Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan

The Mental Health (Forensic Provisions) Act

1. Section 4 of the Mental Health (Forensic Provisions) Act provides that Part 2, Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders, applies to criminal proceedings in this Court, including criminal proceedings within its summary jurisdiction.
2. In Hinch v Attorney-General (Vict) [No 2] (1987) 164 CLR 15 it was observed at 89, however, that: "Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event."
3. In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 89 ALJR 622, it was the provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) which arose to be considered, contempt proceedings having been brought in which it was alleged that the appellant had disobeyed orders made by Hollingworth J. Those Rules applied to civil proceedings brought in that Court. There reference was made to Hinch and other authorities, including Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, a case concerned with an allegation of contempt arising out of a failure to obey orders made by Powell J, of this Court. In that case, the plurality observed at 534 that the process whereby a contempt proceeding is resolved is a civil "hearing", not a criminal "trial" and McHugh J expressed the view that proceedings to punish a respondent for contempt are "civil and not criminal proceedings" (at 549). In the result, the High Court concluded that the contempt proceedings in question in CFMEU v Boral Resources (Vic) Pty Ltd, were also civil proceedings.
4. As I discussed in Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 6) [2014] NSWSC 153 at [24], given the nature of the conduct alleged to amount to Mr Chan's contempt in the face of the Local Court, he faces an allegation of criminal contempt, notwithstanding that this conduct occurred in civil proceedings.
5. In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, Gleeson CJ observed at [2] that: "The distinction between civil and criminal contempt is in some respects unsatisfactory, but the Supreme Court Act adopts the distinction for jurisdictional purposes, and therefore it must be applied. The question is whether, on the true construction of s 101 of the Act, the present case falls on the civil or the criminal side of the line."
6. In Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, the view was taken that in this State, the distinction between civil and criminal contempt, although artificial in some respects, remains a critical one, because of the different appeal rights granted in s 101 of the Supreme Court Act.
7. Section 101 of the Supreme Court Act relevantly provides: "(5) An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. (6) Subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt."
8. Part 55 r 13 of the Supreme Court Rules 1970 (NSW) has been held to confirm the Court's sentencing powers, but not to exhaust them (see Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314). It provides: "13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. cf HCR, O 56, r 9. (2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both. (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security."
9. In Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352 Howie J observed that proceedings for contempt are governed by the Supreme Court Act and the Supreme Court Rules, but that a prosecution for criminal contempt, although dealt with summarily, does not fall within the summary jurisdiction of this Court, to which Ch 4 of the Criminal Procedure Act 1986 (NSW) and Pt 75 of the Supreme Court Rules apply (see [8] - [12]).
10. In Attorney General of New South Wales v Whiley (1993) NSWLR 314, it was held at 320 - 321, that the Sentencing Act 1989 (NSW) applied to criminal contempt, the view taken being that the Act was a "code in respect of procedures to be followed where a person is sentenced to imprisonment by a court" (at 320) and that there were strong policy reasons for applying that Act to persons being sentenced for contempt. Those reasons included consistency in sentencing, potential access to parole and greater flexibility in sentencing structures, so as to take account more readily of the interests of the community and the offender. That conclusion also turned on the objects stated in the preamble to the Act, various definitions and the provisions of s 5, which imposed mandatory obligations on a court when sentencing a person to prison.
11. In Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527, Studdert J took a similar view in relation to the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the provisions of s 4, which expressly contemplates that the Act will apply to common law offences. That approach has been repeatedly followed since (see for example Ryan v Wright (No 2) [2004] NSWSC 1019 at [21]; Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115 at [26]; Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912 at [6]).
12. In my view similar policy considerations drive the conclusion that the provisions of the Mental Health (Forensic Provisions) Act also apply to persons who are charged with criminal contempt. That would mean, in an appropriate case where a defendant was found not to be fit to be tried, he or she would be referred to the Mental Health Review Tribunal for assessment under s 14. By way of contrast, if the Act did not apply and a finding of unfitness was made, the proceedings would be permanently stayed (see Mantell v Molyneux [2006] NSWSC 955; (2006) 68 NSWLR 46 at [28]).
13. The difficulty with concluding that the Mental Health (Forensic Provisions) Act does apply to persons charged with contempt, is that the provisions of the Act themselves, do not lend themselves to that construction.
14. The term "criminal proceedings" is not defined in the Mental Health (Forensic Provisions) Act. It must, accordingly, be given its ordinary meaning, which does not, on my understanding of the High Court's decisions in Hinch, Witham v Holloway and CFMEU v Boral Resources (Vic) Pty Ltd earlier discussed, comprehend proceedings for criminal contempt, either at common law, or when brought in accordance with the provisions of the Supreme Court Act and the Supreme Court Rules.
15. In the result, it must be concluded that the provisions of the Mental Health (Forensic Provisions) Act do not apply to Mr Chan. It follows that if he is found unfit to be tried, the proceedings must be permanently stayed.

