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R v Sitters

 

[2018] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sitters [2018] QCA 35

PARTIES:

R
v
SITTERS, Alfred
(appellant)

FILE NO/S:

CA No 15 of 2018

DC No 90 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg – Date of Conviction: 11 October 2017 (Everson DCJ)

DELIVERED ON:

Date of Orders: 8 March 2018

Date of Publication of Reasons: 14 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2018

JUDGES:

Morrison and Philippides JJA and Brown J

ORDERS:

Date of Orders: 8 March 2018

  1. Application for leave to adduce new evidence granted.
  2. Appeal allowed.
  3. Convictions on counts 1, 2 and 3 set aside.
  4. New trials on counts 1, 2 and 3 ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – NEW TRIAL – PARTICULAR GROUNDS – FURTHER EVIDENCE – where the appellant was convicted after trial of one count of rape and two counts of indecent assault – where after trial concerns were raised about the cognitive ability of the appellant – where sentencing proceedings were adjourned for the purpose of obtaining a pre-sentence report addressing those concerns – where the parties agree that the expert evidence obtained demonstrates that the appellant may not have been fit to plead and stand trial – where it is agreed that a real and substantial question exists about the appellant’s fitness at the time of trial – whether as a result a miscarriage of justice occurred

Criminal Code (Qld), s 613

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29, applied

Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68, cited R v Presser [1958] VR 45; [1958] VicRp 9, followed R v Spina [2012] QCA 179, cited

COUNSEL:

C Morgan for the appellant

S Dennis on behalf of M Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  On 10 October 2017, after a two day trial, the appellant was convicted of one count of rape and two counts of indecent assault.  The following day the sentencing proceedings commenced.  For reasons which do not presently matter, concerns were raised about the cognitive ability of the appellant and the absence of any report providing information about his mental state.  The sentence proceedings were adjourned for the purpose of obtaining a pre-sentence report addressing both the cognitive and physical capacity of the appellant.
  2. The appellant was granted an extension of time on 14 February 2018 to file the Notice of Appeal.  He was also remanded in custody.  As will become apparent there is material which suggests he may be at risk in jail.
  3. Various reports have now been obtained and the parties agree that the expert evidence now demonstrates that the appellant may not have been fit to plead and stand trial.  They therefore agree that there is a real and substantial question to be considered about the appellant’s fitness at the time of trial, as a result of which a miscarriage of justice has occurred.
  4. As a consequence, on 8 March 2018 orders were made allowing the appeal, setting aside the verdicts and ordering a retrial.  These reasons explain the basis for those orders.
  5. The appellant was born on 26 September 1984, and was thus 31 at the time of the offences, and 33 at trial.  He was educated only to grade two or three standard, and is illiterate and unable to work.
  6. Three reports have been obtained concerning the question of the appellant’s mental state and his fitness to plead and stand trial.  They are from:
    1. Dr Brand, Psychiatrist, 30 October 2017;
    2. Ms Wegner, Psychologist, 2 December 2017; and
    3. Dr Keane, Clinical Neuropsychologist, 13 February 2018.
  7. None of those reports can be said to amount to “fresh evidence”.  However, in the circumstances, including that the respondent does not object to their reception, they should be received by this Court.[1]
  8. Dr Brand’s report describes the appellant as having a “mild to moderate intellectual disability”.  He has resided with his elderly mother who is his main caregiver, and requires help with all activities of daily living, including hygiene, cooking and transport.  He has been a long term recipient of a disability support pension.
  9. Dr Brand conducted an interview for the purpose of making an assessment of the appellant, in the course of which he displayed: (i) a limited understanding of what information he might provide during the examination; (ii) a limited capacity to give consent to the interview; (iii) limited understanding of, or memory about, the court proceedings; (iv) an inability to understand the plea he entered, even in simple or uncomplicated terms; and (v) an inability to challenge a juror, and lack of understanding as to the concept of giving evidence.
  10. Dr Brand considered he was incapable of understanding the moral wrongfulness of his acts, and he was unable to provide appropriate answers even to basic capacity testing questions.
  11. The conclusion reached by Dr Brand was that the appellant was “significantly cognitively comprised”, that he had some insight into his condition but had “impaired judgment”.  Dr Brand considered he would remain “very vulnerable to exploitation in an adult male custodial environment”.
  12. Dr Brand concluded that the appellant would not fulfil criteria for major mental illness, but his presentation was in keeping with “mild to moderate intellectual disability leading to complex behavioural and management difficulties”.  Dr Brand’s conclusion was that the appellant was unfit to stand trial as a result of his intellectual disability.
  13. Ms Wegner carried out a series of tests for the purpose of making a cognitive assessment.  A summary of the appellant’s scores on the relevant tests is:
    1. extremely low on the Verbal Comprehension Index, designed to reflect the ability to express oneself and understand written and spoken language;
    2. low/average on the Perceptual Reasoning Index, designed to assess the ability to perform visual and practical tasks;
    3. extremely low on the Working Memory Index, designed to reflect the ability to listen to instructions and retain and use information; and
    4. extremely low on the Processing Speed Index, designed to assess skills including the ability to copy visual images with relative speed, to scan and evaluate visual material quickly.
  14. The full-scale intelligence quotient as measured by Ms Wegner was that the appellant’s rank was 1, which meant that he ranked as well as or better than one per cent of people his age.  Ms Wegner considered he fell within the “mild intellectually disabled” range of intellectual ability.  She also considered that he displayed many Autism Spectrum Disorder traits, being lack of affect, no social competencies, lack of eye contact and a tongue clicking mannerism while concentrating.
  15. Dr Keane examined the appellant for the purposes of a neuropsychological report.  Her testing revealed assessments very similar to those of Ms Wegner.  Dr Keane found that on verbal reasoning tasks the appellant’s performance fell in the extremely low range, and below 99.8 per cent of the population.  His memory functioning was well below average, commensurate with his verbal functioning.  Dr Keane agreed with Dr Brand that the appellant “is unfit for trial as a result of his intellectual disability”, and that he suffers cognitive impairment.  She considered his full IQ scale score was consistent with mental retardation.
  16. Dr Keane considered the various factors for fitness for trial, described in R v Presser,[2] and concluded that the appellant was not fit for trial by reason of his intellectual disability.  Specifically she opined that the appellant was not able to follow the course of the proceedings so as to understand what was going on in a general sense, did not have the ability to understand the general effect of the evidence against him, was not able to give instructions properly, and was unable to understand the nature of the proceedings even in a general fashion.  Given his extremely low intellectual ability, Dr Keane considered he may be at risk of making poor choices when deciding how to run his defence.
  17. Dr Keane expressed concerns about the appellant’s ongoing management.  She, along with Dr Brand, considered that the appellant should be referred to the Queensland Civil and Administrative Tribunal for guardianship and financial matters, and expressed this view:

