SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Victors (a pseudonym) (No 2)
Citation:	[2022] ACTSC 328
Hearing Date:	24 August 2022, 29 November 2022
Decision Date:	1 December 2022
Before:	Elkaim J
Decision:	I find that Mr Victors is fit to plead
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to plead – where presumption is that the respondent is fit to plead – where there is conflicting medical expert evidence – where medical experts disagree on degree of cognitive impairment – respondent found fit to plead
Legislation Cited:	Crimes Act 1900 (ACT) ss 311, 312, 315A
Parties:	Director of Public Prosecutions Dan Victors (a pseudonym) ( Respondent)
Representation:	Counsel A Chatterton; M Thomas ( ACT Director of Public Prosecutions) K Musgrove; S Robinson ( Respondent)
	Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Respondent)
File Number:	SCC 21 of 2021

Elkaim J:

1. The applicant is the Director of Public Prosecutions (the prosecution). The respondent is Mr Victors. This name is a pseudonym to protect the identity of two complainants.

2. The two complainants are the respondent’s daughters. They allege that many years ago (in the 1980s) they were sexually assaulted by their father. An indictment has been filed which contains 15 counts alleging sexual assaults.

3. The respondent was born in 1940. He is now 82 years of age.

4. On 2 March 2022 Norrish AJ made the following orders:

Pursuant to s 314(3) the Court is satisfied that there is a real and substantial question about the defendant’s fitness to plead and the Court reserves the question of his fitness to plead for investigation pursuant to Division 13.2 of the Crimes Act 1900 (ACT).
That the accused be examined by a psychiatrist or health practitioner nominated by the Crown as soon as practicable pursuant to s 315(2)(c) of the Crimes Act 1900 (ACT).
The matter be listed before the Registrar for directions at 9am on Thursday 10 March 2022.

5. The hearing before me is to decide if the respondent is fit to plead. The obligation upon the Court in investigating the respondent’s fitness to plead is set out in s 315A of the Crimes Act 1900 (ACT):

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.

6. Sections 311 and 312 are also relevant:

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

(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.

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.

8. The prosecution relies on two affidavits of Ms Julia Epstein, affirmed on 6 May 2022 and 15 July 2022 respectively. Ms Epstein is a legal practitioner employed by the prosecution. There is also a recent affidavit of Ms Heidi Andriunas affirmed on 24 November 2022

9. The respondent relies on an affidavit of his solicitor, Mr Thomas Taylor, affirmed on 13 July 2022. Mr Taylor recounts experiences of the respondent which occurred in the course of his representation. The experiences extend to observations made at meetings with another solicitor, Ms Beckedahl, and a then barrister, Mr Archer.

10. There is an affidavit from Ms Beckedahl, affirmed on 13 July 2022, and an affidavit from Ms Kathy Reis, affirmed on 13 July 2022. Ms Reis is the office manager in Mr Taylor’s legal firm.

11. Mr Taylor also annexes two reports from a geriatrician and general physician, Dr Mary Ann Kulh.

12. The prosecution relies on two reports from Dr Susan Pulman, a forensic psychologist and clinical neuropsychologist. Dr Kulh says the respondent is not fit to plead. Dr Pulman says he is fit to plead.

13. Both of the medical experts gave oral evidence.

14. In her first report, dated 18 August 2021, Dr Kulh commences with details of the respondent’s medical history:

(a) He had an ischaemic stroke in 2014 which was evident in an MRI brain scan taken on 10 June 2021. Dr Kulh says he “appears to have made full recovery and is now able to walk without requiring aids”.

(b) He was diagnosed with ischaemic heart disease in 2006 following an acute myocardial infarction (a heart attack). A coronary stent was inserted.

(d) He suffers from obstructive sleep apnoea which is untreated because he cannot tolerate a CPAP machine.

(e) He has gastro-intestinal bleeds and an ulcerative oesophagitis. He had a major gastrointestinal haemorrhage in about 2003. He takes reflux medication but symptoms still exist.

(f) The respondent has cervical spondyloarthropathy (arthritis) giving him neck pain, for which he takes paracetamol.

(g) He has undergone a number of urethral reconstructions (to combat urinary blockages).

15. In respect of cognitive function Dr Kulh says there has been memory loss for at least two years. Cognitive examinations have produced a test score suggesting cognitive impairment. More specifically, the tests that have been administered are known as Addenbrooke’s cognitive examinations. They are specifically designed to identify cognitive impairment, such Alzheimer’s disease.

16. The brain scan conducted on 10 June 2021 showed “moderate cerebral atrophy and gliosis in the right Corona radiata”. Dr Kulh says that “the degree of atrophy is more than would be expected for his age of 80 years”.

17. Dr Kulh concluded that:

Overall, the cognitive findings on cognitive assessment and MRI brain are consistent with a mixed Alzheimer’s and vascular dementia.