Is Mr Chan fit to be tried?

1. The question of Mr Chan's fitness has to be approached in light of his conduct in these proceedings.
2. Mr Chan was repeatedly given the opportunity to be examined by a psychiatrist he selected. He was finally given, but refused the opportunity to be examined by Dr Allnutt. Nor did he arrange to be examined by some other psychiatrist. He also refused to provide relevant medical records for Dr Allnutt to consider and did not himself tender any records at the fitness hearing, even though some records had been produced on subpoena. He also objected to the plaintiff having access to those documents. He also led no other evidence to support his claim, that he was not fit to be tried.
3. Section 12 of the Mental Health (Forensic Provisions) Act envisages that at a fitness inquiry, the accused person is to be represented by an Australian legal practitioner, unless the Court otherwise allows. Even if that Act applied to Mr Chan, he has had the benefit of this provision, as I have explained in earlier decisions (see Chan (No 13)). He was referred to pro bono legal assistance, with which he was provided, but would not accept. That was his second referral. I declined to make a third referral for such legal assistance in his favour in these proceedings (see Chan (No 13)).
4. The starting point for any fitness assessment is that unless there is material which suggests otherwise, a person is presumed to be fit (see Eastman v The Queen [2000] HCA 9; (2000) 203 CLR 1 at [86]). It was Mr Chan who raised the question of his fitness. The plaintiff then accepted that there was material which raised the question of his fitness, with the result the pursuit of a psychiatric examination.
5. There is no question that at times Mr Chan has not acted wisely or in his own best interests, as decisions I have earlier given reveal, including when he refused to accept legal advice he was given pro bono and when he elected not to lead evidence, or make submissions on the question of his fitness. Nevertheless, that alone is not a proper basis on which it can be concluded that he is not fit to be tried (see R v Ngatayi [1980] HCA 18; (1980) 147 CLR 1 at 6 - 11).
6. Evidence as to his fitness finally came from Dr Allnutt, who produced a report in circumstances which have also been outlined in earlier decisions (see Chan (No 13)). He was called to give oral evidence and was cross-examined by Mr Chan in circumstances described in Chan (No 13). I am satisfied that Mr Chan has had a fair opportunity to cross-examine Dr Allnutt and to lead other evidence, if he wished.
7. In the circumstances, the question of Mr Chan's fitness must be determined on the basis of Dr Allnutt's evidence. Mr Chan has refused to be examined, as is his right, even though it was he who raised the question of his fitness. That means that some caution has to be exercised as to the conclusions which are reached.
8. Dr Allnutt's report revealed that he had been provided with numerous documents, including the initiating summons and supporting affidavit, various pleadings, affidavits, submissions, judgments given in these and other proceedings in which Mr Chan has been involved, which have been referred to in these proceedings, as well as the transcript of these proceedings. He was also provided with a copy of the judgment in R v Presser [1958] VR 45.
9. In cross-examination, Dr Allnutt agreed that he would have been assisted in coming to his conclusions, had he been provided with relevant medical records and been given an opportunity to examine Mr Chan. He explained that his opinions rested on his review of the documents he had been provided, which he explained had taken him some five to six hours to consider, although he said that he had not read every page of the transcript he had been provided.
10. Mr Chan relied on this to object to the receipt of Dr Allnutt's report, submitting that it had not been prepared in accordance with the Court's orders and that it was not reliable and should not be given much weight. Those submissions could not be accepted. Dr Allnutt is a forensic psychiatrist, obviously fit by his qualifications and experience to undertake the exercise he was instructed to undertake. Not every page of the transcript he was provided was relevant to that exercise, for example when other witnesses were giving evidence, or Ms Baker was making submissions. It was a matter for his professional judgment to determine those parts of the transcript which were relevant to the exercise he had been engaged to undertake.
