Victors (a pseudonym) v DPP

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Victors (a pseudonym) v DPP (No 2) Citation: [2023] ACTCA 27 Hearing Date: 17 May 2023 Decision Date: 15 June 2023 Before: Loukas-Karlsson, Baker and Bromwich JJ Decision: 1. The finding by the primary judge that the appellant was fit to plead be set aside. 2. The investigation into the question of whether the appellant is unfit to plead be remitted to be heard by a judge of the Court. Catchwords: CRIMINAL LAW – appeal from an interlocutory decision – where primary judge found the appellant was fit to plead – whether the primary judge approached the investigation into fitness to plead as though the appellant bore a burden of proof contrary to s 312(4) of the Crimes Act 1900 (ACT) – whether the primary judge erred in taking into account the absence of evidence from the wife of the appellant – whether evidence of the observations of legal representatives were correctly described as amounting to no more than personal opinions of lay persons – whether the primary judge failed to take into account the evidence of legal representatives concerning matters germane to the investigation – whether the primary judge gave inappropriate weight to opinion evidence from an expert witness who had not examined the accused – appeal allowed on appeal ground 3 – matter to be remitted for the investigation into the question of whether the appellant is unfit to plead to be heard by a judge of the Court Legislation Cited: Crimes Act 1900 (ACT) ss 310, 311(1), 311(1)(a), 311(1)(b), 311(1)(f), 312, 312(1), 312(3), 312(4), 313, 314, 315, 315A, 315(1)(a) Evidence Act 2011 (ACT) ss 8, 78, 141 Cases Cited: R v Fisher [2011] ACTSC 56; 210 A Crim R 199 R v Stevens [2010] SASCFC 1; 107 SASR 456 R v Victors (a pseudonym) [2022] ACTSC 33 Victors (a pseudonym) v DPP [2023] ACTCA 14 Parties: Dan Victors (a pseudonym) (Appellant) ACT Director of Public Prosecutions (Respondent) Representation: Counsel J Pappas (Appellant) K McCann (Respondent) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 65 of 2022 Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 1 December 2022 Case Title: DPP v Victors (a pseudonym) (No 2) Citation: [2022] ACTSC 328 Court File Number: SCC 21 of 2021

THE COURT:

1. This is an appeal from a finding made by a judge of this Court that the appellant was fit to plead, which perhaps would have been more accurately expressed as a finding that he was not unfit to plead, following an investigation under s 315A of the Crimes Act 1900 (ACT). All provisions referred to in these reasons are of that Act, unless indicated to the contrary.

2. The investigation concerned the question of whether the presumption of fitness to plead in s 312(1) had been rebutted. The question of fitness to plead is a question of fact, is to be decided on the balance of probabilities, and no person bears a burden of proof in relation to that question: see s 312(3) and (4). Sections 311, 312, 313 and 315A are reproduced below.

3. The appellant has been charged with 15 historic child sexual offences alleged to have been committed against his two daughters in the period between the second half of 1980 and early 1988. The appellant has pleaded not guilty and is now 82 years of age. He is referred to by the pseudonym “Dan Victors” to protect the identity of his daughters.

4. It is important to note that the application for an investigation to take place was made by the Director of Public Prosecutions, not the appellant. Doubtless that was done to ensure that this issue was addressed, upon it becoming apparent that fitness to plead may be in question, rather than being left as a possible problem at the trial or in the lead up to the trial. The investigation took place following the necessary finding being made by Norrish AJ (in R v Victors [2022] ACTSC 33) that there was a real and substantial question of the appellant’s fitness to plead, and that question being reserved for determination, in accordance with s 314.

5. The primary judge received evidence both in writing and orally on 24 August and 29 November 2022, as detailed below. His Honour’s judgment was delivered shortly thereafter on 1 December 2022. On 1 February 2023, Berman AJ granted leave to appeal from that decision by reference to specific grounds that were sought to be relied upon: Victors (a pseudonym) v DPP [2023] ACTCA 14 at [10].

