R v Langley [2008] VSCA 81

2 There was evidence that the applicant laboured under severe mental disorders at the time he was alleged to have committed the offence, yet, having regard to the evidence of Dr Douglas, it does not appear that the jury, properly instructed, would have found the applicant not guilty of the offence because of mental impairment. Nevertheless, the trial judge was not entitled to withdraw the issue from consideration by the jury. The provisions of Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 commit the task of determining the existence of each of the matters set out in s 15 to a jury. Accordingly, the verdict of the jury should be set aside.

3 I agree with the disposition proposed by Lasry AJA for the reasons stated.

4 The applicant was presented before the County Court at Melbourne on 12 May 2005 on a presentment alleging one count of armed robbery, said to have occurred on 28 June 2004 at Epping. At the time of the offence, the applicant was an involuntary patient at the Northern Hospital Psychiatric Unit suffering from schizophrenia and an intellectual disability. At about 11:00 pm on 28 June 2004, it was alleged that he walked out of the Northern Hospital and to a nearby 'Hungry Jack's' café. Armed with a steel picket which he located outside, he is alleged to have entered the store as it was closing, approached staff and demanded money. The safe was opened and he was given $705.00. He left the premises and was later arrested by police in possession of that sum. He was interviewed by police and effectively either denied or claimed a lack of memory in relation to the incident. The applicant was remanded in custody at Port Phillip Prison.**

**5 As the applicant's trial was due to commence, the trial judge was informed by counsel that there was a 'question as to whether the accused is fit to stand trial'. She was informed by the prosecutor that it was proposed to conduct a hearing before a jury to determine that issue immediately pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ('the Act').

6 The issue of the fitness of the accused to stand trial arose because consultant psychiatrist, Dr Lester Walton, had examined the applicant on a number of occasions at Port Phillip Prison commencing on 17 September 2004 and provided reports of his assessments to Victoria Legal Aid. Over a series of consultations, Dr Walton concluded that the applicant was unfit to be tried and in his opinion had been since he first saw him in September 2004. When Dr Walton attended the County Court on 12 May 2005, he expressed the view, which was conveyed to the trial judge, that the applicant remained unfit to stand trial as at that date.

7 Having been informed of those matters, her Honour expressed the view that there was a real and substantial question as to the fitness of the accused to stand trial and, pursuant to s 9 of the Act, the matter was very briefly adjourned for investigation.

8 Shortly afterwards, a jury was empanelled to determine whether or not the applicant was fit to stand trial. The only evidence before that jury was the evidence of Dr Lester Walton. In that evidence, he described his attendances and assessment of the applicant. There were no addresses from counsel and after a brief charge from the trial judge, the jury retired. As though to emphasise the haste with which events transpired, the jury returned a verdict that the applicant was not fit to stand trial within seven minutes.

9 Her Honour then ruled that, given the jury verdict and on the evidence she had heard, she was of the view that the applicant was not likely to become fit to stand trial within the next 12 months. Pursuant to s 12(5) of the Act, she therefore ordered that a special hearing proceed. A further jury was empanelled and the special hearing was conducted. At the conclusion of that hearing the jury returned a verdict of guilty. The effect of that verdict is provided for by s 18(4) of the Act:**

(4) If a jury makes a finding under section 17(1)(c)[1],the judge must -

(a) declare that the defendant is liable to supervision under Part 5; or

(b) order the defendant to be released unconditionally.

10 After hearing submissions and reading the reports which had been obtained, the judge ordered that the applicant was liable to a custodial supervision order pursuant to s 26(2)(a)(i) of the Act and that he be remanded in custody in prison pending receipt by the Court of a certificate of available services pursuant to s 47 of the Act. She also ordered that on the day of the receipt by the Court of the certificate under s 47 of the Act, the applicant be committed to the custody of the Victorian Institute of Mental Health. She ordered that pursuant to s 28 of the Act, the nominal term of the supervision order was to be 25 years from 29 June 2004.

11 The applicant seeks leave to appeal both in relation to conviction and sentence. The appeal against conviction, in particular, seeks to impugn each of the processes under the Act which were applied to the applicant.