18. Dr Kulh addressed a number of questions that had been put to her by Mr Taylor. In summary she answered as follows:

(a) The respondent has a number of chronic medical conditions, including cognitive impairment consequent upon his stroke.

(b) The respondent’s sleep apnoea “can cause daytime somnolence which can lead to difficulty with concentration and attention”.

(c) In respect of brain disease, the respondent has Alzheimer’s and vascular dementia “which affects his memory recall, language to a lesser degree and frontal lobe functions including insight and judgment”. There is likely to be a deterioration of cognitive function over the next 12 months.

(d) The respondent’s life expectancy cannot be estimated but is likely to be below average for an 80-year-old male. I note the medium life expectancy for an 82-year-old male in Australia is 8.15 years (Furzer Crestani Assessment Handbook 2022, page 16).

19. In answer to a specific opinion about fitness to plead Dr Kulh said:

(a) The respondent’s “comprehension is intact and that he does understand the nature of the charge”.

(b) As a result of his dementia the respondent “would have difficulty exercising the right to challenge jurors or the jury”.

(d) “His impaired frontal lobe function can be associated with loss of logical reasoning and ability to draw conclusions from facts provided”. This means he might have “some difficulty understanding the substantial effect of evidence given in support of the prosecution”.

(e) The respondent’s dementia might result in difficulty providing instructions to lawyers during the proceedings.

20. Dr Kulh concludes in this way:

(The respondent) is an 80-year-old gentleman with Alzheimer’s and vascular dementia. Due to memory impairment, he has difficulty recalling past events reflected in difficulty recalling his own medical history. This memory impairment, in conjunction with his frontal lobe impairments, would make him a challenging defendant in court proceedings.

21. Notably, in her report, Dr Kulh does not specifically say the respondent is unfit to plead.

22. In her second report, Dr Kulh more specifically addresses the question of fitness to plead. She refers to her earlier report, and says that for the reasons expressed in that report she is “of the opinion that he is unfit to plead”.

23. Mr Taylor’s affidavit refers to lay observations of himself and other members of the staff of his firm. They record difficulties communicating with the respondent, that he often appeared confused and there were difficulties taking instructions. On the other hand the respondent has stated, in terms, that the allegations are “not true”.

24. He has also provided, as can be seen from an email the respondent wrote in April 2020 (Exhibit 1), that he has an explanation which tackles the allegations against him. Effectively he says that he was endeavouring to explain sex education to his daughters, he thought “he was doing the right thing for my daughters”.

25. Mr Taylor says that:

I do not believe the accused is able to properly understand the discrete and numerous legal ingredients, even when I have tried to explain this in simple non-legal terms.

26. Mr Taylor thinks a trial will take up to three weeks during which time he does not think the respondent would be able to concentrate or “focus his attention sufficiently to follow the trial and I do not believe this would be ameliorated with breaks”.

27. Ms Beckedahl relays her experience with the respondent. She found it difficult to obtain instructions and thought that he was frequently confused. She refers to an “erratic train of thoughts”.

28. Ms Reis found the respondent to be confusing. On one occasion he did not seem to recognise Mr Taylor. She says that she was “uncertain about his mental state” following a number of interactions with him.

29. With respect, I did not find the observations of Mr Taylor 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.

30. There are two reports from Dr Pulman, dated 31 January 2022 and 14 July 2022 respectively. Dr Pulman had not seen the respondent before producing the report, but did see him before the second report was written.

31. Dr Pulman’s initial report is essentially a comment on Dr Kulh’s reports. Dr Pulman agrees that the cognitive examination tests reveal a cognitive impairment, but she says this impairment is mild. She says the results cannot found a “formal or definitive diagnosis of dementia”. She continues that “individuals can be experiencing the prodromal phase of dementia yet still have the capacity to stand trial should proceedings not be delayed”.

32. Dr Pulman suggested further cognitive assessment. This was conducted by Dr Pulman when she saw the respondent on 22 June 2022. She obtained similar cognitive testing results to those that had previously been recorded. This indicated that there was no “deterioration in (the respondent’s) cognitions suggestive of a dementing illness”.

33. A Mini Mental Status Examination was “inconsistent with a diagnosis of dementia”. Dr Pulman concluded that the respondent “has the cognitive capacity to stand trial”.

34. Dr Kulh gave oral evidence which considerably expanded upon her reports. Most important was her evidence about a PET–CT scan which had been conducted on 13 July 2022. For some reason this scan was not conveyed to Mr Taylor until the day before the hearing and was only provided to the prosecution during the oral evidence of the doctor.

35. The result was that the matter had to be adjourned in order to allow the Crown to obtain instructions on the scan. Although Dr Pulman was available to give evidence on the day, she is not a geriatrician and would not have been in a position to comment on the scan results.

36. According to Dr Kulh the results of the scan confirmed her diagnosis of dementia, but define the dementia to be vascular as opposed to Alzheimer’s.

