Berg v Director of Public Prosecutions
[2008] QCA 321
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Berg v Director of Public Prosecutions[2008] QCA 321
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Berg v Director of Public Prosecutions[2008] QCA 321
Berg v Director of Public Prosecutions[2008] QCA 321
SUPREME COURT OF QUEENSLAND
PARTIES: | VINCENT VICTOR BERG |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal from the Mental Health Court |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: |
|
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | McMurdo P, Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the fitness of the appellant for trial was referred to the Mental Health Court for determination – where there was significant delay in the prosecution of the reference, resulting in the matter being adjourned twice – where the material before the Mental Health Court was generally suggestive as to the appellant's fitness for trial – where the appellant did not seek to put any additional material before the Mental Health Court – where the Mental Health Court struck a reference as to the appellant's fitness for trial – whether the striking out of the reference was within the powers of the Mental Health Court as conferred under the Mental Health Act 2000 (Qld) – whether the Mental Health Court erred in exercising its discretion to strike out the reference. Mental Health Act 2000 (Qld), s 257, s 259, s 269, s 270, s 334, s 381, s 383, s 384, s 420 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17, cited CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33, applied DAR v DPP & Anor [2008] QCA 309, applied Wentworth v Graham (2003) 57 NSWLR 741; [2003] NSWCA 229, cited |
COUNSEL: | No appearance by the appellant M J Copley for the respondent |
SOLICITORS: | No appearance by the appellant Director of Public Prosecutions (Queensland) for the respondent |
THE PRESIDENT: Justice Keane will deliver his reasons first.
KEANE JA: On 24 September 2005, the appellant, Mr Vincent Victor Berg, was charged with indecent treatment of a child under 16 years of age. The offence was allegedly committed between 15 September 2000 and 2 October 2000.
On 13 November 2006 the appellant's mental condition was referred to the Mental Health Court, the MHC, as I will refer to it, under s 257 of the Mental Health Act 2000 (Qld), to which I will refer as "the Act." The reference was made not by the appellant, but as was permitted by s 257(1)(a) of the Act by the appellant's then legal representatives.
By virtue of s 259 of the Act, the effect of the reference being made to the MHC was that "proceedings for the offence alleged to have been committed by [the appellant] are suspended until the [MHC] has made a decision on the reference."
By virtue of s 269 and s 270(1) of the Act, because the appellant disputed the facts relating to the charge against him, the MHC's only function on the reference was to decide whether the appellant was fit for trial.
The reference to the MHC came on for hearing on 14 February 2008. On 12 June 2008, a reference by a new set of lawyers for the appellant came on for hearing before the MHC. On each occasion the appellant did not attend the hearing and on each occasion the appellant's then legal representatives sought and were granted leave to withdraw from the proceedings.
On the second occasion, after the appellant's legal representatives had been given leave to withdraw, the respondent invited the MHC to strike out the reference for want of prosecution. The MHC acceded to that request.
The appellant appeals against the decision to strike out the reference to the MHC. I will discuss the arguments advanced in support of the appeal in due course. But first I will set out some more of the detail of the history of the proceedings in the MHC and the reasons given by the MHC for its decision to strike out the appellant's reference.
"The history of proceedings"
The appellant's reference to the MHC was made by the solicitors who represent him in the criminal proceedings, at least initially. It was supported by the report dated 23 October 2006 by Dr Braganza, a psychiatrist, to the effect that the appellant was suffering from severe psychotic depression and so was unfit for trial.
Reports on the appellant's condition were commissioned by the MHC from psychiatrists Dr Frank Varghese and Dr Gregory Weppner. Those psychiatrists provided reports dated 19 March 2007 and 10 October 2007. Neither report supported the proposition that the appellant was unfit for trial. Dr Weppner had referred the appellant to a neuropsychologist, Dr Lucille Douglas, for assessment. Dr Douglas opined that the appellant's responses to her assessment were "an unsophisticated attempt to exaggerate and magnify his claimed level of dysfunction."