The key provisions

6. The key provisions pertaining to unfitness to plead in Div 13.2 of Pt 13 are as follows: 311 When a person is unfit to plead (1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot— (a) understand the nature of the charge; or (b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or (c) understand that the proceeding is an inquiry about whether the person committed the offence; or (d) follow the course of the proceeding; or (e) understand the substantial effect of any evidence that may be given in support of the prosecution; or (f) give instructions to the person’s lawyer. (2) A person is not unfit to plead only because the person is suffering from memory loss.

312 Presumption of fitness to plead, standard of proof etc (1) A person is presumed to be fit to plead. (2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead. (3) The question of a person’s fitness to plead— (a) is a question of fact; and (b) is to be decided on the balance of probabilities. (4) No party bears a burden of proof in relation to the question.

313 Who can raise question of unfitness to plead The question of a defendant’s fitness to plead to a charge may be raised by a party to a proceeding in relation to the charge or by the court.

315A Investigation into fitness to plead (1) On an investigation into a defendant’s fitness to plead— (a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and (b) if the court considers that it is in the interests of justice to do so, the court may— (i) call evidence on its own initiative; or (ii) require the defendant to be examined by a psychiatrist or other health practitioner; or (iii) require the results of the examination to be put before the court. (2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant’s privacy, the court should be closed to the public while all or part of the evidence or submissions are heard. (3) The court must decide whether the defendant is unfit to plead. (4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.

7. Additionally, ss 314 and 315 address, respectively, the procedure to be adopted if a question of fitness to plead is raised, being the process that was undertaken by Norrish AJ, and the procedure if the question is reserved for investigation, which is what followed from Norrish AJ’s satisfaction being reached that there was a real and substantial question about the appellant’s fitness to plead.

The relevant principles

8. A list of the relevant principles on an investigation under s 315A into whether the presumption of fitness to plead had been rebutted, emerging from the authorities, was helpfully summarised by Refshauge J in R v Fisher [2011] ACTSC 56; 210 A Crim R 199 at [29]-[30], with many indications of important steps that can be taken to address impairments sufficiently so as to maintain the presumption of fitness to plead: [29] It is perhaps useful to identify in the present context what I extract from these authorities and the authorities on which they, in turn, have relied, and the principles I should apply. I do this particularly, but not limited to, the situation of an accused person with an intellectual disability. Those principles are: (1) The notion in s 311 of the Crimes Act of a person’s mental processes being disordered or impaired should not be read down so as to exclude the developmentally or intellectually disabled: R v Mailes (2001) 53 NSWLR 251; 126 A Crim R 20 at [213]. (2) The fact that the disorder or impairment may cause an accused person to conduct his or her defence in a manner which the court considers is contrary to their interests does not, of itself, mean that they are unfit to plead: R v Taylor (1992) 77 CCC (3d) 551 at 564-565. (3) That the disorder or impairment may produce behaviour that will disrupt the ordinary flow of the trial does not make the person unfit to plead: R v Taylor at 564- 565. (4) That the disorder or impairment prevents the accused from having an amicable, trusting relationship with counsel does not render the person unfit to plead: R v Taylor at 564-565. (5) That an accused person would have presented a better defence had he or she been on medication not provided at trial is not relevant to the question of fitness to plead: R v Rivkin (2004) 59 NSWLR 284 at [298]. (6) The court is not required to search, fruitlessly, for a hypothetical accused with capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level: R v Rivkin at [299]. (7) That is to say, fitness to plead does not require an accused person to have a particular level of intelligence, legal knowledge or experience, or common sense: R v Bailiff at [44]. (8) The court may take into account the appearance and behaviour of an accused when he or she appears for trial: R v Khallouf [1981] VR 360 at 364-365; Bailiff v The Queen at [16]. (9) The court may also consider factors such as the conduct of the accused during any interview by the police, which includes consideration of the person’s understanding of and response to questions, the person’s prior experience with police investigations and with instructing lawyers, and any difficulties in his or her comprehension in the past: R v Stevens (2010) 107 SASR 456 at [60]. (10) The court can also take into account factors such as the attention span of the accused: R v McKitterick (2004) 36 SR (WA) 115 at [24]; R v Polanski [1999] NSWSC 433 at [53]. (11) Lack of understanding of the proceedings can be shown by the accused, although showing he or she can follow the evidence of a witness, by reacting in a quite inappropriate way, disclosing a lack of appreciation of the bases of the evidence and its import: R v Polanski at [60]. (12) Relevant evidence may be available from support persons for the accused or from lawyers who had represented him or her in the past, identifying difficulties in taking instructions, providing advice or acting: R v Stevens at [33]. (13) The tests set out in s 311 of the Crimes Act do not require a complete understanding of the proceedings and the issues, especially of substantive law, to which they are addressed: Ngatayi v The Queen (1980) 147 CLR 1 at 8. (14) Many crimes are committed by persons of low intelligence, lack of insight into their behaviour and low cognitive skills, which does not of itself mean they are unfit to plead and the tests need to be applied in a reasonable and common sense fashion: Ngatayi v The Queen at 8; R v Stevens at [58]. (15) The assessment needs to be conducted and the finding determined in the context of the actual charge preferred, for it is relevant that some charges are more complicated to understand than others: R v Stevens at [57]. (16) When an accused person is represented by counsel, that is a relevant factor to be taken into account: Ngatayi v The Queen at 9; R v Dunne [2001] WASC 263 at [14]. (17) The length of the trial is also a relevant factor to consider: Kesavarajah v The Queen at 245-246; 111. (18) Where steps can reasonably be taken to accommodate the difficulties of the accused, including adjournments, “one-on-one” assistance to follow the proceedings, insistence on brief, clear questions to the accused if he or she is examined on oath, an opportunity for the accused to narrate his or her version of events without interruption and the like the implementation of these will mean the accused is not unfit to plead: Kesavarajah v The Queen at 246; 111, R v Smith [2008] NSWDC 23 at [36]; R v Tuigamala [2007] NSWSC 493 at [22]. (19) That a Guardianship Order has been made in respect of an accused does not prevent an accused from giving instructions to his or her counsel nor render any such instructions ineffective or insignificant and, having been made on different criteria, is not determinative of the question of the accused’s fitness to plead: R v Bailiff at [102]- [110]. [30] This list is, of course, neither comprehensive nor exhaustive and the variety of circumstances that confront a court required to decide on the accused’s fitness to plead will mean other matters are relevant and helpful. The notice of appeal

