In these proceedings, Mr Chan is alleged to have committed a contempt of the Local Court. Mr Chan raised the question of his fitness to be tried, while giving evidence in May 2014. The hearing was eventually adjourned, in order for that question to be determined. The fitness hearing proceeded on 2, 3 and 6 July 2015, when it was adjourned to give Mr Chan the opportunity to advance his submissions as to his fitness in writing.
These are the reasons for various rulings given during the course of that hearing, which proceeded with the greatest of difficulties.
[2]
Refusal of adjournment applications
On 14 May 2014, Mr Chan himself initially raised the question of his fitness. On the one hand he denied being mentally ill, but on the other said that whether he was, was a crucial issue in the case, going to his competence and capacity under s 12 and s 13 of the Evidence Act 1995 (NSW). The Prothonotary confirmed that it was not suggested that Mr Chan was suffering from any mental illness and that his mental capacity was not being put in issue.
On 16 May, Mr Chan gave evidence that he was a mentally ill person, with a serious mental illness and that he wished to challenge his competence to give evidence. The evidence which he then gave, raised a concern, the Prothonotary accepted, not necessarily about his competence to give evidence, but his fitness to be tried. It was that development which gave rise to an investigation into Mr Chan's fitness.
Despite Mr Chan himself having raised the question of his mental health, he later refused to waive his privilege in relevant records, when orders made and subpoenas issued did not result in the production of reports which Mr Chan claimed existed, as to his mental health. He also eventually refused to be psychiatrically examined by any of the experts identified by the Prothonotary as available to assess his mental health. Mr Chan did not make arrangements himself to undergo such an examination. The question of whether he had raised the question of his fitness in good faith has been raised and will have to be considered.
Mr Chan was given, but did not avail himself of repeated opportunities to be examined by Dr Allnutt, the psychiatrist finally selected by the Prothonotary to assess Mr Chan's fitness to be tried in 2015. Mr Chan was eventually given a final opportunity to be examined by Dr Allnutt on 15 May 2015 of which, again, he did not avail himself.
Dr Allnutt produced a report and was called at the fitness hearing. He was available to be cross-examined on that report on 2 July. Much of that day was taken up with various applications which Mr Chan then pressed.
They were refused in circumstances where, on 14 May 2015 the matter was before me on Mr Chan's application. He then wanted to have the assessment of his fitness deferred, so that he could pursue a motion which he had filed in October 2014, but had not to that point pressed. He was then not ready to proceed with that application, because he wished to amend the motion in terms which he had not resolved. I refused that application and adjourned the matter to 15 June for directions (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 12) [2015] NSWSC 572). The motion has still not been amended.
Later on 14 May, Mr Chan appeared before the duty judge, Adams J, requesting leave to file an urgent summons to appeal to the Court of Appeal. His Honour refused that application.
Mr Chan did not appear on 15 June when the fitness hearing was fixed and various direction were given, after the Prothonotary advised that while Mr Chan had not attended the appointment with Dr Allnutt on 15 May, Dr Allnutt had provided a report, which had been served on Mr Chan.
Mr Chan approached my Associate later that morning and asked for the matter to be relisted. He was advised that he had to proceed in the usual way, by giving the Prothonotary notice of any application which he wished to make before the matter was relisted. That accorded with advice I had earlier given Mr Chan and also with what I had directed earlier in the proceedings, when Mr Chan had made other applications without any prior notice being given (see for example Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 8) [2014] NSWSC 596 at [8]). The Prothonotary's solicitor enquired of my Associate later that morning whether the matter had been listed before me at 2pm and was advised that it had not.
Later that day, Mr Chan appeared before the duty judge, Campbell J. His Honour refused to deal with the matter, because he had advised Mr Chan on a pro bono basis before his appointment and Mr Chan had complained about his conduct to the Bar Association and the Legal Services Commission; and because he took the view that the matter being part-heard, Mr Chan had to go through the normal procedures if he wished to have the matter relisted.
