R v N C T [2009] VSCA 240

1 Following a trial before the County Court at Melbourne, on 8 April 2008 the applicant was convicted of nine counts of indecent act with a child under 16 (Counts 3, 4, 5, 6, 12, 13, 14, 16 and 17); four counts of incest (Counts 7, 8, 9 and 15); and two counts of attempted incest (Counts 10 and 11) and, after a plea in mitigation of penalty, on 1 May 2008 he was sentenced thereon to a total effective sentence of eight years and 10 months' imprisonment with a non-parole period of six years and 10 months. He now seeks leave to appeal against conviction.

Grounds 1, 2, 4 and 6 - Whether finding of fitness to stand trial appellable

2 Grounds 1, 2, 4 and 6 are all directed to impugning the validity of a finding, made before trial under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, that the applicant was fit to stand trial.

3 Before turning to the detail of that, however, it is necessary to dispose of a jurisdictional point raised by the Crown. Senior counsel for the Crown contended that a finding that a person is not fit to be tried is not a conviction for the purpose of s 567 of the Crimes Act 1958 or otherwise justiciable by this court under Part VI of the Act. He submitted that the express provision in s 570C for appeal against a finding that a person is unfit to stand trial, and the absence of a comparable express right of appeal from a finding that a person is fit to be tried, is a strong indication that Parliament intended that there should be no appeal against a finding of fit to be tried.[1] He accepted that there may be cases in which a finding of fitness is the result of error or is otherwise unreasonable and that, in such cases, persons against whom the finding is made would be aggrieved. But he contended that it should not be thought surprising that Parliament chose not to provide for an appeal in cases of that kind. In counsel's submission, a finding of fitness to stand trial cannot of itself harm the person against whom it is made - only a conviction is capable of having that effect, he said - and, he suggested that, unless the conviction is shown to be affected by error or is otherwise unreasonable, there is no unfairness and there should be no appeal.

4 I reject the argument. At common law it was long ago established that an accused may not be tried for a crime unless he or she is mentally competent to defend himself or herself and able to understand the proceeding and the nature of the evidence to be led.[2] Consequently, at common law, whenever a real question arose as to an accused's fitness to stand trial, it was incumbent on a trial judge to empanel a jury to determine whether the accused was fit to stand trial.[3]

5 In this state, the procedure was previously provided for in s 393 of the Crimes Act 1958, which was based on the language of s 2 of the Criminal Lunatics Act 1800 (UK).[4] In Kesavarajah v The Queen,[5] the High Court held that '[o]nce a real question as to incapacity [was] raised, the judge [had to] follow the procedure laid down in the section'[6] and, if the judge failed to follow the procedure, and the person was convicted, the conviction would be quashed and a new trial ordered.[7]

6 In 1976, the Crimes Act 1958 was amended by the insertion, inter alia, of ss 570A, 570B and 570C[8] and, as originally enacted, those sections provided for rights of appeal for persons found not guilty on the ground of insanity (s 570A and B) and for persons found unfit to stand trial (s 570C). It was explained in the second reading speech which accompanied the introduction of the new sections that the purpose of including them in the Act was to ensure that:

a person who has been found not guilty on the ground of insanity, or that he is under a disability rendering him unfit to be tried, shall have a right of appeal to the Full Court similar to that possessed by a convicted person, and subject to the same limits.[9]

7 Evidently, it was not considered appropriate to provide for a specific right of appeal against a finding of fitness to plead. Presumably, however, that was because it was considered that a person wrongly found fit to plead was already sufficiently protected by his or her ability to appeal against conviction under Part VI of the Crimes Act 1958. There was certainly no suggestion of abolishing or otherwise curtailing that right of appeal. To the contrary, as was also explained in the second reading speech:

The final clause of the Bill deals with appeals in relation to insanity verdicts. At present Part VI of the Crimes Act 1958 confers rights of appeal on persons convicted in the Supreme Court or County Court of an indictable offence. However, persons who are found not guilty on the ground of insanity are not convicted and, therefore, have no right of appeal. This could result in serious injustice. For example, the accused may have put forward at his trial a defence other than insanity.[10]

8 Unsurprisingly, therefore, in R v Khallouf[11] and Kesavarajah v The Queen,[12] which were both decided after the enactment of ss 570A, B and C, it was held that a conviction consequent upon an erroneous determination of fitness to stand trial remained susceptible to review by way of appeal against conviction under Part VI of the Crimes Act 1958.

9 In 1997 the common law tests of fitness to stand trial and the procedure provided for in s 393 of the Crimes Act 1958 were replaced by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. At that time, ss 570A, B and C of the Crimes Act 1958 were amended accordingly. But again there was nothing to suggest that Parliament intended to abrogate or otherwise diminish the ability of a person found fit to stand trial to appeal against conviction on the ground that the finding of fitness was erroneous or irregular.

10 In the result, I do not think that there should be any doubt that a person convicted consequent upon an erroneous or irrational finding of fitness to stand trial may appeal against conviction, under Part VI of the Crimes Act 1958, on the ground that he or she should not have been so found fit to stand trial and, if the appeal is successful, that the conviction is liable to be quashed as a miscarriage of justice or a nullity.[13]

11 Sometimes, a conviction the result of an erroneous determination of fitness to stand trial is described as a miscarriage of justice, and sometimes it is described as a nullity. The better view, however, is that it is a nullity. As Gaudron J explained in Eastman:

The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. Certainly, that is the position where the issue of fitness to plead is raised before or during a trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, 'no proper trial has taken place [and the] trial is a nullity'. To put the matter another way, there is a fundamental failure in the trial process.[14]

12 As will be seen, that is not a matter of importance in this case. But, more generally, the significance of the distinction is that it implies that the proviso to s 568 of the Crimes Act 1958 cannot be applied to save a conviction consequent upon an erroneous determination of fitness to plead. As Gaudron J also explained in Eastman:

The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum, 'the trial [is] a nullity', the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law. That is the basis upon which this Court proceeded in Kesavarajah v The Queen where the question of fitness to plead should have been but was not submitted to the jury for determination.[15]

Ground 1 - Deciding fitness to plead without reference to expert evidence

13 I turn to the first ground of appeal, which is concerned with the judge's directions to the jury as to the use which were they were entitled to make of expert evidence given in the course of the investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Those directions were as follows:

As you are well aware, the question in this case is whether the accused is unfit. You are the only people in this court who can make that decision as you are the only judges of the facts. It is not up to me, it is not up to anyone else in this court. Nor, I might add, is it up to the expert witnesses, and I will come to that in a moment.

As judges, however, you are bound to decide the case upon the evidence which you have heard here in the court and on nothing else...

You consider all of the evidence in the case and give each part of it the importance which you, as judges think it should be given. That is, you accept what you believe is true and should be accepted, and reject what you disbelieve. You may accept parts of the same witness' evidence, yet reject other parts. It is all a matter for you. It may be that you, in your discussions, accept different parts of the evidence from other jurors. That does not matter. It is again a matter for you individually. But in the end it is in accordance with the weight you give to such evidence as you do accept that as a group you will determine what in your judgment are the true facts.

