Rich v Attorney-General for the State of Victoria [1999] VSCA 14

Rich v Attorney-General for the State of Victoria [1999] VSCA 14 - VSCA 1999 case summary — Zoe

[11]

Judge: "... But I propose to go ahead and empanel a jury. ... Place the prisoner in the dock." Rich: "Do you understand I don't want to be here, sir? I don't want to be rude to you; I'd like to leave, please?" ... Judge: "You must be present for the arraignment and empanelling of the jury." Rich: "I must take no part in these proceedings, sir; I don't want to be rude to you, I don't want to be here." Judge: "You may be present or absent after that, as you wish." Rich: "No, well I'm not taking part of (sic) the process, sir; I'd like to leave, please." Judge: "Alright, you can leave after the jury is empanelled." Rich: "I don't want to fight with anybody; I don't want to do anything; I'm not taking part in any of this, okay?" Judge: "Yes, all right." Rich: "It's a sham, you ought to be ashamed of yourself, sir, I am not taking any part of this process, because what you are trying to do sir, you are either trying to send me over the cliff and I'm about two seconds away from it, or explode, and I won't do either, do you understand me?" Judge: "Yes, all right." Rich: "I'm not in the state of mind, I want to see a doctor and I want to get some treatment. I cannot take part of this process." Judge: "All right." Rich: "Okay?" Judge: "Yes." Rich: "Don't just nod to me, because you just shafted me from day one. Do you understand I'm sick? It took me all my resolve last Friday. This cunning wench here would be happy with a bloody G.P. Either way she gets a victory. Do you understand that; I'm sick? I don't want to be rude to you, but I don't want to take part in this whole crap." Judge: "All you are saying is being video-taped, so there will be a record of it." Rich: "Well that's it; just fob me off again, that is what you are really saying. Whether its video-taped I don't give a rat's arse either, sir. I don't want to take part in these illegal proceedings. That's what you are doing." Judge: "All right, you have made that clear." Rich: "Well, can I go?" Judge: "No, you must stay for the empanelment. Bring in the jury." Rich: "What are you doing?" Judge: "You will be arraigned before the jury panel and a jury will be ..." Rich: "No, I won't, I'm sorry, I won't be arraigned before the jury, okay? I'm telling you I won't be arraigned before the jury, I'm telling you now, I want to leave now." Judge: "You are not permitted to leave now." Rich: "I am permitted to leave, I'm telling you now, I want to leave now, you are not going to fucking do this, rat, I'm telling you, all right? And I will fucking ... you ain't fucking going to do it, all right? You understand that? You are driving me over the fucking hill, you idiot. You understand that? You want to ... like this, wake up to yourself, you silly old dog. There will be no fucking jury, I want to leave. I don't want to fight nobody, but if you force me, that's what will happen. Now get out of here, before I lose it completely, get me out of here. ...There'll be no fucking arraignment, rat; I'm telling you. Now, please let me go before I lose it completely, I plead with you, please let me go. I'll get on my hands and knees, please let me leave here, before I lose it completely; I plead with you, let me out of here. I don't want to fight anybody; I don't want to get into more trouble, I can't handle the pressure, do you understand that? Can't you see that? Are you blind as well as deaf? ... Please let me go sir, I beg of you, let me go, I'm not in a fit state of mind today. It might be better tomorrow; today I'm not. I don't want to fight any of these guys, I have no beef with them, but I tell you now, you are forcing me into it. ..." Judge: "Yes, very well then. You recognize that you can't by any means at all, postpone these proceedings, they will come on ..." Rich: "I want a fair go, sir. I want a fair go. Three months out of here in a decent hospital might fix it. I don't know. All I know I'm looking for answers that this trial going in the state where I am now is not going to work, and you just want to put me through the appeal process so your crony mates across the road, you just shaft me again. It won't happen. You done it the last time, you won't do it again. Eight years in custody without a conviction; how much more credit do I need? Now let me go please; there'll be no jury here today. Now please let me go and I want to go. I've got no arguments with these gentlemen. They've been kind to me and I don't want to fight them. You'll force me into it if you bring the jury in, I'm telling you. So you take that responsibility because I'll be marching straight out." Judge: You'll not be the first one, or the last, I should think ..." Rich: "Don't threaten me, I'm telling you, rat ..." Judge: "I'm not threatening you ..." Rich: "I'm telling you, rat, don't fucking threaten me, dog, I'm telling you, you'll lose." Judge: "If you do 12 months for contempt of court ..." Rich: "I've done four years already. You've got eight more. How many more do you want? Who gives a shit about contempt? How many more do you want? And that's your answer, isn't it? Don't give the accused any fairness, just give him contempt. Go ahead and do it. I challenge you. Contempt. And then you'll be out of here because you will be biased. Go on. Do it. I challenge you. Do it. You will be gone. Don't you threaten me. Go on. You made the utterance. Let's go. I'll go and do 12 months out there easily and it'll be 12 months further to exacerbate the delay and make me even worse than what I am. So you go and do it. Don't just threaten me, cunt. Go on, I'll tell you now. You won't get it today, cunt, I'm telling you. You can play your intellectual games here. It won't work. Now I want to leave here. I'd like to leave civilly. I don't want to fight anybody. If it gets to that point it will, and you will drag me out of here. And I will probably face assault, but it'll be your responsibility because you had the opportunity to stop it. I am not fit to stand trial today or face these proceedings and if you want to push me on, whether it happens this week, or next week or next month, it will happen, right. You understand that? I want a break. I want a break from incarceration, from being shafted, from being dragged across from pillar to post. I want to go to a normal hospital. And ...me medication over a week if some fucking idiot in there fucks up. Whole bloody week. I beg and plead for it. I don't get it. Remove the prisoner. Lock him up again. That's what I get every fucking day, you cunt. May I go now, because this is not going to get anywhere? You'll be just burning this fucking jury, and I'm telling you now I'm not in a fit state of mind. If you can't see that, you'd better fuckin' retire. Now may I go? I'm only going to ask it once more. Please." Judge: "Yes, you can go on this occasion." Rich: "Thank you, very much, sir. I've had enough. I've had enough of these sham proceedings." Judge [to Rich's counsel]: "Mr. O'Doherty, you want to say something?" Mr. O'Doherty: "Might I suggest that the court adjourn for the day. I will be seeking to make an application for bail tomorrow ..." (b) Words uttered to prosecutor on 9 August 1995 Mr. Gregory Pern, the tipstaff to his Honour Judge Byrne at the time of the appellant's trial in 1995 on the armed robbery charges, deposed that he was present in Court 9 of the County Court on 9 August 1995 when the appellant was brought into court, after lunch, prior to the resumption of the trial. When the appellant was passing the Bar table, he paused and said to the prosecutor: "You're fucking gone, bitch, you're fucking gone".