The Investigation of the Applicant's Fitness to Stand Trial

**12 Under Part 2 of the Act, once it appears to a trial judge that there is a real and substantial question as to the fitness of a defendant to stand trial, the judge must adjourn the trial and proceed with an investigation under that Part of the Act.[2]

13 Grounds 1 to 4 and ground 6 of the applicant's grounds of appeal are in the following terms:**

1. The learned trial Judge erred in empanelling a jury to determine the Applicant's fitness to plead in circumstances where she had not satisfied herself:

(a) that the Applicant's Counsel was unable to be properly instructed;

(b) that the Applicant had been appropriately assessed by a psychiatrist in a clinical setting as to his fitness to plead; the prisoner having been an inmate of a correctional institution whilst on remand and having been assessed in prison;

(c) that the Applicant was able to be stabilized with appropriate treatment and/or medication so that a fair assessment of his capacity to stand trial could be made once compliance with treatment had been achieved, there being no compulsion for treatment in the custodial setting;

(d) that the Crown had a sufficient rationale for not obtaining a separate and independent assessment of the prisoner on the issue of fitness to plead and whether there is any protocol or procedure for obtaining a second or independent assessment on issues of fitness to plead or mental impairment;

(e) that there was a sufficient rationale for the Crown's position that the prisoner was not mentally impaired at the time of the alleged offence being committed whereas the Crown were not challenging the prisoner's unfitness for trial.

1. The learned trial Judge erred in failing to consider whether she should reserve the question of fitness to stand trial to a later date pursuant to s 9(1) of [the Act], so that further consideration and investigation of the Applicant's likely capacity to stand trial in the ensuing 12 months could occur.
2. The learned trial Judge erred in failing to enquire whether the Applicant could be placed at an appropriate place for assessment pursuant to s 10(b) of the Act and in failing to obtain a medical or psychological examination and report under s 10(d)(i) and s 10(d)(ii) of the Act from Forensicare as an adjunct to the material obtained by the Applicant's instructing solicitors.
3. The learned trial Judge erred in failing to consider whether she should exercise any of the powers set out in s 11(b) of the Act prior to impaneling [sic] a jury.

1. The learned trial Judge erred in failing to record information as to the history of any previous attendances by the prisoner for trial on the presentment with which he was charged which may have been relevant to whether an adjournment of any fitness investigation should occur.

**14 In support of these grounds of appeal, the applicant sought to rely on additional evidentiary material from Mr Tom Dalton, Corporate Lawyer of Forensicare, concerning the existence of a protocol between Forensicare and the Office of Public Prosecutions, as well as a report from Dr Douglas Bell, a Forensic Psychiatrist from Forensicare. We indicated that we would rule on the use (if any) that could be made of this material on this application when disposing of the substance of the appeal.

15 I would not permit the applicant to rely on the document provided by Mr Dalton. It deals with what he describes as the 'usual practice' where an issue of fitness to plead arises and that practice is said to be that Forensicare provides a report or assessment for the OPP. Be that as it may, such information is not helpful is dealing with the grounds of appeal concerning asserted error by the trial judge. I also do not consider this material is 'fresh evidence' within the principles in R v Nguyen.[3] As to the report of Dr Douglas Bell, I would similarly be disinclined to permit the applicant rely on it. With respect, it is a differing opinion from that of Dr Walton and commentary on the 'disquiet' that he has in relation to the procedures before the trial judge. Again, however, the material is more relevant to the manner in which the case might have been conducted than the way in which it was. It highlights that other information of assistance to the court may have been available but that is not the question we have to resolve. In view of the disposition I propose in relation to ground 10, the evidence of Dr Bell may assume significance in the future.

16 It can be seen from each of the grounds of appeal and the sub-parts of those grounds that the applicant complains that the trial judge made errors in proceeding to empanel a jury to determine the applicant's fitness to plead in the absence of certain steps which were open to her to take.

17 On behalf of the applicant it was submitted before us that the procedure had progressed 'precipitously' and in essence it was argued that the nature of the legislation meant that because of the risks of prejudice to an accused person flowing from the unusual nature of the special hearing in contrast to a conventional criminal trial, the various steps open under the Act should be pursued with caution. The substance of the applicant's argument was that the Act, by its nature rather than by express provision, imposes on a trial judge a 'special obligation' to, if necessary, take the initiative and conduct certain enquiries before proceeding to displace the conventional criminal trial process with a special hearing.

18 In this case, however, none of the issues raised in grounds 1 to 4 and 6 (above) had been raised by counsel on behalf of the applicant before the trial judge. It was nonetheless submitted that the trial judge had given 'insufficient consideration' to the options open to her at that stage of the proceedings and, because the decision to proceed with the investigation was premature, it had denied the applicant procedural fairness and given rise to a miscarriage of justice.