The general rule is that witnesses who come to court may only give evidence about the facts and not express their opinions. They can only talk about what they see or hear or observe in some other way. But an exception to this rule is that scientific or medical witnesses are permitted to give evidence of their opinions upon relevant matters within their expertise.

However, it is also the law that you, the jury, are not bound to accept such evidence. And that is what I meant before when I said it is not up to the experts to decide this case. Obviously we are greatly assisted by them, but it is ultimately a matter for you.

As the judges of the facts you are obliged to consider, to assess, to accept or reject the opinion evidence as you see fit. So it is for you to give such weight to the opinions of the expert witnesses as you think should be given, having regard to the qualifications of the witness, the partiality or otherwise of the witness, and the extent to which the opinion accords with such surrounding circumstances as you otherwise find, and of course always with your common sense.

Where expert witnesses give conflicting opinions it is for you to determine what weight is to be given to each of the conflicting opinions and to decide whether you should accept one and reject the other, or accept parts of one and parts of the other, or reject both as unreliable.

In this instance there is no dispute that each of the witnesses [was] eminently qualified in their own fields. There was a range of experience, perhaps, between Dr Welbourne, who had been recently qualified but had worked in the area, up till those qualifications, for some time. Dr Sullivan, who had worked for a number of years, much larger number of years in the area. And to the other end of the spectrum, with the psychologists who had worked for some decades in their particular field. But there was no dispute about the level of qualification, it was just a difference in experience.

And as you have heard, there was perhaps very little difference in their ultimate opinions, falling just one side or the other of the line as to whether the accused was fit or unfit in their opinions. And I will return to their evidence in a moment.

14 Counsel for the applicant contended that the effect of the directions was misplaced. He accepted that they were of a kind which is common in most cases involving expert evidence. But he submitted that, in this case, there was no factual substratum against which the jury could test and accept or reject the expert evidence;[16] and, therefore, no sufficient factual basis to determine the question of fitness otherwise than upon the basis of the expert evidence. It followed, in counsel's submission, that the jury should not have been directed as they were.

15 I do not accept that submission. To begin with, I consider that there was a factual basis against which the expert evidence was to be assessed; because, as the judge correctly instructed the jury:

The starting point is that every person charged with a crime is presumed fit to stand his or her trial. If, however, on such evidence as you accept in this case, the scales are tipped even slightly in favour of the accused being unfit to be tried, then you would be satisfied to the required standard. That is, that it was more likely than not, and you bring in a verdict of unfit to be tried.

16 Consequently, as the judge also told the jury, it was for them to determine whether the expert evidence persuaded them sufficiently to rebut the presumption of fitness and persuade them on the balance that the applicant was unfit.

17 Secondly, as the judge explained to the jury, it was for them in undertaking that task to give such weight to each expert's opinion as they thought it should be given, having regard to the qualifications of the witness, the partiality or otherwise of the witness, and the extent to which the opinion of the witness accorded with such of the surrounding circumstances as the jury found proved. The surrounding circumstances in this case were the symptoms and reactions of the applicant which each expert said they had observed or, to put it another way, the facts on which opinion was said to be based. There was detailed evidence of the way in which symptoms had changed and developed over time and a range of questions asked of the experts as to whether that was indicative of the applicant feigning his condition.

18 Thirdly, inasmuch as the jury's task came down in the end to choosing between, on the one hand, the opinions of the two experts called by the applicant, a clinical neuropsychologist, Dr Carol Burton, and a consulting clinical and forensic psychologist, Mr Jeffrey Cummins and, on the other hand, the contrary opinions of the experts called by the Crown, the Deputy Clinical Director of Forensicare, Dr Danny Sullivan, and a staff consultant forensic psychiatrist from the Melbourne Assessment Prison, Dr Alexandra Welbourne, the judge was right to direct the jury that it was for them to determine what weight was to be given to each of the conflicting opinions, and to decide whether they 'should accept one and reject the other, or accept parts of one and parts of the other...'.

19 It is true that, where expert evidence of mental defect or disability is all the one way, it may be inappropriate and sometimes erroneous to direct a jury to the effect that they are 'free to make up their own mind' and that 'the expert evidence is there to assist you, you are not bound to adopt it'.[17] As Smithers J said in Taylor v R:[18]

Where the fact in issue was the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reason. But if the jury are under the impression that on the relevant issue they must look at the 'facts' given in evidence other than by the experts as the source or primary source of proof of insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law. And it appears to me that there was great danger that the impression of the jury would have been that referred to above. If so, that would explain the verdict which it is reasonable to think was quite unexpected.[19]

20 It is also true that, where there is unanimous expert opinion, evidence of mental disability which is at odds with the conclusion to which a jury might come according to a lay commonsensical assessment of the subject's conduct and motivation, the jury may need to be warned about the danger of discounting the expert evidence in favour of lay assessments.[20] But as Eames JA explained in R v Gemmill,[21] that is not so where the expert evidence is not all the one way. As his Honour said:

Common sense retains its place in deciding disputed questions of fact on issues of mental impairment, just as it does in other areas where scientific or technical evidence is being relied on in a trial, and where the factual bases upon which the opinions rest are matters which the jury can legitimately evaluate for themselves. In Taylor v R Connor and Franki JJ held:[22]

As we have pointed out, the learned trial judge told the jury in his summing that '... the expert evidence is there to assist you, you are not bound to adopt it'. The authorities make it clear that the jury is entitled to examine the nature and quality of the medical evidence and should do so in a broad and commonsense way. It may, for example, examine the nature of the killing and the conduct of the accused and his history, but the jury's verdict must be founded on the evidence.

21 As in Gemmill so too here, in my view, there was nothing which required the judge to give special directions of the kind considered in cases like Mizzi, Weise, Matusevich or Thompson.[23] I am unable to discern anything in the judge's directions which might have led the jury to conclude that they were free to decide the issue without reference to the experts' opinions. The whole tenor of her Honour's instructions was that the jury should pay close attention to each expert's opinion in order to decide by comparison between them and reference to the facts on which they were based who if any was to be preferred. As has been seen, her Honour specifically directed the jury that they were 'obliged to consider, to assess, to accept or reject such evidence including opinion evidence, as [they saw] fit'.

Ground 2 - Directions on fitness to stand trial

22 Under Ground 2, counsel for the applicant contended that the judge had erred by directing the jury, in effect, that it was incumbent on the applicant to establish that he was unable to meet all seven of the criteria prescribed by s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, as opposed to just one of the criteria.

23 I do not think that there is anything in that point either. At the outset of the inquiry, the judge gave the jury a document in which were set out the criteria prescribed by s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and directed them orally as follows:

I said to you at the outset, there are two things that you need to be satisfied about on the balance of probabilities before you could find the accused unfit. The first is that he is currently unable to meet all of the minimum standards, those seven minimum standards that you have on your hand-out, or unlikely to be able to meet them for the whole of the trial...