“[the appellant] has limited understanding of what has occurred and will return to his former habits of wandering the streets lacking the understanding that he may be at risk from others.  I think that he requires support and protection.  I do not think that [the appellant] has the capacity to understand bail requirements and would be at risk of breaching bail if he does not receive intensive support.”

  1. In R v Presser[3] it was said that an accused person must have at least the following capacities before he can be tried without unfairness or injustice:

“He needs to understand generally the nature of the proceeding … needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense [and] to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge.”[4]

  1. As the respondent very properly concedes, the expert evidence demonstrates that the appellant may not have been fit to plead and stand trial, and that a miscarriage of justice has been established because there is a real and substantial question to be considered about the appellant’s fitness.  The respondent notes that the procedure in s 613 of the Criminal Code 1899 (Qld), which sets out the procedure to be followed when there is any uncertainty surrounding an accused person’s fitness for trial, was not followed in this case.  The issue of the appellant’s fitness for trial was not raised by either party at any point until the commencement of the sentencing proceedings.
  2. In Eastman v The Queen[5], Hayne J had the following to say:

[319] The Full Court was bound to set aside the conviction if there was a miscarriage of justice.  And there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial.  That is, to adopt the terms used earlier, there is a miscarriage of justice if there is a real and substantial question to be considered about the accused’s fitness.  The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this Court and in intermediate appellate courts in which questions of fitness have been raised on appeal.  There the question for the appellate court has been treated as being whether there was a question as to the accused’s fitness, not whether the appellate court was persuaded that the accused was not fit.  Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside.

[320] A conclusion by a Court of Criminal Appeal that an accused may not have been fit to plead or stand trial requires the court to quash the conviction.  There has been a trial where the accused may not have been fit and that is a miscarriage of justice.  But the further question which then arises is, what consequential order should be made?  If the appellate court were affirmatively persuaded that the material before it demonstrated that the accused was not fit, not only would the conviction be set aside, the appellate court would make such order as the trial judge should have made on such a finding.  If, however, as would ordinarily be the case, the appellate court could not reach that affirmative conclusion, it would set aside the conviction and order a retrial, thus allowing the statutorily prescribed tribunal to determine the issue of fitness.”[6]

  1. Those circumstances apply here.
  2. For these reasons it was appropriate for the Crown to agree to the orders which were made.  What steps now taken are a matter for the parties and will, no doubt, be informed by the opinions of Dr Keane and Dr Brand.
  3. PHILIPPIDES JA:  The reasons of Morrison JA reflect the basis for my joining in the orders made on 8 March 2018.
  4. BROWN J:  I have read the reasons for judgment of Morrison JA and agree with his Honour.

Footnotes

[1]See Mallard v The Queen (2005) 224 CLR 125 at [10]–[13]; R v Spina [2012] QCA 179 at [34].

[2][1958] VR 45 at 48.

[3][1958] VR 45 at 48.

[4]Applied in Kesavarajah v The Queen (1994) 181 CLR 230 at 245, and R v Cain [2010] QCA 373 at [13], and R v Sridharan [2017] QCA 160 at [17].

[5](2000) 203 CLR 1; [2000] HCA 29.

[6]Eastman v The Queen at [319]–[320]; emphasis and internal citations omitted.

Editorial Notes

  • Published Case Name:

    R v Sitters

  • Shortened Case Name:

    R v Sitters

  • MNC:

    [2018] QCA 35

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Brown J

  • Date:

    14 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC90/16 (No Citation) 11 Oct 2017 Date of Conviction (Everson DCJ).
Appeal Determined (QCA) [2018] QCA 35 14 Mar 2018 Appeal against conviction allowed: Morrison and Philippides JJA and Brown J.

Appeal Status

{solid} Appeal Determined (QCA)