11. Dr Allnutt's opinion was based on his review of the materials with which he had been provided, which he outlined in his report. A number of questions had been posed to him, which he there answered.
12. They included: "b) Does Mr Chan meet the diagnostic criteria for a psychiatric condition? If yes, please identify the condition, its traits or symptoms, the level of its chronicity and its likely duration. Given that Mr Chan did not attend the interview and given I did not have available to me any psychiatric reports or clinical notes to appraise, from other clinicians who have seen him, I am unable to provide a diagnosis. However, I do believe that the material provided raises a clinical concern that Mr Chan presents as an individual with a paranoid condition (the documentation reflects a belief that he has about a conspiracy involving a wide range of individuals, over a lengthy period of time, based on relatively weak evidence - and that this at times impacts on his decisions as a litigator in his own case). He believes he is victim of a longstanding, wide-ranging conspiracy involving neighbours, drug dealers, and corrupt officers of various government departments, including Department of Housing, (also the courts, Crown Solicitors), his landlord (and others); that these conspirators seek to distract him from preparing for hearings. He believes that that the contempt proceedings were being pursued for an ulterior motive; his related to public housing tenancy and corrupt persons employed by the Department of Housing and their dealings with drug dealers. This sort of belief raises suspicion of a mental condition - if so then, the differential diagnosis would include a delusional disorder or paranoid personality disorder, but this would need to be clarified through proper examination by way of psychiatric interview, or appraisal of the opinions provided by other psychiatrists in documentation. I do not make a formal diagnosis at this stage. c) Is Mr Chan able to understand that he is charged with contempt of court as set out in the summons filed on 9 November 2012? Based on the information provided to me, I am unable to identify significant impairment in his cognitive capacity which would limit his capacity to understand he is charged with contempt of court as set out in the summons filed on 9 November 2012."
13. Dr Allnutt also considered that Mr Chan demonstrates, through his capacity to litigate his case, capacity to understand the meaning of the terms "guilty" and "not guilty" and the consequences of such terms in relation to a contempt charge; that he had the capacity to understand court proceedings and in particular, that these proceedings concern an enquiry as to whether he has committed a contempt of court; that he has the capacity to understand the role of the judge, jury, prosecution, his lawyer and the purpose of the proceedings, being an enquiry into his guilt or innocence with regard to the alleged contempt, as evidenced by the litigation he has pursued; that no significant cognitive incapacity, which would limit his capacity to understand the evidence given against him had been detected; that he had sufficient capacity to decide what defence he would rely on; that the difficulties he had demonstrated were not because of a gross impediment to provide a version, once in the witness box, but rather a reluctance to enter the witness box. Dr Allnutt considered that Mr Chan's reluctance could be driven by his underlying delusional beliefs, but that could not be stated beyond the level of a possibility, because holding beliefs that authorities are pursuing one for ulterior motive is sometimes found in people without mental health problems and is sometimes factually based. Dr Allnutt considered that even if not factually based, that did not render a person unfit to stand trial, but raised a factual matter, for the court to decide.
14. In the result, Dr Allnutt concluded: "In my view the evidence provided is insufficient to negate the presumption of fitness to be tried."