On 22 June, Mr Chan again approached the duty judge, Beech-Jones J. Mr Chan then sought, amongst other things, leave to file various appeals and applications in respect of various judgments earlier given in the proceedings. He also sought again to be referred for pro bono legal assistance. His Honour dismissed those applications observing, amongst other things, that Mr Chan is bound by orders made under the Vexatious Proceedings Act 2008 (NSW) and has to abide by the regime imposed upon him by those orders (see Prothonotary v Chan (Supreme Court (NSW), Beech-Jones J, 22 June 2015, unrep).
At the commencement of the hearing on 2 July Mr Chan made fifteen applications by which he sought to have the fitness hearing adjourned again. No notice had been given of those applications and the adjournment was opposed, raising as they did matters which had been dealt with earlier in the proceedings, both by myself and the duty judges Mr Chan had approached. They were:
1 directions for the hearing of the October 2014 motion;
2 directions that he be examined by another medical professional;
3 another referral for pro bono legal assistance;
4 an adjournment until another lawyer he had approached to provide him with pro bono legal assistance returned from overseas and could consider his application;
5 an adjournment to allow him to call other psychiatrists who had examined him in the past, to give evidence as to his fitness;
6 an adjournment to call lay witnesses such as a Mr Power, who had made criminal accusations against him in the past;
7 that the Court issue subpoenas to give evidence to such lay witnesses;
8 that the Court issue subpoenas to give evidence to psychiatrists and doctors who had examined him in the past;
9 an adjournment while Mr Chan pursued an application for administrative review of the decision to prosecute him for contempt, given his view that the decision was politically motivated and ought not to have been pursued;
10 an adjournment to allow him to pursue further assistance which he had already sought from Ms Fraser, who had earlier provided him with pro bono assistance on this application and an order directed to Ms Fraser requesting her to give him such assistance;
11 an order granting him leave to appeal judgments given by Bell J on 19 and 22 March 2007;
12 an adjournment to allow the Law Society of NSW to respond to an application made on 18 June 2015 for pro bono legal assistance;
13 procedural directions to the Prothonotary requiring full disclosure of what Dr Allnutt had charged to produce his report and provide his services;
14 procedural directions addressed to Dr Allnutt, requiring him to consider all evidence and submissions in these proceedings;
15 an explanation of directions given on 15 June 2015 that Mr Chan, if he wished to advance a written outline of submissions should file and serve it by 1 July 2015.
The adjournment application was opposed, the Prothonotary submitting that Mr Chan was merely continuing his ongoing pursuit of delay, at a time when he was aware that Dr Allnutt was available to be cross-examined on his report, if he had questions of him. On his past history, there could be no confidence that even if he obtained further pro bono assistance, that he would be prepared to accept advice he was given and that the likelihood was that even then the matter would have to proceed with Mr Chan unrepresented.
After hearing further from Mr Chan I refused to adjourn the hearing, explaining that I had come to the view that his applications could not be entertained, given that in large part they had already been raised and refused on earlier occasions; that some of what had been sought was not in my capacity to order; that it was in the circumstances appropriate to proceed with the fitness hearing, notwithstanding that Mr Chan remained unrepresented; and that to adjourn to permit his belated pursuit of other avenues of pro bono legal assistance was, in reality, a futile exercise. I said that I would give fuller reasons for those conclusions later.
It is apparent that Mr Chan finds these proceedings distressing and difficult, understandably, given their nature and potential consequences, if the Prothonotary establishes the contempt alleged against him.
Mr Chan has not always appeared when the matter was listed, but has made numerous applications, many of which have been refused, some of them because he seeks thereby to avoid the regime imposed upon him by the Vexatious Proceedings Act, or because they raise matters over which I have no jurisdiction, as was the case in relation to his application on 2 July for leave to appeal judgments given in 2007 by Bell J.
Mr Chan believes that the orders made against him under the Vexatious Proceedings Act by Adamson J (see Attorney General v Chan [2011] NSWSC 1315) ought not to have been made and are the result of an ongoing conspiracy being perpetrated against him, as I have explained in earlier decisions given, as is the pursuit of these proceedings. He has frequently complained in these proceedings about the consequences of those orders upon his ordinary rights as a litigant. It may be accepted that they are considerable.