The MHC set the appellant's reference down for hearing first on 14 February 2008.
Dr Varghese assessed the appellant again on 6 February 2008 and provided a further report dated 11 February 2008. In that report, Dr Varghese was inclined, on balance, to diagnose the appellant as suffering from severe psychotic depression. Dr Varghese recommended that the appellant needed immediate admission to a psychiatric hospital for treatment and suggested electro-convulsive therapy. Dr Varghese said that it was "preferable to err on the side of diagnosing serious mental illness as against ignoring a treatable mental illness and concluding that the presentation is feigned."
On 13 February 2008, video surveillance of the appellant showed the appellant walking to the beach and swimming, later walking one and a half kilometres to a library, going to a supermarket and shopping and paying for purchases with a credit card.
On 14 February 2008, the date for the hearing of the reference, the appellant was represented by Mr Farmer of Legal Aid Queensland. A letter signed by the appellant was provided to the MHC on the appellant's behalf. In this letter the appellant said that he was not well enough to attend Court and that he would find it unbearable to be in Court.
At the hearing on 14 February 2008, the video surveillance tapes were shown to the MHC. Both Dr Varghese and Dr Weppner said that what the tapes depicted was inconsistent with the proposition that the appellant was suffering from severe psychotic depression. Dr Varghese retracted his opinion of 11 February 2008. Following the playing of the video surveillance tapes, Mr Farmer sought and was granted leave to withdraw as the appellant's representative in the proceedings before the MHC.
A further reference on behalf of the appellant came on for hearing again before the MHC on 12 February 2008. On this occasion Mr Reid of Counsel, instructed by Mr Murphy, a solicitor, appeared for the appellant. The appellant was again not present at the hearing. After a brief adjournment to enable Mr Reid and Mr Murphy to speak to the appellant by telephone, Mr Reid informed the MHC that the appellant had withdrawn his instructions to Mr Murphy; and Mr Reid and Mr Murphy were given permission to withdraw.
It was then that the respondent sought to have the appellant's reference terminated for want of prosecution.
"The decision of the MHC"
On 12 June 2008 the MHC gave the following decision:
"I am inclined to take the approach that you have indicated in your submissions, Mr Mackenzie. The Court has made every endeavour to thoroughly investigate the issue of unfitness for trial.
This is the second occasion upon which solicitors for the defendant have had to withdraw. The reference came before the Court as a reference made on behalf of the defendant's legal representatives. The defendant disputes the charges and accordingly this Court can make no finding in relation to the defendant's state of mind at the relevant time. The only issue that the Court can determine is that of fitness for trial. The material before the Court is largely to the effect that the defendant is fit for trial.
...
However, it is not all that way. The defendant has not sought to put any additional material before the Court. The defendant has not placed his legal representatives in a position where they can assist the Court with submissions. As I say, it is a second occasion that this has occurred. I am concerned that there is undue delay in pursuing the reference. There are issues that have been raised in the material concerning the defendant feigning his condition. In the circumstances I consider that it is appropriate to strike out the reference and I so order."
"The appeal to this Court"
By virtue of s 334 of the Act, an appeal lies to this Court from the decision of the MHC. The appeal to this Court from the MHC is an appeal in the strict sense, that is to say that in order to succeed an appellant must show an error on the part of the MHC. See DAR v DPP & Anor [2008] QCA 309. It is not sufficient that this Court might have been disposed to decide the questions determined by the MHC differently from the MHC.
The appellant's principal contention is the MHC erred in proceeding on the footing that it was within its power to strike out his reference. The appellant argues that under the relevant terms of the Act, the MHC is not invested with such a power. In this regard the appellant points to Sections 383 and 384 of the Act. These provisions are in the following terms.
"383, Jurisdiction.