[13]

"One chance, one fucking chance. Watch your back. Every time you turn that car on of yours where you're living at the moment, I'm telling you, okay. I don't care how long it takes, 25 years bitch, I'll have a go at you. One go, that's all I want and you think by locking me up for 25 years, I don't have legs and arms out there. I've a bank account overseas and even without the money, we'll be able to get you any time, slut, I'm telling you. All I ever wanted is a fair go. You've pulled every dirty, filthy trick under (sic) the book." Unidentified speaker: "That'll do." Rich: "You shut your mouth Mr. Andrews. This is not your fight, okay? I have no fight with you. Can I have a glass of water, please? You know you're only worth 30 grand, don't you, that's all you're worth. You think your little gown and wigs will protect you. In the end it won't ... like me. I don't give a fuck, that won't protect you from ... it doesn't matter, the damage is done, I'm not going to worry about it. Don't worry about it. The damage is done and I don't give a rat's arse. I'll go away for 20 years, but she'd better make it life. I go to bed thinking about her every night. A thousand body guards won't help her. If he's any guts he'll prefer charges now if he's got any guts at all." [It should be noted that, in his affidavit sworn on 18 April 1996, Mr. O'Connor swore that the words "don't you", where they appear in line 3 of this quotation, when checked against the recording, should read "bitch".] Not surprisingly, these comments disconcerted the prosecutor. She drew the trial judge's attention to them shortly after he entered the court. The judge then adjourned the proceedings for the day and the appellant was returned to the cells. At about 2.15 p.m. on 9 August 1995 he was in the company of a security officer, one Michael Lambe. Lambe swore an affidavit in which he deposed that he had had a conversation with the appellant during which the appellant said to him that: "He had just finished abusing the Crown prosecutor in his trial a few moments before." Lambe also deposed that the appellant said that the next time he was asked to return to court: "He fully intended to abuse the current trial judge for his incompetencies in the hope that such actions will necessitate the judge having to disqualify himself from the trial, thereby providing him with the opportunity of a new and fairer trial."

[18]