Leave to rely upon an amended notice of appeal

10. On the eve of the appeal hearing, an application was made for leave to rely upon an amended notice of appeal, containing two additional grounds of appeal, essentially contending that the terms of s 315A(1)(a) were such as to preclude the application of exclusory rules of evidence in the Evidence Act 2011 (ACT), also having regard to s 8 of the Evidence Act which provides that it does not affect the operation of the provisions of any other Act. That application was dismissed at the appeal hearing because the proposed ground of appeal did not have sufficient merit. In particular: (a) section 315A repeatedly refers to “evidence”, rather than to a more neutral concept such as “material”; (b) section 312 is cast in language reflecting Evidence Act concepts, such as “presumption”, “rebutted”, “question of fact”, “balance of probabilities”, and “burden of proof”, noting that specific provision is made for a question arising in a criminal proceeding (s 310) being determined on the balance of probabilities, contrary to the ordinary operation of s 141 of the Evidence Act; (c) there is no apparent reason why the ordinary rules of evidence would not apply to an investigation under s 315A; (d) even if the three foregoing points were incorrect, no injustice is apparent in the evidentiary rulings that were made, let alone substantial injustice.

11. Further, we note that whilst a bare submission concerning s 315A(1)(a) was made before the primary judge, it was not pressed and no ruling was sought, such that the ground of appeal would relate to a ruling that was not expressly made.

Ground 1

12. As to ground 1, which alleges that the primary judge conducted the investigation as to the appellant’s fitness to plead as though he bore a burden of proof contrary to s 312(4), his Honour, at [6], quoted ss 311 and 312 in full, including in particular s 312(4) which provides that no party bears a burden of proof in relation to the question of fitness to plead. His Honour then stated at [7]: Pursuant to s 312, the starting point is that the respondent is fit to plead. The question before me is whether this presumption, on a balance of probabilities, has been dispelled.