(1)The Mental Health Court has the following jurisdiction -
(a)deciding appeals against decisions of the Tribunal;
(b)deciding references of the mental condition of persons;
(c)investigating the detention of patients in authorised mental health services.
(2)In exercising its discretion the Court -
(a)must inquire into the matter before it; and
(b)may inform itself with any matter relating to the inquiry in any way it considers appropriate.
(3)In a proceeding the court may give directions about the hearing of a matter.
(4)The court's jurisdiction is not limited, by implication, by a provision of this or another Act.
384. Powers.
(1)The Mental Health Court may do all things necessary or convenient to be done for, or in relation to, exercising its jurisdiction.
(2)Without limiting subsection (1) the Court has the powers conferred on it by this Act."
The appellant argues that the terms in which the jurisdiction and powers of the MHC are conferred by the Act require the MHC to exercise its jurisdiction by deciding a reference and necessarily do not permit it to decide not to proceed to a decision of the reference. The appellant's argument fails to appreciate that the MHC is empowered to control the matter in which its jurisdiction is exercised and that the MHC's power over its own processes includes the power to terminate a reference where the MHC is unable to come to a substantive decision.
It should be noted that pursuant to s 381(1) of the Act, the MHC is established as a superior court of record. Further, s 420 of the Act provides as follows:-
"420. Directions about practice.
(1)Subject to this Act and the court rules, the practice and procedure of the Mental Health Court are as directed by the president of the court.
(2)If this Act or the Rules do not provide or sufficiently provide for a particular matter, an application for directions may be made to the president of the court."
Quite apart from the express power as to matters of procedure conferred on the MHC by s 420 of the Act, the MHC has inherent power to control its own processes. See Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 320; Wentworth v Graham (2003) 57 NSWLR 741 and 742. In CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, in a joint judgment, confirmed that a Court possesses an inherent or implied power to dismiss proceedings in order to protect its own processes and to prevent those processes being used to cause injustice.
There can be no doubt that where a party to a proceeding in a Court persistently fails to prosecute that proceeding, the Court has a discretion to terminate the proceeding in order to prevent the pointless waste of the Court's time and the public resources which sustain the Court. The position is even stronger where the prosecution of a criminal charge is held in suspense by the pendency of proceedings in the Court.
That is the case here by reason of s 259 of the Act.
It is necessary to bear in mind the strong public interest in bringing charges of criminal misconduct to trial. For the MHC to allow the appellant to delay the prosecution of the charge pending against him, by failing to prosecute the reference to the MHC, would be to allow the MHC's processes to become an instrument of injustice. There can be no doubt that the MHC has the power to prevent that result.
Once it is accepted that the MHC has the power to terminate a reference which has not been pursued with diligence, the question which falls to be addressed is whether the MHC's discretion miscarried in this case. The first point to be made here is that the MHC considered that it had "made every endeavour to thoroughly investigate the issue of unfitness for trial" but it had not been able to decide the reference.
That conclusion was, in my respectful opinion, sufficient to sustain the order which the MHC made as a sound exercise of the MHC's power to prevent its processes being used as an instrument of injustice.
That would usually be so in the absence of evidence justifying a conclusion that the appellant bore no responsibility for the delay which has occurred. If for whatever reason the MHC is unable to decide the reference, then the public interest in the determination of a criminal charge against the person the subject of the reference is, in the absence of countervailing considerations, a sufficient reason for terminating the reference for the MHC. Whether the MHC's inability to determine the reference can be shown to be due to the default of the appellant is a consideration relevant to, but not an essential precondition of, the exercise of the MHC's discretion to terminate the reference. If there is no evidence to support the view that the reference has been prosecuted with reasonable diligence, then the concern that the MHC's processes should not be used to cause injustice will usually be sufficient to warrant bringing those processes to an end.