24 By itself, that direction could be taken to mean that the jury had to be satisfied that the applicant met all seven criteria. But the written document to which the judge referred made clear that each criterion was an alternative. And thereafter the judge reiterated the point several times in her oral directions, as follows:

So the starting point is that every person charged with a criminal offence is presumed fit to stand his or her trial. If, however, on such evidence as you accept in this case, the scales are tipped even slightly in favour of the accused being unfit, then you would be satisfied to the required standard. Even slightly in favour of him being unfit would be more likely than not. If, however, the scales were evenly balanced, then you would not be satisfied that it was more likely than not and you would bring in a verdict of fit to be tried, and it follows that if the scales were tipped in favour of the accused being fit to be tried, then again you would bring in that verdict. That is a matter for you on the evidence that you have heard.

I said to you at the outset, there are two things that you need to be satisfied about on the balance of probabilities before you could find the accused unfit. The first is that he is currently unable to meet all of the minimum standards, those seven minimum standards that you have on your hand-out, or unlikely to be able to meet them for the whole of the trial that would follow...

...

Just going to the first element or the first part that you must be satisfied about, that is those seven standards; you have had them well and truly rehearsed and so I am not going to read them all again, but I should just say to you that, as a group, as a jury, you do not all have to be agreed as to those minimum standards. You only have to be satisfied as a group that he is unable to meet at least one of those standards, and that would be sufficient for him to be unfit if the second element is made out. So you might have a difference of opinion about those matters, but so long as you are as a whole, as a jury, satisfied that he is unable to meet at least one of those standards, then that first element would be made out.[24]

25 To similar effect, when later summarising counsels' final addresses, the judge said this:

So just dealing with this first element as to the standards, [the prosecutor] has asserted that the accused is capable of meeting all those standards and is fit in that respect. It was submitted that despite some difficulties, a trial can be held with the accused meaningfully participating in it. [The prosecutor] submitted that [the applicant] is not incapable because of low level of intellectual functioning and his level of response to the allegations, the evidence is, it was submitted, has improved with the repetition of the process, and it was put that if you do find he is unable to meet one or more of those standards, that you should carefully consider whether...[25]

...

[Defence counsel] asserted that [the applicant] is not capable of meeting all of these standards, and he relied on the evidence from Dr Burton and Mr Cummins that currently they are both of the opinion that the accused fails to meet the standard on at least three criteria, that is, they both agree on at least three criteria, being three, six and seven...[26]

26 Last, immediately before sending the jury out to consider their verdict, the judge said this to them:

Members of the jury, that brings me almost to the end of these matters, but I should just add this. You should only have regard to the listed criteria there, those standards in deciding this question of unfitness. You should not try and second guess what arrangements...

27 Given the way in which the Inquiry began, in light of the evidence which was directed to the applicant being incapable of meeting only some of the criteria, and bearing in mind counsels' addresses (which were similarly focused) and the directions which I have earlier set out, I do not consider that the jury could have been in any doubt at all that satisfaction of just one criterion was sufficient. If, however, they had been in any doubt (which I do not accept), they would surely have looked at the written document, which left no doubt; and I am confirmed in that view by the absence of exception.

28 At trial, the Crown relied on evidence of uncharged acts as support for the complainant's evidence of the charged offences. It was given in part by the complainant's brothers and in part by the complainant in her VATE tape. The complainant's brothers spoke of seeing the applicant on top of the complainant in bed and one of them spoke of the applicant at some stage cutting out pictures of the bodies of naked women and pasting photographs of the applicant's head on top of the bodies, so as in effect to make the pictures appear to be of the applicant posed in the nude. The complainant's evidence of uncharged acts was to the effect that the applicant had been sexually molesting her for years, back to the time when she was a very young child.

29 At the time of the trial it was not considered necessary for a judge to direct a jury that they could not rely on evidence of uncharged acts tendered as relationship evidence without first being satisfied beyond reasonable doubt of the truth of that evidence. After the trial, however, the High Court gave judgment in HML v The Queen[27] and this court later held in R v Sadler[28] that, because of what the majority said in HML,[29] a trial judge should ordinarily direct a jury that they are not to conclude from evidence of uncharged sexual acts that the accused had a sexual interest in a complainant unless the jury are satisfied beyond reasonable doubt of the existence of the uncharged sexual acts.[30]

30 Under Ground 3, counsel for the applicant argued that the judge in this case erred by failing to direct in accordance with Sadler that the jury could not infer from the evidence of uncharged acts that the applicant had a sexual interest in the complainant unless the jury were satisfied beyond reasonable doubt of those uncharged acts.

31 I reject that submission. Although the trial took place before Sadler, and the judge could hardly have been criticised if she had not given the sort of directions which were said in Sadler to be requisite, it appears that her Honour in effect anticipated what needed to be done.

32 It is convenient to deal first with the brothers' evidence of having seen the applicant on top of the complainant in bed, about which her Honour gave the following directions:

If you do accept the evidence of one or either of the brothers, that is if you find it truthful and accurate, of what either or both brothers say they saw and that is whether it is the observations through the crack in the door in the bed [room] or the observations of the older brother about the cutting off of the heads in photos, you may use it in the way that the prosecution submits that you should, that is, as evidence to support [the complainant's] evidence generally that her father was having an improper sexual relationship with her and therefore providing support for her particular allegations the subject of the counts.

You were correctly told by [defence counsel] that you cannot use those pieces of evidence in direct support of the counts on the presentment. As I said to you, [the complainant] is the only one who gives evidence directly supporting the counts. But if you accept that evidence [scil the brothers' evidence] it is for you to determine whether you consider that it does or does not support or confirm [the complainant's] evidence by tending to show first that the crime in each instance has been committed, and secondly that the accused was the person who committed it.

...

In determining whether the inference sought by the prosecution can be drawn remember my direction earlier as to the drawing of inferences. That before you could draw the inference that the accused had created those photographs and before you could draw the inference that he did so because of having an improper sexual relationship or interest in his daughter, you must be satisfied beyond reasonable doubt of any facts necessary for the drawing of an inference and satisfied beyond reasonable doubt that it is the only inference open on those facts before using it to reason towards guilty of the accused.

... If you are not satisfied beyond reasonable doubt that the evidence of either of the brothers or the documents supports [the complainant's] evidence then I remind you that you may convict the accused on her evidence alone despite the lack of support, if after giving her evidence close and careful scrutiny you are satisfied beyond reasonable doubt that the evidence is true and may in this case be safely relied upon to establish the elements of all of the offences which the prosecution must prove beyond reasonable doubt.

...

I want to return briefly to the evidence, which is relied upon as the supporting evidence, that is the brothers' observations and the photographic and written material. If you do accept any of that evidence, you may find that it demonstrates that the accused had an improper sexual passion for his daughter, [the complainant].

If you find this to be the case, you may infer from that fact that it is likely that the accused acted on his passion for [the complainant} by doing things alleged in the presentment, making it more probable that he committed the offences charged. You will remember what I said about drawing inferences and the test which you have in writing before you.[31]

33 Her Honour had earlier given the jury detailed directions as the conditions to be satisfied before drawing an inference adverse to the applicant, including the following directions (which her Honour delivered both orally and in writing):

In a criminal trial, of course, it is much more important how you go about drawing inferences and you must be very careful about that. I will give you a particular direction and as it is somewhat of a mouthful, I will provide you with this in writing so that you can follow it as I read it to you. This is a document headed 'Inferences'.