Mr Chan has also repeatedly referred to the nature of the conspiracy in which he believes those who represent the Prothonotary, amongst many others, are involved, as well as his view that I have come under its influence, with the result that many of the applications he has made, I have refused.
Despite Mr Chan's beliefs as to these and other matters he has referred to in support of applications he has made to me and the duty judges he has approached, these proceedings must be heard and determined. On 2 July 2015, they had reached the point where the question of his fitness was listed for hearing. Mr Chan had unquestionably been given a fair opportunity to advance any case which he wished to advance on that question. Had he wished to have Dr Allnutt consider any of his medical records, he had the opportunity to provide them. He had the opportunity to be examined by Dr Allnutt. He had the opportunity himself to obtain a report from another psychiatrist, had he wished to do so.
Earlier in the proceedings Mr Chan claimed that he had sought legal aid for these proceedings, that it was not forthcoming and that he had appealed the decision to refuse him that aid. That the documents he relied on to establish those claims related to these proceedings, was not clear. Nevertheless, given the seriousness of these proceedings, I twice referred him for pro bono legal assistance, the second time after the question of his fitness arose. Both referrals were taken up, but resulted in counsel being given leave to withdraw, in circumstances where Mr Chan was plainly not prepared to accept the assistance he was being offered.
Under s 12 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a fitness hearing such as this is intended to proceed on the basis that a person such as Mr Chan is legally represented. The section envisages that will not always be possible and so gives the Court a discretion to permit the proceedings to proceed, in the absence of such representation. In the circumstances of this case, I was well satisfied that this discretion had to be exercised.
That in 2005 when in proceedings in which Mr Chan was a plaintiff, he accepted pro bono legal assistance from counsel, following orders made by Nicholas J under the then applicable assistance scheme, was not a basis on which it could be concluded on 2 July 2015 that Mr Chan could justly be given the benefit of yet another pro bono referral, or that the fitness hearing should be adjourned again, so that he could pursue the pro bono assistance he described having pursued belatedly from an unidentified lawyer and the Law Society.
In the circumstances, I was satisfied that the fitness hearing had to proceed without Mr Chan being legally represented. Mr Chan's conduct of the proceedings, including on 2 July, revealed that there was a proper basis for the Prothonotary's submission that he was attempting to frustrate the hearing, by whatever means he could think of, from moment to moment. His conduct that day and earlier, was consistent with a course of conduct pursued deliberately, by someone who is a highly intelligent, experienced litigant, intent on disrupting the orderly conduct of these proceedings by whatever means comes to mind.
It was, in those circumstances, necessary to refuse his applications, particularly bearing in mind what had fallen from Mr Chan on 21 November 2014, when he addressed the requirements of s 12 of the Mental Health (Forensic Provisions) Act, which provides:
"12 Conduct of inquiry
(1) At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by an Australian legal practitioner.
(2) An inquiry is not to be conducted in an adversary manner.
(3) The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.
(4) (Repealed)"
Mr Chan complained that the Prothonotary had not complied with these requirements. On 21 November 2014, however, he also indicated that he could not comply with them, submitting;
"DEFENDANT: Your Honour, can I just make my submission clearer to this Court? That is the requirement of s 12 subs (2) of the Mental Health (Forensic Provisions) Act 1990 will never be complied with by the defendant without representation and the defendant will never be able to comply with the requirement, the legislative requirement of this section because to do so would require the defendant to be neutral in the inquiry, and this is something that the defendant will never do, or will never agree to do. The defendant is a defendant, the objective of the defendant is very clear that he's not to be convicted, not to be punished in any way at the end of this prosecution. That is the only objective that matters to the defendant, and to require the defendant to comply with s 12 of subs (2) of the Mental Health (Forensic Provisions) Act 1990 would require the defendants to abandon his objective. The only objective that matters to him in this whole Supreme Court case 2012/350266 which is nonsensical, which is impossible and nonsensical for him to do.
HER HONOUR: Mr Chan, I'm going to --
DEFENDANT: Therefore this inquiry cannot possibly be done according to the law if there's no representation of the defendant."