One argument advanced by the appellant in support of the argument that the MHC erred in the exercise of its discretion to terminate the reference is that the MHC erred in proceeding on the footing that "the appellant has not sought to put any additional material before the court." The appellant points to correspondence between the appellant and the MHC after 14 February and prior to 12 June 2008. But it is clear that what the MHC was speaking about in the passage to which reference has been made was the absence of further expert opinion such as, for example, an updated report by Dr Braganza which might have sought to counter the effect of the video surveillance tapes. It was plainly correct for the MHC to observe that no such material was put before it on the appellant's behalf.
Another argument advanced by the appellant is that the MHC failed to appreciate that there is expert opinion which supports the view that he is indeed unfit for trial. But that argument fails to recognise that the MHC expressly recognised that the evidence as to the appellant's fitness for trial was not all one way.
A third argument advanced by the appellant in relation to the manner in which the MHC's discretion was exercised is that it was incorrect of the MHC to act on the footing that the appellant had withdrawn the instructions of his legal representatives on 12 June 2008, it being said by the appellant that he had done no such thing. But the appellant has not sought to adduce evidence as to what passed between the appellant and his lawyers on 12 June. This Court is, therefore, not in a position to conclude that what the MHC was told by the appellant's then representatives was incorrect. The question for this Court is whether the MHC erred in the exercise of its discretion. This Court is simply unable to say that the MHC erred in acting on the footing that what she was told by the appellant's then legal representatives was accurate.
A fourth point made on behalf of the appellant is that the MHC erred in acting upon a concern that "there are issues that have been raised in the material concerning the [appellant] feigning his condition." The appellant contests the suggestion that his condition is feigned and argues that the MHC should not have acted upon the suggestion. But the MHC did not act on the basis that it had in truth concluded that the appellant was indeed feigning his condition. The MHC did no more than advert to the issue which had been raised in this regard.
There was nothing inappropriate or unreasonable in the MHC's willingness to treat the concern which had obviously arisen in this regard as a further consideration in the balance favouring the exercise of the MHC's discretion in favour of terminating the reference. A doubt about the bona fides of a reference does not need to be resolved against the person the subject of a reference to be relevant in a decision to terminate the reference. Any Court will be more reluctant to terminate summarily a limping proceeding brought in good faith than one where the proceeding is suggestive of bad faith on the part of the party who has brought the proceeding.
It is clear in this case that the MHC did not treat its concern as to the appellant's bona fides as the sole ground for bringing the reference to an end, rather its consideration was treated as a factor which, together with other factors, favoured the determination of the reference.
When one adds this consideration to a consideration of the delays attending the resolution of the reference, the failure, to put it neutrally, on the appellant's side of the record to progress the resolution of the reference, and the public interest in the termination of the suspension of the (already long delay) criminal proceedings pending against the appellant, there was a compelling case for the exercise of the MHC's discretion to terminate this reference.
I note that the appellant does not raise any complaint that the respondent's application to terminate the reference for want of prosecution was not made on notice to the appellant. It may be that the absence of complaint suggests that the appellant appreciated that the delay, to put it neutrally, in the prosecution of the reference, could well lead to its summary termination on 12 June 2008 without further reference to him. But whether or not the appellant was actually of that state of mind, it is, I think, clear that he could not have had any legitimate expectation that his failure to prosecute his reference would not lead to its summary dismissal by the MHC. Where a party does not appear in a Court to support an application to the Court, that party can have no expectation that the application will not be treated as lapsing for want of support or it being dismissed on that footing.
Further, there can be no suggestion that it was necessary to inform the appellant of the basis upon which the respondent's application would be made: the basis for the respondent's application was the non-pursuit of a reference by the appellant or on his behalf.
In conclusion, I consider that no error on the part of the MHC has been demonstrated. In my opinion, the appeal should be dismissed.
THE PRESIDENT: I agree.
HOLMES JA: I agree.
THE PRESIDENT: The order is the appeal is dismissed and I order that a transcript be prepared of today's proceedings.