Reading from the document, 'You may not draw an inference as to the existence of any element of the crime charged or of the guilt of the accused unless you are satisfied beyond reasonable doubt of any facts necessary to make or draw the inference and that the inference is the only reasonable inference which could be made upon those facts. If there were another inference open on those facts, an inference consistent with innocence, you would necessarily have a reasonable doubt about the guilty inference and must not draw it.'[32]

34 In other words, before the jury could draw the inference that the accused was on top of the complainant in bed, or created the nude photographs of the complainant, or that he had done either such thing because of an improper sexual relationship with or interest in his daughter, the jury had to be satisfied beyond reasonable doubt of the fact that he had been on top of the complainant in bed, or had created the nude photographs of her, and satisfied beyond reasonable doubt that it was the only inference open on those facts.

35 Thus, in effect, it appears that the judge satisfied the requirement in Sadler to direct the jury that they were not to reason from the creation of the nude photographs, or the fact of the applicant having been on the complainant in bed, that the complainant had a sexual interest in the complainant, unless satisfied beyond reasonable doubt that the applicant created the photographs, and did so because he had a sexual interest in the complainant, and that the applicant was on the complainant in bed, and was so because he had sexual interest in the complainant.

36 Turning then to the complainant's evidence of uncharged acts in her VATE tape, the position is even clearer. The judge expressly directed the jury that they could not convict the applicant of the charged offences unless, after scrutinising the complainant's evidence closely, they were satisfied beyond reasonable doubt that the complainant's evidence was true. It may be assumed, therefore, that the jury would not have used the complainant's evidence of uncharged acts as an important step in their process of reasoning unless they were satisfied beyond reasonable doubt of the truth of her evidence concerning those uncharged acts.

37 Counsel for the applicant submitted that it was possible to conceive of the jury treating the judge's directions as limited to the charged acts and so proceeding on the basis that it was permissible to treat the uncharged acts (whether or not proved beyond reasonable doubt) as evidence of improper sexual interest supporting a conclusion of guilt beyond reasonable doubt of the charged acts.

38 I reject that submission. It amounts to saying that, although the jury may not have been satisfied beyond reasonable doubt of the truth of the complainant's evidence concerning the charged acts, they might still have used her evidence of the uncharged acts as something supporting the credibility of her evidence concerning the charged acts, and thus as assisting them to be satisfied of the charged acts beyond reasonable doubt. In this context, such a complex conception ill-accords with reality. The jury were told that the applicable standard of proof in criminal proceedings was proof beyond reasonable doubt. They were further directed that it was not open to draw an inference adverse to the applicant unless satisfied beyond reasonable doubt of the facts upon which it was based and that there was no other hypothesis consistent with innocence reasonably open on those facts. Assuming, as I do, that the jury followed those directions, there is no logical basis to suppose that they would have convicted the applicant of the charged acts without being satisfied beyond reasonable doubt of the truth of the complainant's evidence concerning the charged acts.

40 Under the headings of Grounds 4 and 5, it was argued that the verdict of fit to stand trial was unreasonable or unsafe and unsatisfactory, and thus that the verdicts of guilty of the counts on which the applicant was convicted were unsafe and unsatisfactory. Counsel for the applicant contended that, because Dr Burton's and Mr Cummins' opinions (that the applicant was not fit to stand trial) were more up-to-date than the contrary opinions of Dr Sullivan and Dr Welbourne, it was not open to the jury to be satisfied on the balance of probabilities that the applicant was fit to stand trial.

42 Dr Burton was a neuropsychologist who assessed the applicant, some four months before the trial, on 10 October 2007. She gave evidence in chief that she had carried out a range of neuropsychological tests, limited in part because of the need to work with the aid of an interpreter. She said that she found it difficult to say how the applicant performed but, in her view, he had demonstrated very poor thinking and problem-solving capacities, albeit that he had some practical manipulative skills within the low to average range. As assessed, his full-scale IQ was found to be 71, which Dr Burton placed within the lower reaches of the borderline range, and his verbal intellectual skills were very poor, reflecting in a verbal scale IQ of 68, which Dr Burton placed within the mildly disabled range. His non-verbal intellectual abilities were stronger, with a performance scale IQ of 79, which Dr Burton placed within the borderline range, and Dr Burton regarded that as lower than expected. His memory function, however, was found to be quite good, albeit with significant problems with attention and concentration.

43 Dr Burton considered that the applicant's major area of weakness was poor abstract and conceptual thinking. In her opinion, the applicant's very poor conceptual skills, and inability to think things through in a logical manner, together with impoverished planning, organisation and judgment, and reduced working memory, were likely to explain why he could not focus on questions or issues that needed to be discussed.

44 Dr Burton concluded that the applicant would be able to understand the nature of the charges, and to enter a plea and to follow the course of the trial. But she doubted that he would be able to challenge jurors, or be able to understand the substantial effect of any of the evidence or give instructions.

45 In cross-examination, however, Dr Burton agreed that, given the bulk of the evidence was the VATE tape, there was no reason the applicant could not follow it and that, in terms of giving instructions, he had a very clear or very good understanding of dates and numbers.

46 Mr Cummins was a consulting clinical and forensic psychologist who had first assessed the applicant on 29 June 2007. At that time he found the applicant difficult to interview because he often refused to answer questions or answered them in a tangential manner and sometimes gave answers to questions which had not been asked of him. It was Mr Cummins' view throughout the interview that the applicant's answers possessed a distinct paranoid flavour and that the applicant presented as very agitated, albeit that he spoke in a slow and deliberate manner.

47 Mr Cummins formed the opinion that the applicant was not psychotic or schizophrenic, did not have residual brain damage and did not have an intellectual disability or personality disorder. The applicant was, however, selective as to the questions which he answered, and Mr Cummins could not see an immediate explanation as to why the applicant may have had difficulty answering some questions and not others. Mr Cummins recommended that the applicant be neuropsychologically examined but was left with the distinct impression that there was a degree of avoidance in terms of addressing issues pertaining to the charges and associated legal proceeding.

48 Mr Cummins said that as at 26 June 2007, he was not satisfied that the applicant would understand the nature of the charges or his right to challenge or his ability to follow the course of trial and the evidence in the trial. Nor was he satisfied that the applicant would be able to give reliable and consistent instructions to counsel. But on balance, Mr Cummins was of opinion that the applicant would most probably understand the nature of the trial.

49 Mr Cummins conjectured that the applicant had developed a post-traumatic stress disorder related to his arrest and the laying of charges against him and the consequent removal of his children from his care, and Mr Cummins said that he observed some symptoms of what he described as an 'encapsulated delusional disorder' with respect to issues which touched upon the charges and the associated criminal proceedings. On that basis, Mr Cummins concluded that the applicant was not fit to stand trial.