The foregoing represents the substance of the material which the respondent Attorney-General put before the Supreme Court in support of the application that the appellant should be committed for contempt of court. It is clear from that material that what was being alleged were two discrete episodes of conduct, each amounting to a contempt. Each episode was alleged to have occurred during the course of a lengthy trial in which the appellant had initially been presented upon eight counts of armed robbery and four counts of car theft said to have been committed between April and December 1991. The trial proceedings were conducted before his Honour Judge Byrne in the County Court. The prosecution was led by Ms. Douglas (now Judge Douglas) and the appellant was represented by two counsel, experienced in the criminal law. The proceedings were lengthy and apparently arduous to all concerned, not least because of the occasional intemperate behaviour of the appellant which resulted in his counsel being dismissed and recalled at various times during the trial. A brief summary of the course of the proceedings was given to the judge who heard the contempt application. Such a summary is to be found in the judgment of the Court of Appeal in R. v. Rich (No.1), (Court of Appeal, unreported, 17 December 1997). The armed robbery trial had proceeded for nearly four months before a jury was empanelled on 27 June 1995 - that is the day following the first of the episodes alleged to constitute a contempt of court. Those four months had been consumed by the making and resolution of a variety of applications. Such applications involved, inter alia, challenges to the composition and complexity of the presentment; and to the admissibility of certain evidence; requests had been made to cross-examine witnesses who had not been called on the committal proceedings; there were also numerous applications for stays and/or adjournments of the trial. The appellant had been in custody since 2 December 1991 and, in the intervening period, two of his co-accused had been dealt with by the trial judge. This, in turn, had led to applications made by the appellant and/or his counsel for the trial judge to disqualify himself from continuing to preside at the appellant's trial. When the trial judge refused to do so, an unsuccessful application was made to the Supreme Court seeking an order to prohibit the trial judge from further presiding. When that had failed more applications were made to sever the presentment and to stay or adjourn the further hearing of the trial. In support of these latter applications it was contended that the mental health of the appellant had deteriorated to the point where he was no longer able to cope with the rigors of the trial, nor to co-ordinate his thoughts in a way in which he could give adequate instructions to his counsel.

[19]

From time to time the judge had temporarily adjourned the trial to accommodate the appellant. In early May he refused an application to grant separate trials in respect of each of the twelve counts on the presentment but acceded to an application to sever counts 1, 2, 3 and 6 (three counts of armed robbery and one of car theft). The trial thus proceeded upon a presentment containing eight counts, five of armed robbery and three of car theft. Because of the appellant's erratic behaviour, the prosecutor requested that a jury be empanelled to determine the issue of the appellant's fitness to plead. On the same day, 11 May 1995, the judge heard evidence from a psychiatrist (Dr. Lewis) and a forensic psychologist (Mr. Bernard Healey) each of whom had examined the appellant on the instructions of his solicitor; and from Mr. Walton, a psychologist who was called by the prosecution. The trial judge had then adjourned the trial to 19 June upon which date appellant's counsel submitted that the appellant was not in a fit state to stand his trial. Counsel again called evidence from Dr. Lewis and Mr. Healey, and also from another psychiatrist Dr. Drysdale. His Honour ruled that there was a triable issue of fitness to stand trial. On the following day, appellant's counsel submitted that there was no triable issue as to his client's fitness but submitted that the presentment should be further severed to enable the appellant to cope with the exigencies of the trial. If that course was not to be permitted, he submitted that there should be a permanent stay. Both these applications were refused and, on 21 June, his Honour empanelled a jury to try the issue of whether the appellant was fit to plead. The Crown called Drs. Lewis and Drysdale, Mr. Healey and the police informant, Senior Sergeant Kent. The appellant himself gave evidence. On 23 June the jury returned a verdict of "sane" within the meaning of s.393 of the Crimes Act, as it stood on that date. The trial was then adjourned to the following Monday, 26 June. On that day - the day of the first alleged contempt - appellant's counsel again sought a permanent stay of the trial on the ground that it would be unfair to try the appellant in his current state of health. That application was refused and the judge called for the jury panel.

[62]

The appellant submitted that this material, when taken in the context of the evidence before Byrne, J., was so cogent and compelling as to drive this Court to the view that, if it had been available to the trial judge, there was a significant possibility that he would not have been satisfied that the impugned conduct constituted contempt of court (cf. R. v. Challoner, Court of Appeal, unreported, 28 July 1998, per Kenny, J.A.). Indeed the appellant went so far as to submit that because of the newly produced material this Court had no choice but to uphold the appeal and, as he submitted, grant a new trial. In the course of developing this submission the appellant canvassed at some considerable length, and not without dexterity, passages from psychiatric journals and various decisions in which courts had discussed, in different contexts and factual circumstances, the concept of "non-insane automatism" and/or "dissociation" induced by psychological factors (e.g. R. v. Falconer (1990) 171 C.L.R. 50; R. v. Donyadideh (Federal Court, unreported, 2 August 1995). By reference to these authorities the appellant sought to construct a submission that, if the trial judge had properly assessed the material before him, he would have entertained a reasonable doubt about the voluntariness of the appellant's conduct. Indeed, he submitted that, if Healey's letter of 28 October 1998 had been before him, the trial judge would have been compelled to entertain such a doubt. Thus, it was the appellant's submission that the evidence which was before his Honour, properly analysed, made it clear that he was in a "dissociative" state in which, as a consequence of repeated "psychological blows" suffered by him, he was from time to time lapsing into states of unreality where his mind was not associating with his conduct. If counsel had asked the right questions, it would have been readily apparent. Now that he, the appellant, had asked the correct questions, everything had been made clear.

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