Mr Chan has conducted himself accordingly. That he would now accept any legal advice he received or depart from this course, could not be accepted, given his continuing conduct. In the result, his applications had to be declined, as inconsistent with what the dictates of justice required in the circumstances.
Despite having outlined earlier objections to Dr Allnutt's report, which suggested that it would be necessary to read the report, before his objections could be determined, Mr Chan opposed me being provided with the report before I dealt with those objections, because he submitted that would render his other objections futile.
When I adjourned for morning tea, so that Mr Chan could prepare to advance his objections, he sought yet another adjournment, he said, so that he could return home, to obtain other documents which he required, which he had not brought to Court with him that day. This was not the first occasion in which Mr Chan made such an application and it was refused.
I refused that adjournment and others later sought, being satisfied that Mr Chan had been given more than a fair opportunity to prepare himself for the fitness hearing. This is amply revealed by the various judgments which I and duty judges have earlier given in the proceedings, and what has transpired on the various occasions this matter has been in the list, when directions were given. Whether Mr Chan availed himself of that opportunity, was a matter for him.
[3]
Disqualification
My refusal of Mr Chan's adjournment applications then led to another application that I disqualify myself for actual bias, evidenced it was claimed, by my refusal of his applications and my conduct of the litigation, which established, he submitted, that I was not impartial and would not give him a fair hearing. I also refused that application, as I had an earlier such application (see Chan (No 8) where I discussed the applicable law).
Mr Chan's conduct of that application and how I had dealt with it, was also relied on to support his application, as was my claimed failure to have allowed him to pursue a sixteenth basis for his further adjournment application. Having attempted to bring his repetitive submissions to an end, by giving him a short further period to conclude, following the Prothonotary's objection that Mr Chan was deliberately pursuing a course by which he sought to ensure that the fitness hearing and the receipt of Dr Allnutt's report was disrupted, Mr Chan sought to give evidence, which I permitted.
I eventually brought that to an end, when following objections, Mr Chan refused to confine himself to giving evidence relevant to his disqualification application, rather than repeating matters already the subject of evidence received in the proceedings and submissions which he had already advanced.
As I discussed in Chan (No 8) (at [50] - [52]), dissatisfaction with rulings on applications which Mr Chan makes, such as those which he made on 2 July, does not evidence actual bias, nor a lack of impartiality. Whenever an application is made which is opposed, one party must succeed and the other fail. That repeated applications are made with the same result, also does not reveal bias. Nor does the fact that one party is not called on to respond to an application made by another, if the party on whom the onus falls, in this case Mr Chan, establishes no basis on which the application can be granted.
What is captured by the record of the proceedings does not properly capture the extent of the delay and difficulty caused by Mr Chan's discourteous, argumentative and disruptive approach to these proceedings. That he is unrepresented in difficult proceedings such as this, of course must be taken into account, as I have endeavoured to do, consistent with the obligation also to ensure justice to the other party, when dealing with applications which he makes. That does not allow Mr Chan to be permitted to pursue any course which occurs to him from moment to moment, particularly without notice, while ignoring the matter at hand or any matter sought to be raised with him, or any question sought to be addressed to him, or any ruling given, or the fact that his application has already been dealt with and refused. That is more especially so when it becomes apparent at times that the course he is pursuing is patently designed to frustrate the orderly hearing of the proceedings. That is revealed by constant interruptions whenever I or the Prothonotary's counsel attempt to speak, even with each other.
During the fitness hearing, I came to the view that the Prothonotary's submission that Mr Chan has deliberately continued to pursue a course by which he was seeking to delay and frustrate the hearing, was well founded. That such conduct is identified and has to be dealt with by a trial judge, who has to balance one party's right to be heard on applications which they wish to advance, with another party's right not to be unfairly subjected to the consequences of such conduct, does not provide a basis on which a conclusion that there is actual bias, can rest.
While that meant that various of the many applications made by Mr Chan on 2 July had to be rejected, it did not follow that what lies between the parties to the proceedings will not be dealt with impartially, on the evidence and submissions which the parties properly advance.
It was for those reasons that the bias application was refused.