50 Mr Cummins said that he next saw the applicant at his rooms on 12 October 2007. During that interview, the applicant was all over the place to the point that at times the interpreter could not make sense of what was being said. At one point, the applicant stated that all charges had been dropped and that he had been told by his church that he was invited to court to listen and that he did not need a lawyer. At another point, when Mr Cummins asked the applicant whether he was ashamed of being charged with offences against his daughter, the applicant became agitated and said that the police had wrongly charged him and had put some of his friends in the police station, attacked them and they died.

51 Mr Cummins concluded on that occasion that the applicant did not present as having a generalised delusional disorder or psychotic illness. Rather, he was having great difficulty coming to terms with the allegations and the possible consequences of being found guilty. In Mr Cummins' view, it was possible that the applicant was suffering from 'an encapsulated delusional disorder relating solely to the alleged offending and his separation from his children'. But on balance, as at 12 October 2007, Mr Cummins considered that the applicant was not suffering from any significant mental impairment and was fit on mental health grounds to stand trial.

52 Mr Cummins next turned his attention to the matter on 23 October 2007, when he received a copy of Dr Burton's report of her assessment of 10 October 2007. He noted that Dr Burton had not specifically considered issues of whether the applicant was malingering or the IQ test results reflected some conscious or unconscious attempt by the applicant to understate his intellectual capacity. As at 23 October 2007 Mr Cummins remained of the view that the applicant was fit to stand trial.

53 Mr Cummins next had a brief consultation with the applicant at court on 4 March 2008, after the applicant began to act erratically during the course of his arraignment, and unexpectedly entered a plea of guilty to several of the counts. Mr Cummins said that at that time the applicant appeared obsessed with the notion that his children had been taken from him by the government and he spoke for the first time of a 'conspiracy' operating for some three years to take his children away from him. Mr Cummins said that the applicant spoke in a systematic and paranoid manner, which led him to conclude that the applicant was very probably suffering from an encapsulated delusional disorder although not from paranoid schizophrenia.

54 Mr Cummins next saw the applicant at court on 14 March 2008, by which time the applicant had shaved off his hair and was speaking of becoming a monk. The applicant also told him that he had been speaking to Jesus and that Jesus had been speaking to him and telling him what to do, and that the applicant's special police friends had told him not to talk to Mr Cummins any more. Mr Cummins said that he considered that those things had taken matters concerning the applicant's mental health a step further.

55 Mr Cummins saw the applicant again on 31 March 2008 at court and interviewed him for 15 to 20 minutes. Mr Cummins asked him if he knew where he was, and he answered that he was in a building which was luxurious and rich. Mr Cummins asked him if he wanted to say anything about the fact that they were seated in a court room and he answered that, if Mr Cummins told him it was a court, then he knew that it was a court. The applicant said something spontaneously to the effect that a priest who had been supporting him, Father O'Connell, had run away. Mr Cummins said that he asked him where he had been accommodated since last in court and the applicant answered: 'I remember this day, a most important person died. John Po Chu, the biggest man on earth. Many families remember him on this day'. Mr Cummins asked him what was the significance of his comments and he answered: 'He's the Pope and people who don't know him are not human beings.' The applicant said that he had special police friends and, because Mr Cummins was asking so many questions, he wished to telephone his special police friends and get permission to answer. Mr Cummins asked him whether he received any visitors, and he answered: 'Many people', 'Some blind people, some deaf people, some with tattoos on their head and hands, and on their legs'. Mr Cummins asked him why he was in court, and he answered: 'You were swearing at me and then you did paperwork to bring me to court'. Mr Cummins reminded him why he was in court and he answered: 'It was dropped, documents signed to bring the children back to me'. The interview concluded with the applicant saying: 'My friends are special Australian police, they tell me not to talk with you'.

56 Mr Cummins said that the next occasion he saw the applicant before giving evidence was on 1 April 2008 after the applicant began to behave erratically in the dock. On that occasion, the applicant spoke of germs getting in through a hole in his head and eating his brain and that the judge wanted him deaf and dumb and was stopping him seeing his children.

57 On the basis of his assessment on that occasion, Mr Cummins regarded the applicant's mental health as being quite unstable. He conclusively formed the opinion that the applicant had an encapsulated delusional disorder.

58 Finally, Mr Cummins interviewed the applicant again, in the dock, shortly before giving his evidence on 2 April 2008. On that occasion he found him more guarded. He had some pages which appeared to be pages from the bible which he read out. He said that Father O'Connell was not supporting him now because Father O'Connell had destroyed the applicant's family and taken his money and his children. He said that he still had germs in his brain which were eating his brain. On that basis, Mr Cummins formed the opinion that the applicant was not in a fit mental state to proceed to trial. He considered that the applicant had a significant mental health issue and encapsulated delusional disorder and that unless he received ongoing treatment in the form of psycho-therapy and mood stabilizing medicine, he expected his condition to worsen. In Mr Cummins' opinion, it was unquestionable that there had been a pattern of decline.

59 Mr Cummins said that the applicant would understand the nature of the charges but that he was not capable of entering a plea or challenging jurors; that he could probably understand the nature of the trial, but that there would be an element of unreliability about it; that he could not follow the course of the trial; that he could not follow the evidence; and that in his current state of health, he would be unable to give reliable instructions or sensible instructions.

60 In cross-examination, Mr Cummins added that, whereas previously he had been of opinion that the applicant was fit to stand trial, his overall mental state had since deteriorated significantly, and that led him to conclude that on balance he was no longer a well man and that his mental health was such that he was not fit to stand trial. He referred to evidence given by Dr Sullivan that mental state can vary very quickly and said that in his opinion that is what had happened in this case. He referred to evidence given by Dr Welbourne as to having observed the applicant at a distance over a period of 24 hours and said that observing him from a distance did not necessarily shed any meaningful light on a specific diagnosis. The applicant needed to be specifically assessed and that is what should have happened but did not happen with the applicant.

61 Mr Cummins acknowledged Dr Sullivan's conclusion that the applicant was fit to stand trial, but observed that Dr Sullivan had not seen the applicant for some weeks and stated that there had been significant deterioration since then. As he put it, as at 2 April 2008: 'it's a different problem we've got now to the one we had in the middle of March', '... what happens is you get a[n] interaction between these various phenomena and in my opinion what now dominates for this man's mental health is the conspiracy which he believes he has - he genuinely believes he is part of'.

In my opinion he is not faking this conspiracy, this is genuine. His mental health has genuinely deteriorated and in my opinion this has been a process which has been occurring since around the middle of this month.

63 Dr Sullivan was a consultant clinical psychiatrist and the Deputy Clinical Director of the Victorian Institute of Forensic Mental Health. He said that he first saw the applicant before Christmas 2005 and had since seen him twice for formal interview at the request of Victoria Legal Aid.

64 In his first report of January 2006, Dr Sullivan diagnosed the applicant as suffering from an adjustment disorder with depressed and anxious mood, moderate in severity, in common terms known as reactive depression, but without any evidence of delusional disorder. Dr Sullivan attributed the condition to the fact that the applicant's children had been taken from him and that he was facing legal action. He considered that it was important for the applicant to commence antidepressant treatment.