19 In my opinion, these grounds are resolved by the fact that there is no provision in the Act which requires a trial judge to take any of the particular actions which it was submitted on behalf of the applicant the trial judge in this case should have taken. Further, as has already been stated, none of the potential steps to be taken under the Act which the applicant suggests should have been considered by the trial judge were requested to be taken by counsel representing the applicant. No ground of appeal before us raised any issue about the competence of counsel representing the applicant.

20 Historically, attitudes to a trial judge becoming in any way active in the conduct of proceedings by assuming responsibility for inquiries being made or evidence being called were appropriately conservative. For example, in Ratten v R, Barwick CJ said:[4]**

It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not.

21 Referring to that passage from Ratten v R, Dawson J in Whitehorn v R said:[5]

The means by which a trial judge may ensure that the propriety and fairness of a trial do not, however, extend to the assumption of responsibilities which are properly those of the parties.

22 In that case, of course, what was being discussed was whether or not there were circumstances in which a trial judge might of his own motion call a witness that the prosecutor had declined to call. Having reviewed the authorities, Dawson J went on to say:[6]

A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel. He is not equipped to do so, particularly in making a decision whether a witness should be called.

23 With those principles in mind, I agree generally with the submission on behalf of the Crown that the occasions on which a trial judge is required to intervene when a person is competently represented, must be exceptional. As I have already observed, under this Act none of the steps proposed by the applicant as steps which should have been followed by the trial judge of her own motion are mandatory. However, as a matter of policy in these cases, there is more to the debate than that. The determination of the fitness of a person to stand trial is not itself a trial. It is designated by the Act as an 'investigation'. Section 11 of the Act specifies the procedure on investigation in the following terms:

(1) On an investigation into a defendant's fitness to stand trial -

(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence;

(b) _if of the opinion that it is in the interests of justice to do so, the trial judge may - _

(ii) require the defendant to undergo an examination by a registered medical practitioner or registered psychologist;

(iii) require the results of any such examination to be put before the court.

(2) The Juries Act 2000 applies to an investigation as if the investigation were a criminal trial.

(3) At the commencement of the investigation, the judge must explain to the jury -

(c) that the standard of proof required in relation to the defendant's fitness to stand trial is the balance of probabilities.

(4) If the jury finds that the defendant is unfit to stand trial, the judge must -

(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the defendant is likely to become fit to stand trial within the next 12 months; and

(b) if the judge determines that the defendant is likely to become fit within the next 12 months, specify the period by the end of which the defendant is likely to be fit to stand trial.

(5) For the purposes of subsection (4) the judge may call further evidence on his or her own initiative.

(6) The jury empanelled to decide the question of a defendant's fitness to stand trial must not decide any other matter in relation to the proceedings for the offence. (emphases added)

**24 On a proper interpretation of that section alone the role of a trial judge in this procedure is significantly different and intended to be more investigative than would be the case during a conventional criminal trial. However, these provisions are not mandatory and so although no action was taken under them in this case, I do not consider such lack of action represents appellable error, though I do think it would have been desirable for them to be more carefully considered. With great respect, it is also fair to observe that in the circumstances confronting her Honour she received less than satisfactory assistance from counsel at this stage of the proceedings. In view of the conclusion that I have reached in relation to ground 10 and the disposition I propose, those steps may yet be able to be taken in respect of this applicant. Ultimately, in my opinion these grounds of the application must fail. If the Parliament had wished to ensure that the procedures under the Act were undertaken more cautiously, as the applicant suggests they should be, then it could have legislated accordingly. It has not chosen to do so.

25 The reasoning concerning these grounds also disposes of ground 8 which was that the verdict of the jury that the applicant was unfit to be tried was unsafe and resulted in a miscarriage of justice.