13. After considering the evidence, the primary judge concluded: [55] Ultimately, I am of the view that the evidence favouring an order that the respondent is unfit to plead is equally balanced by the evidence to the opposite effect, but perhaps favouring the prosecution case to a small degree. [56] Importantly the concessions made by Dr Kuhl, together with evidence of Prof. Brew about the existence of dementia at all, together mitigate against a finding that the respondent is unfit to plead. [57] Bearing in mind that the presumption is in favour of a fitness to plead, it must follow that, on the prosecution's application, a finding is made that the respondent is fit to plead. [58] Accordingly on the enquiry prompted by the orders of Norrish AJ, I find that Mr Victors is fit to plead.

14. None of the above supports the conclusion advanced by the appellant that an onus had been cast upon him to prove that he was not fit to plead. Just because there is no burden of proof as to the ultimate issue of fitness to plead, does not mean that there are not opposing parties to the investigation, nor that competing or conflicting evidence will not be adduced.

15. As the argument developed both in written reply submissions and in oral submissions, the real burden of the appellant’s argument was that the investigation was conducted on an adversarial basis, rather than an inquisitorial basis, said to be required. It may be doubted that this is an entirely accurate way in which to characterise the nature of a proceeding of this kind, given its legislative history as adverted to by the prosecution. However, this is not a suitable vehicle for that to be determined, especially as it is not determinative for this ground of appeal, nor for the appeal overall.

16. At the end of the first hearing day, the primary judge observed in an exchange with the prosecution that the investigation was “to some degree, or perhaps to a large degree, an inquisitorial process”. Neither this, nor anything else pointed to by the appellant, supports any reasonable conclusion that his Honour departed from the mandate in s 312(4) that no party bears a burden of proof.

17. It follows that ground 1 must fail.

Ground 2

18. As to ground 2, asserting error on the part of the primary judge in taking into account the absence of evidence from his wife in the impugned paragraph of the reasons, his Honour observed at [29] (which is also relevant to ground 3): With respect, I did not find the observations of Mr Taylor [the appellant’s solicitor] and his staff to be of particular assistance. They are the personal opinions of laypersons. I would have been more assisted by observations from lay persons who have had a good deal more regular contact with the respondent. The notable absence is any oral or affidavit evidence from his wife. I do however note that Mrs Victors did speak to Dr Kulh.

19. The comment by the primary judge about the nature of the evidence of the appellant’s solicitor, Mr Taylor, and his staff, is addressed in relation to ground 3.

20. In the South Australian Court of Criminal Appeal in R v Stevens [2010] SASCFC 1; 107 SASR 456, Sulan J (with whom Nyland and Layton JJ agreed) observed in relation to broadly similar fitness to plead legislation, albeit without the provision of no burden of proof on the question of fitness to plead, at [33]: The judge referred to a number of deficiencies in the material before her. She noted that there was no evidence led from any support person who had worked with the appellant; that there had been no evidence adduced from any persons who had acted for the appellant in the past of any difficulty in taking instructions, advising or acting for him. The judge had raised her concerns in this regard during the hearing, and granted an adjournment for the appellant’s advisers to consider whether any former legal advisers should be called to give evidence.

21. That passage, cited by Refshauge J in Fisher at [29(12)], reproduced at [8] above, demonstrates that it is orthodox and unremarkable that the primary judge referred to the absence of evidence from the appellant’s wife, as such evidence is capable of being material to the criteria in s 311(1)(a), and could perhaps have been highly probative. It was undoubtedly a potential deficiency in the evidence, to which his Honour was entitled to refer. The absence of any burden of proof does not change the fact that such evidence was not adduced. The substance of the legitimate point being made by his Honour was that he had evidence from lawyers who saw the appellant episodically, but not from the one person who would be expected to see him on a daily basis and thereby have greater capacity to make observations about him relevant to the criteria in s 311(1).

22. It is also noteworthy that the absence of any evidence from the appellant’s wife was not used by his Honour in any evidentiary way, such as to draw any adverse inference from such evidence not being called, which is consistent with the absence of any burden of proof.