65 Dr Sullivan said that he had read a transcript of Dr Burton's evidence and that it had not changed his mind. In his view, Dr Burton's testing put the applicant at the very bottom of the normal range, which is above the range of intellectual disability. Typically, when people are found unfit to plead because of intellectual impairment, they are at the very much lower range of mild intellectual ability or they are moderately intellectually disabled, and incapable of living alone.

66 Dr Sullivan said that, at his first interview of the applicant, the applicant exhibited a basic understanding of the legal process but that he was unsure whether the applicant would be fit to stand trial. Dr Sullivan considered at that stage that the applicant needed some intervention to assist his coping and to improve his mood and that, hopefully, once his mood state had improved, one would be in a better position to assess whether the applicant understood what was going on.

67 Dr Sullivan next saw the applicant on 22 May 2007 when he was called to the County Court at short notice and asked to interview the applicant and provide immediate oral testimony. Dr Sullivan's diagnosis at that time remained one of depression, and he considered that the depression had become more entrenched and in need of treatment. He said at that stage he was equivocal about whether the applicant was fit to be tried. He recommended that the applicant consult his GP for anti-depressant medication and consult Mr Cummins for a course of psychological counselling to prepare him for court.

68 Dr Sullivan saw the applicant a third time in August 2007, and noted that the applicant had not seen his GP and was uncertain as the number of occasions on which he had seen Mr Cummins. On that occasion, Dr Sullivan had confronted the applicant with a provocative line of questioning designed to elicit relevant responses and, after confronting the applicant directly with the allegations made against him, Dr Sullivan said that the applicant's answers exhibited some understanding of the allegations and constituted a plausible explanation of what might have happened. Nevertheless, at that stage Dr Sullivan remained uncertain about the applicant's fitness to be tried. His impression was that the applicant understood that he was charged with sexual offences against his daughter, which was evident in his agitation when he was confronted with the allegations, and Dr Sullivan was also of the view that the applicant did not suffer from a cognitive impairment related to intellectual disability or brain injury. But Dr Sullivan was unable to address the section 6 criteria, due to the applicant's failure or refusal to provide answers to relevant questions, and remained uncertain about the applicant's fitness to be tried. He considered at that stage that:

It remains possible that [the applicant] has a delusional disorder or a psychotic illness which leads him to exhibit delusions about his children, for instance, believing that they have been taken for nefarious purposes however there is no indication of disorder behaviour consistent with abhorrent beliefs and his raising the notion that he had seen his children since they had been taken appear purpose-serving thus I would regard this as unlikely.[33]

69 Dr Sullivan therefore recommended that the applicant be admitted to Thomas Embling Hospital for formal evaluation but, as events transpired, there was no bed available. Instead, the applicant was attended on by Dr Walton, a clinical psychiatrist, who concluded that the applicant was fit to be tried.

70 The last occasion on which Dr Sullivan saw the applicant was for five to ten minutes on 3 March 2008. On that occasion, Dr Sullivan was of the view that the applicant did not present as significantly different to previous occasions. He remained pre-occupied with the welfare of his children. But the obliquity of his answers was not something which one could easily attribute to psychiatric disorder. In Dr Sullivan's opinion, it was not something which one would expect to see as the result of depression. And in Dr Sullivan's opinion, the applicant was not suffering from a delusional disorder.

71 Dr Sullivan said that he was aware that Mr Cummins had placed the applicant's pre-occupation with his children in the delusional realm. But Dr Sullivan did not accept that it was of that intensity. In Dr Sullivan's opinion the applicant was suffering from depression, which he accepted was a mental process, in that it is disordered or impaired, but did not provide grounds for concluding that the applicant was unfit to be tried, or impact upon any of the tests which a person needs to fulfil in order to be regarded as fit to be tried.

72 Dr Sullivan further noted that the applicant's state had improved since he had had been imprisoned. Dr Sullivan attributed that to increased social contact with, among others, other Vietnamese inmates. He considered that the applicant's intellectual functioning was sufficient for him to meet the criteria to be able to enter a plea and that his cognitive functioning, intellectual functioning and ability to understand, although clearly in the lower ranges, were not so poor as to impair his understanding of the trial.

73 In cross-examination, it was put to Dr Sullivan that, when arraigned, the applicant had pleaded 'guilty' to three of the counts and then in response to the next, had answered: 'I have been in America how can I know'. Dr Sullivan said that the last statement was very unusual and warranted further explanation, and that in a clinical interview one would seek to determine further what was meant by that statement and whether it pertained to a plea of guilty or not guilty or to a psychiatric condition. He also accepted that it demonstrated internal inconsistencies and that:

It certainly raises some issue which I think should be pursued further with further discussion with [the applicant] about what it was that he meant and whether that was evidence of an inconsistency.

74 Dr Sullivan further agreed that he had always been of the view that that the applicant was at least close to the line of unfitness to stand trial and that it was something of a fine judgment whether he was fit or unfit. He acknowledged as well that he had not assessed the applicant that day, but added that:

Well obviously I haven't assessed him today but my sense is that the issue has remained a real one and one to which numbers of people have been asked to apply clinical expertise, but my feeling is from - regarding all of the evidence and from meeting with [the applicant] on a number of occasions over a period of time. I believe on balance he [is] and I believe that it's certainly not an easy task and it will require much extra work, but that's my opinion.

75 Dr Sullivan was asked whether he took issue with Mr Cummins' diagnosis of 'encapsulated delusional disorder' and he answered:

I don't think taking issue is perhaps the terminology, but in my clinical assessment my impression was despite a preoccupation with his children having been taken from him, I didn't form the belief that it was of a delusion intensity... I believe that [the applicant's] preoccupation of his children being taken is indeed a preoccupation, but I don't believe that it's of delusional intensity.

76 Dr Sullivan also agreed that the applicant's condition could have worsened since his last major dealing with him:

Of course I accept that, I haven't seen him since. I accept that it could have worsened since 3 March, but my sense was that on 3 March that I didn't believe that he had a delusional illness then.

77 Dr Sullivan acknowledged that he was concerned to learn that on 14 March 2008 the applicant had presented to Mr Cummins with a shaved head and that the applicant had said that he had been directed to do so by Jesus. Dr Sullivan said that he would wish to assess him further:

I would certainly have concerns about that, although I would still want to enquire further because [the applicant] is clearly a religious man, he in the past attended court with his priest, he has attended church ... So before I leapt to the conclusion that that was evidence of a delusional illness, I would like to assess that further.

78 Finally, Dr Sullivan accepted that it was significant that since last seeing the applicant, the applicant had formed the view that Father O'Connell was trying to kill him and that he would need to interview the applicant again in order to determine whether he was still fit to stand trial:

Well, I'd be concerned in that case that he was very paranoid and I'd want to know whether he was paranoid because of a psychotic illness.

...

... obviously I would need to interview him again and address those criteria because as has been pointed out it reflects - the criteria have to be applied at the time of the trial, so in that sense my previous assessment as each of the previous assessments before is superseded by the latest one. So you're telling me information which I can't actually comment on because I haven't formed a clinical assessment to determine the case.

79 Dr Welbourne was a newly qualified psychiatrist working as a consultant psychiatrist in the Melbourne Assessment Prison. She said that it is a 16 bed unit in the prison where persons suspected of having psychiatric disorders or suffering from severe psychiatric disorders can be assessed and treated within the prison.