26 Before leaving this ground I express my general agreement with the submissions made on the behalf of the applicant about the policy and procedural issues under the Act. I agree it is desirable that, wherever possible, those accused of serious criminal behaviour be dealt with within the conventional criminal trial process. Consistent with that approach, the Act presumes fitness to stand trial.[7] If a person is found not fit to stand trial and then found to have committed the offence charged at a special hearing, as in this case, an indefinite supervision order is made with a nominal term set. I note in passing that in this case the trial judge imposed a nominal term of 25 years pursuant to s 28 of the Act, which is the maximum penalty for armed robbery.[8] Although the purpose of supervision orders on the one hand and punishment on the other are different, there is a meaningful contrast in this case with the sentence likely to have been imposed after a conventional criminal trial and a verdict of guilty. In my opinion, trial judges confronted with the special problems created by the issues of fitness to be tried and mental impairment should take advantage of the opportunity provided by the legislature to investigate whether the process leading to a special hearing and indefinite supervision order is the only genuine alternative open 'in the interests of justice'.[9]**

The Determination by the Trial Judge that the Applicant Was Unlikely to Become Fit to Plead in the Ensuing 12 Months - Grounds 5 and 9

**27 Pursuant to s 12 of the Act, if a jury finds that a defendant is not fit to stand trial, and the judge determines that the defendant is not likely to become fit within the next 12 months, the Court must proceed to hold a special hearing under Part 3 of the Act.

28 In compliance with s 12, upon the jury's verdict that the applicant was not fit to stand trial the trial judge determined on the evidence of Dr Walton that the applicant was not likely to become fit to stand trial within the next 12 months and therefore ordered a special hearing under Part 3 of the Act.

29 The evidence on which the trial judge relied to come to that conclusion was the following evidence elicited by counsel for the prosecution in cross-examination of Dr Walton:**

What's your view at the moment in terms of the likelihood of him becoming fit to stand trial in the future?

Well, in terms of the 12 months that Her Honour must consider, I think we can safely conclude at this point that he will not recover and become fit in the next year.

**30 Coupled with the detail of the reports Dr Walton had prepared, that was the only evidence on which the trial judge was able to proceed and she presumably felt that she had no reason to reject it. The applicant suggests that in order to determine the issue of whether or not he might have become fit to stand trial within 12 months, certain measures pursuant to s 12(2) of the Act might have been implemented. However, those measures can only be implemented if the trial judge determines that the particular defendant is likely to become fit within the next 12 months. Based on the evidence, the trial judge here had come to a different conclusion and therefore was required to act pursuant to s 12(5) of the Act. It seems to me that, having made that determination, she was left with no choice but to proceed to hold a special hearing under Part 3 of the Act within three months as the section requires.

31 It is submitted that the finding made by her Honour was unsafe and led to a miscarriage of justice, but bearing in mind the state of the evidence, that submission must also be rejected.**

Ground 10 - The Conduct of the Special Hearing - The Alternatives Available

32 Section 15 of the Act concerning special hearings makes plain their purpose:

The purpose of a special hearing is to determine whether, on the evidence available, the defendant -

(b) is not guilty of the offence because of mental impairment; or

(c) committed the offence charged or an offence available as an alternative.

33 Section 17 of the Act prescribes the three findings that are available to the jury at a special hearing:

(1) The following findings are available to the jury at a special hearing -

(b) not guilty of the offence because of mental impairment;

(c) the defendant committed the offence charged or an offence available as an alternative.

(2) To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the defendant committed the offence charged or an offence available as an alternative.

**34 In this case, only two of those three findings were left to the jury constituting the special hearing, being the possible verdict of 'not guilty of the offence charged', and the possible verdict that 'the defendant committed the offence charged'.

35 It is necessary to examine the progress of the trial to understand why the alternatives which were left to the jury excluded the alternative of 'not guilty of the offence because of mental impairment'.

36 The trial judge was informed by counsel representing the applicant at trial that at a special hearing the applicant 'would not be running insanity'. There was no positive or direct evidence before the jury in the special hearing that the applicant was suffering from any mental impairment. The evidence which touched upon his psychiatric condition was the evidence led from Dr Ian Douglas who was a psychiatrist at the Northern Hospital in Epping where the applicant had been an involuntary patient. He described to the jury the fact that the applicant suffered from a psychiatric disorder being schizophrenia and that he also had an intellectual disability. He described the applicant's schizophrenia as well controlled, although not fully controlled, and he said there were no particular prominent mental state abnormalities, they having appeared to have abated. In answer to the question from the prosecutor, Dr Douglas said that in his opinion the applicant was able to distinguish between right and wrong at the time he committed the offence. Save for the possibility that the applicant had been unfit to be interviewed, which was put to Dr Douglas by counsel for the applicant in cross-examination, Dr Douglas' evidence was not the subject of challenge.