Mr Chan later submitted at various points that other steps I had taken further evidenced that actual bias he had complained of. For example, on 3 July, I informed the parties when the hearing resumed that my associate had been approached with advice that Mr Chan had approached Victorian counsel to provide him pro bono legal assistance. I provided the parties with a copy of an email received by my Associate, which I marked MFI 15 for identification.
Mr Chan objected to the Prothonotary having a copy of the email and it was returned. He also complained that by marking the document for identification, I had unlawfully abrogated his legal professional privilege. The submission was baseless. I was merely informing the parties of an approach in relation to the proceedings and marking for identification a copy of the document I had provided Mr Chan.
In the circumstances, requiring Mr Chan to move on with the hearing, despite his persistent protests, was incapable of evidencing actual bias, as were his other complaints.
[4]
Objections to Dr Allnutt's report
On 2 July, Mr Chan identified objections to Dr Allnutt's report, which he accepted was based on documents I had ordered he be provided with. He initially withdrew objections which I indicated would require me to read the report to rule upon them, for example, as to relevance and Dr Allnutt's qualifications. Those objections concluded with another adjournment application, so that Mr Chan could obtain an opinion from another psychiatrist about the opinions Dr Allnutt had reached.
I also declined that application, again taking the view that Mr Chan had been given ample opportunity to lead evidence as to his fitness from another psychiatrist, if he had wished to do so.
I received Dr Allnutt's report, not being satisfied that Mr Chan had established any basis upon which it could be concluded that the report was not admissible. Having received the report, Mr Chan then pressed some of the objections earlier withdrawn, such as to relevance. I also did not uphold those objections.
Mr Chan's objections included that Dr Allnutt had not been instructed with all of the relevant documents, because the orders made were defective and should not have been the basis on which the fitness hearing proceeded; that his opinion had not been independently formed, but merely reflected those of his instructors, who had conspired for the common purpose of manufacturing medical evidence as to his fitness to stand trial and that Dr Allnutt was a part of that conspiracy; that the report contained factual errors; that the report was not relevant; Dr Allnutt's suitability given his qualifications, was questioned, Mr Chan claiming that he needed to be provided with contact details of Dr Allnutt's referees; that the report was not a professional report; that he required information as to what payments had been made to Dr Allnutt; that before it was tendered, he required the opportunity to have the report assessed by another professional in the field; that the determination of his fitness required assessment by three psychiatrists; that documents produced on subpoena should be considered by Dr Allnutt, before his report was received; that it should not be received, because it was prepared without him being examined; that Dr Allnutt had not been able to diagnose him; because the report was written predominantly in the negative sense; that Dr Allnutt's opinions rested on those of the Crown Solicitor's office and were outside his field of expertise; and that his report contained conflicting opinions.
The Prothonotary's position was that the objections pressed largely went to weight rather than admissibility and otherwise raised matters on which Dr Allnutt could be cross-examined and could not lead to the rejection of his report.
It was apparent that Dr Allnutt had been instructed in accordance with the Courts orders; that Mr Chan had been given the opportunity to provide him with further documents to consider, or to be examined by him, if he wished; that Mr Chan's dissatisfaction with those orders and Dr Allnutt's report, was not a proper basis on which the report could be rejected; and that most of the matters which he raised, did not go to the admissibility of the report.
The objections Mr Chan pressed after the report was received could not be upheld, because the documents tendered established not only the instructions Dr Allnutt had been given, but also his qualifications and that the opinions he expressed fell within the provisions of s 79 of the Evidence Act, which provides an exception to the opinion rule in cases where expert opinions rest on an expert's training, study or experience. Mr Chan's objections raised no basis on which Dr Allnutt's qualifications and experience could reasonably be doubted, or on which it could be concluded that his report was not admissible under s 79.
The report and Dr Allnutt's qualifications established that he is a medical expert in the field of psychiatry, who was expressing diagnostic opinions about matters in his field of study, training and experience. The instructions he had been given were disclosed, as was the basis of his opinions and his reasoning process. Admissibility does not require an assessment of the merits of the opinion. That the opinions rested on hearsay material, such as the transcript of the earlier hearings and supported the case which the Prothonotary was advancing, also did not make the report inadmissible.