80 Dr Welbourne interviewed the applicant on 28 March 2008 with his primary nurse and with an interpreter. She reported that:

When confronted and in a state of emotional arousal - annoyance, [the applicant] was capable of direct answers to direct questions. For example, I said 'do you think it is wrong for a father to have sex with his daughter?...He said I only massaged her. I massage my children, they massage me. If they are ill, I massage them. If my daughter has period, I massage her.

81 Dr Welbourne was of opinion that the applicant's answer directly addressed the question of whether the applicant understood the nature of the charges and whether he was able to answer these in a court of law.

82 Dr Welbourne reported that the applicant was annoyed and emotionally aroused during the interview and was ashamed and had intermittent avoidant eye contact and was picking his fingernails at times. He tended to prevaricate and perseverate. He said that his family had been kidnapped and taken from him. But Dr Welbourne did not regard that as meeting the test for a delusion, inasmuch as there was not a self-referential quality to the applicant's explanation. Put another way, he did not elaborate as to why it had happened to him or that there was any particular conspiracy against him.

83 Dr Welbourne said that the applicant appeared to know very well that he was to attend court on the following Monday 31 March 2008 and knew that 'it was over the massage as such'. 'He said that he knew that it was about his daughter ... he repeated the comments about the massage quite a few times'. He also said that he would like some support for the trial; that there was a school teacher called O'Connell; and he wanted the support of police and his neighbours. Dr Welbourne diagnosed the applicant as suffering from adjustment disorder with anxious mood, which she said is another description of reactive depression. She considered that he was suffering from 'shame issues' around the allegations he faced and that in many ways he was regressing into a 'childlike demeanour' as 'an element of wishful thinking in hoping that perhaps it will all go away'.

84 Dr Welbourne was of opinion that the applicant understood the nature of the charges and could enter a plea and that he was fit to challenge jurors. In her view, he was able to follow the course of the trial and to understand the substance of the evidence and to give instructions to his counsel.

85 Cross-examined on her diagnosis, Dr Welbourne replied that a depressive disorder requires two weeks of symptoms which are reasonably severe and that, on that basis, the applicant did not have a diagnosable depressive disorder. Rather he was adjusting to stressors at times with anxiety at times and at times with some depressive symptoms. She did not consider that the required psychological therapy for depression or pharmacological therapy for depression. In her view, however, he would benefit from some support from friends and family.

86 It also emerged in cross-examination that Dr Welbourne had previously seen the applicant on 18 March 2008 and on that occasion interviewed him for between 30 minutes and an hour, albeit without an interpreter, and she had known that there had been some uncertainty about his fitness to face charges and that it was thought useful to have him admitted to the unit to be observed over a 24 hour period by trained psychiatric staff.

87 It was on that basis that he was admitted on 26 March 2008 and that she saw him again two days after that on 28 March 2008. Dr Welbourne said that such an admission was a 'wonderful opportunity' to see if people have a psychiatric disorder, because they are seen over 24 hours and it was very hard to hide psychotic symptoms over 24 hours. Dr Welbourne said that she thus had the opportunity to observe the applicant in passing going about his business on the unit, although the principal responsibility for observation was undertaken by nursing staff and nursing notes as to his demeanour over the whole period were kept on file. She said that there was nothing in those to indicate that the applicant had exhibited any overt psychotic symptoms during the period of observation.

88 It appears that the judge was surprised by the jury's verdict that the applicant was fit to stand trial; for, immediately after they had delivered the verdict, her Honour said to counsel, in the absence of the jury:

I've just had the jury go out after they've read their verdict of fit to stand trial, to ask counsel whether they have any view about whether I should ask them to reconsider their verdict. It is clear that they are unanimous, that they are unanimous that he is fit to stand his trial. They have heard the evidence. But I have some concerns about whether that is in fact the correct verdict, given the evidence that we have heard this time.

Defence counsel responded that 'if it were a power that was available I'd certainly submit that it's appropriate to do it'.

89 After discussing the matter briefly with counsel, however, her Honour determined that she should accept the verdict. As her Honour explained:

I don't know that it would make any difference. The jury has obviously carefully considered their position for, in combination, about two hours, and it was clearly a unanimous verdict. I mean, they have evidence before them that of the three experts who considered the question, that is to say, Dr Burton had a different focus, but of the three, all agreed that he had a diagnosis, although they disagreed as to what that was. Of course, I told the jury they didn't have to find that he had a diagnosis, nor did they have to accept the expert's evidence, and that in the end of course they only had to be satisfied of two elements. I think perhaps on reflection it is not a situation where I should embark upon this path. Think I should accept the verdict and proceed to act on that basis.

90 Counsel for the applicant made much of the judge's initial uncertainty about accepting the verdict and submitted that it was a strong indication that the verdict was unreasonable. In his submission, the judge's attitude reflected what should have been the response of a reasonable jury to the fact that Dr Sullivan had not examined the applicant after 3 March 2008 and conceded in cross-examination that, if the applicant had demonstrated the symptoms observed by Mr Cummins between 14 March 2008 and the time of the inquiry, it would be necessary for further examination and assessment to determine whether the applicant was still fit to plead.

91 The difficulty with that submission, however, is that it leaves out of account the observations and opinion of Dr Welbourne. She did examine the applicant, twice in the period in which the applicant's symptoms were claimed to have worsened, and she was clear in her opinion that he was fit to stand trial. She also reported on the 24 hour observation of the applicant in which there had been no signs of overt psychotic symptoms ever detected. The jury may have taken the view that the applicant was feigning symptoms in front of Mr Cummins in order to deceive him.

92 I do not overlook that Mr Cummins is a very experienced forensic psychologist or that Dr Sullivan acknowledged the respect which Mr Cummins' opinion is due. I am also conscious that Dr Welbourne was newly qualified as a consultant psychiatrist and to that extent might be thought to have lacked the experience of the other two experts. On the other hand, in order to qualify as a consultant psychiatrist, Dr Welbourne had undertaken years of post-graduate study and practice as a psychiatrist, as she deposed. There was, therefore, no suggestion that she was short of the competence or experience necessary to make the assessments on which she reported. Nor was there any suggestion that she failed to detect or take into account any matter which might have detracted from her opinion. Importantly, too, the judge gave the jury a comprehensive summary of each expert's evidence and reminded them as part of her charge of the relative experience of each.

93 It is troubling that Mr Cummins was so clearly of the view that the applicant was not feigning his condition. Given Dr Sullivan's evidence, one must acknowledge that the applicant's mental state could have deteriorated as quickly as Mr Cummins believed it to have done. On that basis, it would have been open to the jury to conclude that the deterioration observed by Mr Cummins rendered the applicant unfit. And, presumably, the judge had similar considerations in mind when her Honour questioned counsel as to whether the jury should be asked to reconsider their verdict. But, as her Honour also plainly appreciated, the test for present purposes is not whether it would have been open to the jury to conclude that the applicant was not fit to stand trial, but rather whether it was unreasonable for the jury to conclude on the balance of probabilities that the presumption of fitness had not been rebutted.