The test

1. The evidence must be considered in light of the test discussed in R v Presser at 48: "[the question] is whether the accused because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."

Mr Chan does suffer a relevant mental condition

1. I am satisfied on the evidence that Mr Chan suffers from a mental condition of the kind discussed by Dr Allnutt, namely, one that involves either delusions, or paranoia or likely both.
2. That conclusion is compelled not only by Dr Allnutt's opinions, but also by what Mr Chan has said repeatedly, as to the conspiracy which he believes that he is the victim of and by his behaviour, including when Dr Allnutt was called, which I described in Chan (No 13).
3. At one time, Mr Chan believed that I had been influenced by that conspiracy. Later he came to conclude, if he is to be believed, that I have joined that conspiracy. I say, if he is to be believed, because while Mr Chan's conduct is consistent with him suffering from delusions and/or paranoia, he is also plainly a highly intelligent man, a very experienced litigant, who usually considers carefully the course he believes will best advance his interests, before it is pursued. At times, his conduct suggests that some of his behaviour is deliberate, influenced by a desire to achieve whatever particular goal he then perceives to be in his interests, rather than the result of any delusion or paranoia. That reservation does not, however, detract from the conclusion which I have reached, that he does suffer a relevant mental condition.
4. As discussed in Eastman, it is not unusual, however, for courts to have to deal with people with mental disorders; sometimes severe ones. The fact that Mr Chan may suffer from such disorders does not, of itself, render him unfit, even if his paranoia and delusions relate to the subject-matter of these proceedings. Nor does the fact that he suffers from a mental disorder which may cause him to conduct his defence in a manner which is contrary to his interests. Of itself, that does not lead to the conclusion that he is unfit. Nor does the fact that his behaviour disrupts the orderly flow of the proceedings, as it undoubtedly has on occasions, as I have discussed in various of the decisions I have given.

Mr Chan is fit

1. I am also satisfied that Dr Allnutt's view that Mr Chan is fit to be tried, must be accepted.
2. Mr Chan is an experienced litigant, conversant with court procedure. His conduct of these proceedings has amply revealed his understanding of the charge and the nature of the proceedings which he faces, from the outset. The defence he has explained he wishes to pursue, has revealed his understanding of the contempt with which he has been charged. That was revealed not only by his submissions and cross-examination of witnesses, but also the evidence he himself has given, while pursuing the case he wished to advance in answer to the charge. He has plainly been able to follow the course of the proceedings, what is going on in court and the nature of the evidence led against him, as well as explaining his own attitude to the case advanced against him.
3. Given the seriousness of the allegations, I have twice referred Mr Chan for pro bono legal assistance, which he received. While not prepared to accept the advice he was given, with the result that applications by those legal practitioners for leave to withdraw were granted, his capacity to instruct them, so that they could inform the Court of his position, was demonstrated.
4. I am well satisfied that Mr Chan's mental capacity is such that he is able to make a defence. It is not necessary to be satisfied that the decisions which he makes are in his best interests. He is clearly well able to make the defence which he wishes to advance and to make his version of the facts known to the Court, as he was in the midst of doing, when he raised the question of his fitness. That forensic decision, as it transpired, was one which itself supported the conclusion that he is fit to be tried, as did his cross-examination of Dr Allnutt, who said in answer to questions asked of him by Mr Chan, that Mr Chan's conduct of that cross-examination had confirmed Dr Allnutt in his view that Mr Chan was fit to be tried.
5. There was a good reason for those answers being given by Dr Allnutt. That Mr Chan is fit to be tried, was well established both by the evidence and by the questions he asked in that cross-examination, notwithstanding the difficulties caused by his rather erratic behaviour, before he commenced that cross-examination.

Orders

1. For the reasons given, I find that Mr Chan is fit to be tried and order, accordingly, that the hearing now proceed.

Amendments 21 August 2015 - typographical error - "Dr Allnut" changed to "Dr Allnutt" throughout the judgment 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. Decision last updated: 21 August 2015