Dr Allnutt was then called, again with great difficulty. Mr Chan repeatedly objected to Dr Allnutt being called or seeing him, covering his head when the doctor entered the room so that he could not be identified. His agitated behaviour led to Dr Allnutt repeatedly being asked to withdraw. Mr Chan pressed for another adjournment, for reasons which included that Dr Allnutt's report was incomplete and that, if he examined Dr Allnutt himself, that would hurt his case, because then Dr Allnutt would make an impromptu psychiatric assessment of him. That application was also refused.
When Dr Allnutt was finally called, initially Mr Chan refused to cross-examine Dr Allnutt and left. He returned after Dr Allnutt had begun giving his evidence. Then he proposed that Dr Allnutt be sent away, so that he could cross-examine him by telephone, because he was concerned, he said, not to become Dr Allnutt's patient, by virtue of his cross-examination. I refused to adjourn the hearing to pursue this course. Eventually the cross-examination proceeded, with Dr Allnutt keeping his back to Mr Chan.
The cross-examination did not conclude on 2 July. On 3 July the Prothonotary asked Mr Chan to clarify his then attitude to the question of his fitness. Mr Chan's position was that neither he, nor any lawyer who might appear for him in the proceedings, could answer that question. He said that the question of his fitness was a complex one, about which he could not advance any position.
The Prothonotary then applied to have Dr Allnutt's cross-examination proceed by telephone and to be limited as to time. Mr Chan was unable to indicate how long his cross-examination might take. He finally said more than a day. He opposed the telephone cross-examination he had suggested the previous day, because he said that he wanted to put documents to Dr Allnutt. When asked to identify the documents, he was unable to do so, even after an adjournment, despite having said he had already spent days in preparation for the cross-examination.
In the result, given that Dr Allnutt had the previous day indicated that his ability to come to a conclusion as to whether Mr Chan was suffering a mental illness would be enhanced, if he was given access to clinical records and that it was conceivable, notwithstanding Mr Chan's approach to the fitness hearing to that point, where he had not been prepared to make available any of his medical records for assessment, that the documents he wished to show Dr Allnutt might lead to a firmer conclusion, arrangements were then made for Dr Allnutt to return at 2 pm for cross-examination.
In the circumstances, however, and over Mr Chan's objection that I had no power to place any limit upon him, I concluded that this further cross-examination should be limited to one hour. Mr Chan submitted that I had no power to impose any arbitrary time limits on his cross-examination. As I then reminded Mr Chan, I had already dealt with the applicable law in an earlier decision and refused to entertain further questioning or debate on the ruling, which I was satisfied was just in the circumstances, given the matters which Mr Chan had already addressed in his cross-examination (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 6) [2014] NSWSC 153) at [51] - [53]).
Before the morning tea adjournment, I sought to adjourn to allow Mr Chan to prepare himself to complete the cross-examination. He, however, pressed for an opportunity to make further applications, but refused to indicate how many applications he had. He said that the first was yet another adjournment application so that a second psychiatrist could be engaged to assess his fitness.
Again, no notice had been given of any of these applications. I refused to entertain them, directing Mr Chan to provide the Prothonotary with a written list of any applications which he wished to make, over the morning tea adjournment. On resumption Mr Chan did not appear and the matter was adjourned to 2 pm for Dr Allnutt's cross-examination. Later in the morning Mr Chan approached, indicating he would be ready to proceed with his list of applications at 12:45 pm. On resumption shortly before 1pm, Mr Chan had not produced a written list, but said that he had a list on his computer.
At that point I ordered that no further applications from Mr Chan would be entertained without prior written notice of them being given to the Prothonotary; that the matter would be adjourned to 2pm, when Mr Chan would have the opportunity, if he wished to avail himself of it, to cross-examine Dr Allnutt for a further hour; and that I would not entertain any further application from Mr Chan before 3pm, after the conclusion of that cross-examination.