94 In a case like this, I take the function of this court to be to make its own assessment of the evidence, not for the purpose of concluding whether the court is of the view that the applicant was shown to be more likely than not unfit to stand trial, but for the purpose of determining whether the jury acting reasonably must have been satisfied on the balance of probabilities that the applicant was unfit to stand trial.[34] And in making that assessment, we must bear steadily in mind the advantage which the jury enjoyed in assessing the worth of a witness's evidence by seeing and hearing the evidence given. Given Dr Sullivan's and Dr Welbourne's evidence, I do not consider that the jury acting reasonably were bound to be satisfied that the presumption of fitness was displaced.

Ground 6 - Onus placed on the applicant to establish unfitness to plead

95 Section 7 (5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 provides that, where a question of fitness to stand trial is raised by the judge, as opposed to either party, the prosecution has carriage of the matter, but no party bears any onus of proof in relation to it. It is accepted that in this case the question of mental fitness was raised by the judge and therefore that neither party bore any onus of proof in relation to it.

96 Under Ground 6, counsel for the applicant contended that the judge had erred by directing the jury that the applicant bore the burden of establishing that the applicant was unfit to stand trial. In counsel's submission the following passage of the judge's directions to the jury effectively imposed the onus of proof on the applicant:

As I said at the outset, usually in a criminal trial the prosecution brings the charges against an accused, and it is for them to prove the charges. An accused person does not have to prove anything, and is presumed innocent unless and until the prosecution proves their guilt, and in a criminal trial, the prosecution bears a heavy onus of proof, it must prove the charges and satisfy a jury of the guilt of an accused beyond reasonable doubt.

But, as you have been told, this investigation is different. The law presumes that an accused person is fit to stand trial unless the contrary is established. You do not have to [be] satisfied beyond reasonable doubt that the accused is unfit to be tried. It is sufficient if you are satisfied on the balance of probabilities that he is unfit, and balance of probabilities means more likely than not. So that means that if, after consideration of all of the evidence, you find that it is more likely than not that the accused is unfit to be tried, then you would bring in that verdict of unfit.

So the starting point is that every person charged with a criminal offence is presumed fit to stand his or her trial. If, however, on such evidence as you accept in this case, the scales are tipped even slightly in favour of the accused being unfit, then you would be satisfied to the required standard. Even slightly in favour of him being unfit would be more likely than not. If, however, the scales were evenly balanced, then you would not be satisfied that it was more likely than not and you would bring in a verdict of fit to be tried, and it follows that if the scales were tipped in favour of the accused being fit to be tried, then again you would bring in that verdict. That is a matter for you on the evidence that you have heard.

97 In my view, Ground 6 should be rejected. I see nothing in the cited passage, or otherwise in the judge's charge, which implies that the applicant bore the burden of proving that he was fit. To the contrary, as is set out above, the judge expressly directed the jury that 'if, after consideration of all of the evidence, you find that it is more likely than not that the accused is unfit to be tried, then you would bring in that verdict of unfit' and that 'it follows that if the scales were tipped in favour of the accused being fit to be tried, then again you would bring in that verdict'.

Unsurprisingly, there was no exception taken to that part of her Honour's directions.

98 Ground 7 was a Kotzmann[35] ground that, if none of the alleged individual errors in the judge's charge were sufficient in themselves to warrant that the conviction be set aside, in aggregate they had that effect.

99 It will be apparent from what I have said under the headings of the other grounds of appeal that I reject that contention.

100 For the reasons which I have given, I consider that the application for leave to appeal should be dismissed.

101 For the reasons given by Nettle JA I would also dismiss the appeal. I wish only to add some brief comments on the jury finding that the applicant was fit to stand trial.

102 I was initially concerned by the trial judge's expression of uncertainty as to whether the jury verdict was correct. In reaching the conclusion that the attempt to impugn the jury verdict fails I have given some weight to the evidence of Dr Welbourne, who examined the applicant on two occasions shortly before the trial and was able to draw on observations of his behaviour over a twenty-four hour period. The applicant's failure to display overt symptoms of psychosis during those observations was at odds with his more florid behaviour when he was interviewed by Mr Cummins on 1 April 2008. Having regard to the whole of the expert evidence which is extensively described in Nettle JA's reasons, I do not consider that a reasonable jury must have found that the applicant was unfit to stand trial.

103 I have had the considerable advantage of reading the reasons of Nettle JA in draft and I respectfully agree with them and his conclusion that the application for leave to appeal should be dismissed.

[1] Expressio unius est exclusio alterius: see Pearce and Geddes, Statutory Interpretation in Australia 6th Ed, 4.28, Salemi v Mackellar [No 2] [1977] HCA 26; (1977) 137 CLR 396, 404 (Barwick CJ).

[2] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 21 [62] (Gaudron J), 106 [319] (Hayne J), 132 [399]-[400] (Callinan J) (each of whom were in dissent but not on this point of principle), and 58 [177] (Gummow J who was the only member of the majority to deal with the point specifically).

[3] R v Frith (1790) 22 How St Tr 307; R v Dashwood [1943] 1 KB 4; R v Benyon [1957] 2 QB 111, 115_; R v Presser_ [1958] VicRp 9; [1958] VR 45, 46; Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1, 8.

[5] [1994] HCA 41; (1994) 181 CLR 230.

[6] Ibid 245 (Mason CJ, Toohey and Gaudron JJ).

[7] See also R v Khallouf [1981] VicRp 38; [1981] VR 360, 364-5.

[8] Crimes Act 1976 (Act No 8870), s 8.

[9] Hansard (Assembly) 27 May 1976, 1403-4.

[11] [1981] VicRp 38; [1981] VR 360.

[12] [1994] HCA 41; (1994) 181 CLR 230.

[13] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

[14] Ibid [62] (citations omitted) (in diss, but not in principle).

[16] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 135 [34] (Callaway JA), 155 [107] (Batt JA).

[17] Taylor v R (1978) 22 ALR 599, 605, 617; (1978) 45 FLR 343, 349, 363-4.

[18] Ibid ALR 610; FLR 355.

[19] Ibid ALR 610; FLR 355.

[20] Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659, 663; R v Weise [1969] VicRp 117; [1969] VR 953, 960-1; R v Matusevich and Thompson [1976] VicRp 47; [1976] VR 470, 476.

[21] [2004] VSCA 72; (2004) 8 VR 242, 253 [49]; see also Heydon_, Cross on Evidence_, [29075]

[22] ALR 617; FLR 363.

[23] See n 20.

[27] [2008] HCA 16; (2008) 235 CLR 334.

[28] [2008] VSCA 198; (2008) 20 VR 69.

[29] As to the likelihood of a jury treating evidence of uncharged sexual acts as evidence of propensity (regardless of the purpose for which the evidence of uncharged sexual acts is tendered or the directions which may be given as to its use).

[30] [2008] VSCA 198; (2008) 20 VR 69, 88 [64]-[65].

[33] From Dr Sullivan's notes in his report of August 2007.

[34] See and compare M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 502 (Brennan J).

[35] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 147 [114] (Batt JA).