted but the appeal dismissed. 82 JAMES J: I agree with McClellan CJ at CL. 83 BARR J: I agree with McClellan CJ at CL. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (69 paragraphs)

Parties

Cases Cited (7)