Despite these orders, on resumption Mr Chan wasted considerable time in attempting to seek advice about the consequences of an application for a jury trial, on Dr Allnutt's evidence. Mr Chan eventually cross-examined Dr Allnutt before he was excused, after a little over an hour, despite Mr Chan's objections that he had not completed his cross-examination, which had been to that point been slow, repetitive, irrelevant in parts and in others going over matters already explored with Dr Allnutt the previous day. It had also, however, gone to some new and relevant matters. Notably it had finally been conducted in such a way, that it confirmed, Dr Allnutt said, the conclusion he reached as to Mr Chan's fitness to be tried.
After Dr Allnutt was excused, Mr Chan made a written application to have Dr Allnutt recalled, which I declined, being satisfied that he had been given a fair opportunity to cross-examine Dr Allnutt. Mr Chan then attempted to make further applications of which he had not given any notice, which I also declined to entertain.
Mr Chan then moved into his evidence, tendering the other documents which he wished to rely on, on the question of his fitness. I adjourned by consent to hear final submissions on Monday, 6 July. Later that afternoon, Mr Chan gave written notice that he intended to make yet another adjournment application on Monday morning.
[5]
Further applications
On 6 July, I also refused Mr Chan's next adjournment application, pressed before hearing the submissions advanced for the Prothonotary as to his fitness. I finally adjourned the fitness hearing, however, giving Mr Chan the opportunity he sought to advance written submissions, which he was directed to file by 31 July 2015.
The applications Mr Chan advanced on commencement of the hearing on 6 July included that the fitness hearing be adjourned because he needed further time to prepare his submissions, and that he needed the opportunity to examine the Court file. During the course of the hearing he has been assisted by being provided with copies of documents, including those he has himself tendered and by the Prothonotary providing him with copies of the transcript. Mr Chan said that he needed the adjournment to ensure that he had copies of all of the documents he needed and to consider the transcript. He also sought leave to instruct a psychiatrist to assess his fitness, if he was financially able to do so and that the Prothonotary engage a second psychiatrist to assess him, submitting that the Court would be better informed if he was examined by three experts.
Mr Chan also reiterated that his cross-examination of Dr Allnutt had not concluded, but that Dr Allnutt's competence had been put in question, because of his evidence that he had not read the entirety of the transcript with which he had been briefed. In the result, Mr Chan submitted, more competent, reliable and credible psychiatric assessment was required and that the fitness hearing should not proceed on the basis of Dr Allnutt's evidence, given the arbitrary limitation of the cross-examination to about four hours. He also explained that he had not earlier sought his own psychiatric assessment through no fault of his own, but because he did not accept the procedure by which Dr Allnutt had been engaged by the Court, in circumstances where the final aspects of that engagement had not been adequately disclosed to him. Dr Allnutt's evidence in cross-examination had showed that he had not read all he had been directed to read and that this supported the basis of Mr Chan's reasonable belief that Dr Allnutt would not be an independent witness; that his engagement was suspicious; and that there had not been full disclosure of the financial basis of his engagement.
None of this could be accepted. Dr Allnutt had not been engaged by the Court, but by the Prothonotary and had been briefed on the basis of orders proposed by the Prothonotary, on which Mr Chan had been given an opportunity to be heard. The orders Mr Chan raised did not explain why Mr Chan did not earlier take the opportunity he unarguably had been given to be examined by a psychiatrist he chose. In the circumstances, I refused to adjourn the fitness hearing, in order to embark on the course Mr Chan proposed, not accepting that he had not been given a reasonable opportunity to cross-examine Dr Allnutt, or that determination of the question of his fitness required the consideration of two other psychiatrists.
I also pointed out to Mr Chan, however, that this did not preclude him from seeking further psychiatric assessment, observing that if a written report was forthcoming from a psychiatrist who he appointed, which supported the view that he was not fit to be tried, he was not precluded from making a further written application of which he gave prior notice to the Prothonotary, for his fitness to be further considered.
[6]
Amendments
27 July 2015 - typographical errors in [33] and [55]
21 August 2015 - typographical error - "Dr Allnut" changed to "Dr Allnutt" throughout the judgment
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Decision last updated: 21 August 2015
Parties
Applicant/Plaintiff:
Prothonotary of the Supreme Court of New South Wales