23. It follows that ground 2 must fail.

Grounds 3 and 4

24. Ground 3, supported by ground 4 (albeit not clearly expressed and not separately and properly developed by submissions), takes issue with the reference by the primary judge at [29], reproduced at [18] above, to the evidence of three persons from the appellant’s firm of solicitors, including in particular the solicitor having carriage of the criminal proceedings, Mr Taylor, being “personal opinions of laypersons”. That was an inapposite description, not least because s 311(1)(b) lists as one of the six mandatory considerations for determining whether a person is unfit to plead because their “mental processes are disordered or impaired to the extent that they cannot… give instructions to [their] lawyer”. As Refshauge J observed about that provision in Fisher at [29(12)] “[r]elevant evidence may be available from support persons for the accused or from lawyers who had represented him or her in the past, identifying difficulties in taking instructions, providing advice or acting”, citing Stevens at [33], reproduced above at [20].

25. The affidavit evidence from Mr Taylor, from another solicitor employed by the same firm of solicitors, and from another member of its staff, was directed to difficulties experienced in obtaining instructions from the appellant, among other things. Observations were recorded, rather than opinions per se being expressed. Whether or not that evidence was, on its own, or in combination with other evidence, capable of establishing that the appellant could not give instructions, or indeed as to any of the other criteria in s 311(1), is not to the point on this appeal. What matters is that this evidence was incorrectly understood as being a kind of lay opinion evidence, and potentially not considered properly upon that basis. In fact, it is evidence that is observational in nature, capable of being taken into account as describing the reality of what was taking place, of course subject to any cross-examination or contrary evidence.

26. It is not clear that this evidence was evaluated as it was required to be, along with the rest of the evidence, in relation to the criteria in s 311(1) and in particular in relation to s 311(1)(f). To that extent, the investigation based upon the available evidence was likely to have been incomplete, with at least a real possibility that a different conclusion might have been reached. That demonstrates sufficient error to warrant ground 3, and thus the appeal, succeeding, it not being necessary, or even possible, to decide that a different result was necessarily going to be arrived at had that evidence been considered in the manner required. It was enough that it might realistically have made a difference.

27. In those circumstances it is not necessary to take the additional step of determining ground 4 as to whether the primary judge also failed to take into account appropriately, or at all, the evidence from the appellant’s legal representatives concerning matters relevant to the investigation under s 311. The conclusion as to ground 3 supports to some extent the aspect of ground 4 dealing with failing to take into account appropriately the evidence of the appellant’s legal representatives, but not the notion that this evidence was not taken into account at all as it plainly was evaluated in some way by his Honour, but apparently only as a kind of lay opinion evidence, implicitly a reference to s 78 of the Evidence Act, rather than its true character as observational evidence going directly to the nature and extent of any impairment. Ground 3 better identifies the precise nature of a material error.

Ground 5

29. As to ground 5, there is no substance to the suggestion that the primary judge gave any inappropriate weight to the opinion evidence of Professor Brew. His Honour was fully aware that Professor Brew had not examined the appellant. Ground 5 must fail.

Conclusion

30. As ground 3 has succeeded, the appeal must be allowed. The finding by the primary judge that the appellant was fit to plead must be set aside.

31. It is not appropriate or desirable, as sought by the appellant, for this Court to determine whether or not the presumption that he is fit to plead has been rebutted, not least because a substantial period of time has elapsed since the investigation by the primary judge took place in August and November 2022, culminating in a decision in December 2022. The evidence was arguably incomplete then, and the medical assessments necessarily took place either prior to the hearing before his Honour, or, in the case of Professor Brew, between the two hearing dates. The observational evidence of the appellant’s legal representatives may need updating, as well as that of the medical experts. And consideration may be given to calling the appellant’s wife to give evidence. In those circumstances there is a need for a fresh investigation to take place. It follows that the investigation into the question of whether the defendant is unfit to plead must be remitted to be heard by a judge of the Court.

Orders

32. For the reasons above, the Court makes the following orders: (1) The finding by the primary judge that the appellant was fit to plead be set aside. (2) The investigation into the question of whether the appellant is unfit to plead be remitted to be heard by a judge of the Court.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons of the Court. Associate: Date: 15 June 2023