37 In dealing with this issue the trial judge appears to have accepted what was put to her by counsel for the applicant and has not understood what I consider is the mandatory nature of Part 3 of the Act. In her charge, her Honour told the jury that there were two alternatives open, being either that the applicant committed the offence or that he is not guilty. She went on:**

So there are two verdicts, two alternatives. One, if you are satisfied beyond reasonable doubt your finding will be that the accused, Peter Steven Langley, committed the offence. If you are not so satisfied your finding will be that he is [not] guilty.[10] Your verdict is in relation to the Crown proving the case as at 28 June 2004.

Just to put it in context. Mr Langley has been found to be unfit to stand his trial, which is in relation to his mental processes at this stage. At the time the allegations is [sic] he committed the armed robbery it is not a defence in this case that he suffered from mental impairment. That is not put to you. The evidence has been that he suffered from a mental condition of schizophrenia and had an intellectual disability, but it is not put as a defence that there is any mental impairment. The procedure is adopted because of his mental processes now, not then.

**38 Mr McArdle, who appeared before us on behalf of the Director of Public Prosecutions, submitted that her Honour was unable to leave a verdict of not guilty by reason of mental impairment because there was no evidence of mental impairment. On the other hand, the applicant contends that a finding of not guilty because of mental impairment should also have been left for the jury's consideration. I agree with that submission, primarily because s 17 of the Act stipulates that such a finding is available. Clearly, the issue of whether or not the applicant was suffering from a mental impairment is a question of fact for the jury to determine. If, in a given situation, there is no evidence of mental impairment at the time the offence was committed, a trial judge would direct a jury that although a verdict of not guilty by reason of mental impairment was one of the verdicts available to them, the evidence in the particular case would not support such a verdict. The jury would therefore not return a finding under s 17(1)(b) of the Act. In this case, had the jury been told that such a finding was available to them and been given appropriate legal instructions they might well have considered not guilty by reason of mental impairment as a verdict that was appropriate.

39 I consider that those sections of the Act require a jury empanelled in such a process to consider each of the three alternatives and to determine which of them applies on the evidence available. The use of the word 'or' after each option identifies the reality that the jury can only deliver one verdict and must therefore make a choice, but it does not mean that a selection only of the three choices may be left for their consideration. Further, and for similar reasons, I do not consider that because counsel for a defendant in such a process determines, as here, that he or she does not wish the jury to consider a finding of mental impairment under s 17(1)(b) of the Act means that it can be withdrawn from the jury's consideration. Further, whether or not in the opinion of the trial judge there is evidence on which such a verdict might be based, in the unique circumstances which apply in special hearings, is not a reason to withdraw that alternative from the jury's consideration. All three choices must be left and it is the jury that must decide which of them applies (according to the appropriate standard of proof) on the evidence they have heard.

40 It follows that in my opinion the result of the special hearing must be quashed and the verdict set aside since the hearing has not been conducted in accordance with the Act. As the applicant submits, he was deprived of a chance of acquittal, albeit an acquittal on the grounds of mental impairment.

41 I would order that the matter be remitted to the County Court for rehearing. In my opinion, in fairness to the applicant and consistent with the policy to which I referred, consideration should be given to commencing the process again from the issue of whether the applicant is fit to be tried. He was found unfit to be tried in May 2005 and has been under medical supervision since that date. Given the passage of three years it may well be appropriate to have his fitness to be tried considered afresh. In the additional evidentiary material sought to be placed before us in support of grounds 1 to 4 and ground 6 (to which I have earlier referred), it is suggested in a hearsay form that the applicant is presently fit to be tried. I draw no conclusion on that issue except that the possibility that he is presently fit to be tried underlines the importance of a thorough examination of the issue.

42 Pursuant to s 28A(3)(c), I would quash the supervision order made by the County Court on 26 August 2005 and remit the matter to that Court for rehearing. Assuming the receipt of a certificate of available services under s 47 of the Act, pursuant to s 28A(5)(b) I would remand the defendant in custody in an appropriate place pending the rehearing.

43 Given my conclusion on this ground, it is not necessary to consider the remaining grounds or the application for leave to appeal against sentence.

1. [1] That is that the defendant committed the offence charged.

[3] [1998] 4 VR 394 , 400ff ( Kenny JA).

[4] [1974] HCA 35; (1974) 131 CLR 510, 517.

[5] [1983] HCA 42; (1983) 152 CLR 657, 675.

[8] Crimes Act 1958 (Vic) s 75A(2).

[10] I have assumed, I am sure correctly, that what appears is a transcription error and not what the learned trial judge actually said.