37. Dr Kulh is an experienced geriatrician, a specialty which she described as applicable to illness and disorders in persons over the age of 65. She compared her specialty with that of a neuropsychologist whose main concern was cognitive impairment.

38. Dr Kulh said that she had specifically assessed the respondent for dementia. This involved the following steps:

1. Taking a history of any impairment, for example loss of memory.

2. Taking a collaborative history from persons such as a spouse or carer.

3. Taking a medical history.

4. Taking a social history. This might include details of where the patient lives and what support is provided.

5. Conducting a physical and neurological examination.

6. Conducting a bed side screen of cognitive function.

7. Viewing any imagery that had been produced.

39. Dr Kulh said that having conducted the above assessment, and taking into account the results of the MRI, CT and PET scans she was of the view that the respondent was suffering from vascular dementia. In turn, she believed that he was not fit to plead.

40. Dr Kulh pointed out that vascular dementia was more likely to affect the frontal lobe of the brain which controlled functions such as judgment, reasoning and multi-tasking. These are functions which would be vital in giving instructions in the course of a criminal trial.

41. A matter that I raised with the doctor was the fact that the respondent is apparently still driving, presumably with the imprimatur of his general practitioner. I thought it somewhat inconsistent that he would be given the ‘all clear’ to drive, while suffering from the asserted effects of his dementia, to the extent that he was unfit to plead.

42. Dr Kulh said that a “reasonable general practitioner” would not have approved him driving.

43. Dr Kulh thought that there had been a decline in cognitive function since August of last year which she would expect to continue into the future.

44. Dr Kulh wrote a letter to Mr Taylor on 3 August 2022 (Exhibit A) in which she recorded some points of history that she had obtained from the respondent and his wife. She was told, by Mrs Victors, that since a myocardial infarction in March of this year, the respondent had become more confused. He had become paranoid about an impending world war. He was hoarding food and buying wood to block out radiation in case of a nuclear explosion. I asked Dr Kulh why this reaction might not have been a response to the crisis in the Ukraine. She said that it was the measures taken by the respondent that indicated his paranoia.

45. Dr Kulh said respondent used a dosette box for his medications. Unlike a Webster Pack, this device is filled by a person other than the pharmacist. I wondered who was filling the box. If it was being done by the respondent, this would be an indication of a degree of cognitive function.

46. When the matter resumed on 29 November 2022, Dr Kulh gave further evidence. The issue of driving was taken up with her again and, to her credit, she seemed to express a degree of embarrassment that no steps had been taken to cancel the respondent’s licence. The doctor did say that different areas of the brain were involved with driving but nevertheless she acknowledged some inconsistency between his incapacity to plead to the charges while he was still freely driving.

47. Dr Kuhl made other concessions, essentially to the effect that the respondent’s ability to plead and understand the trial could be ameliorated by frequent breaks in the hearing and the opportunity for his lawyers to explain the ongoing proceedings to him. Dr Kuhl did not however resile from her view that the respondent was unfit to plead.

48. After Dr Kuhl, Dr Pulman was cross-examined. She did not make any concessions. She said the fact that the respondent did not recognise his lawyer on a particular occasion was not an unusual feature. It could happen to anyone.

49. Dr Pulman did say there was no evidence of any malingering in the testing that the respondent undertook. In fact, according to her, he did quite well in the testing. She did say there was some evidence of mild cognitive impairment but it was not inconsistent with the respondent’s age.

50. The real difficulty for the respondent’s contentions come with the report of Prof Brew, which is annexed to the affidavit of Ms Heidi Andriunas. He is a highly qualified neurologist who has specialised for many years in cognitive function. He examined the PET–CT scan and concluded that it did not show dementia at all, that is neither Alzheimer’s nor vascular dementia. Prof Brewer was cross-examined. He was not however challenged on this opinion. This places a significant dent in the opinion of Dr Kuhl.

51. Prof Brew stated in the clearest of terms:

I do consider that Mr (Victors) has the mental capacity to stand trial, understand the nature of the charge, enter a plea to the charge and exercise the right to challenge jurors or the jury, understand that the preceding is an enquiry about whether he committed the offence, follow the course of the preceding, understand the substantial effect of any evidence that may be given in support of the prosecution, and give instruction to his lawyer.

52. Prof Brew did concede that there was some cognitive impairment, but he said it was not to an extent that would impact upon the capacity to plead, as defined in s 311. In relation to the respondent’s belief in a forthcoming world war (including hoarding and purchasing timber to protect against radiation) Prof Brew accepted this could be an indication of cognitive impairment but said that, standing alone, it did not establish impairment.

53. Prof Brew, because of his acceptance of a degree of cognitive impairment, agreed that shorter hearing periods and opportunities for explanation would be beneficial. He said that the minor impairment and the assorted other comorbidities could combine to affect the respondent’s mental and physical stamina. But they did not go so far as to influence his capacity to plead.

54. Obviously, the manner in which the case is heard will be determined by the trial judge.

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.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: