R v Mathews[2013] QCA 203

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Mullins J and the orders proposed by her Honour.

[2] GOTTERSON JA:  I agree with the orders proposed by Mullins J and with the reasons given by her Honour.

[3] MULLINS J:  Mr Mathews is charged with four offences contrary to s 474.17 of the Criminal Code (Cth) of using a carriage service to menace, harass or cause offence.  A committal proceeding in respect of the charges commenced in the Brisbane Magistrates Court, but was adjourned after the Magistrate referred the question of Mr Mathews’ fitness to be tried for the offences to the District Court pursuant to s 20B of the Crimes Act 1914 (Cth).

[4] The fitness for trial proceeding had been listed by his Honour Judge O'Brien on 19 October 2012 for trial in the District Court on 12 November 2012.  The matter was listed for review before his Honour Judge Rafter on 2 November 2012 who left the matter listed for trial in the week commencing 12 November 2012.  The application in proceeding CA No 296 of 2012 is for leave to appeal against Judge Rafter’s failure to consider Mr Mathews’ application on 2 November 2012 that the court refuse to hear Mr Hunter of counsel from the Commonwealth Director of Public Prosecutions (CDPP) until such time as Mr Mathews’ human rights as recognised in the Convention on the Rights of Persons with Disabilities (CRPD) were recognised by Mr Hunter and the CDPP as representatives of the Executive Government of the Commonwealth of Australia.

[5] The trial of the question of whether Mr Mathews was fit to be tried was heard before his Honour Judge Griffin (the trial judge) and a jury on 19 November 2012.  The jury returned a verdict that Mr Mathews was fit for trial.  Proceeding CA No 335 of 2012 is Mr Mathews’ application for leave to appeal against that verdict.

[6] The court has taken into account all material filed and submissions made by Mr Mathews in both CA No 296 of 2012 and CA No 335 of 2012 for each of those applications.

CA No 296 of 2012

[7] The nature of the proceeding before Judge Rafter on 2 November 2012 was a trial review of the trial of the issue of Mr Mathews’ fitness to be tried.  There was no appearance in person or by telephone by Mr Mathews before Judge Rafter, but he had made a written submission that was before Judge Rafter at the time he conducted the review.  Mr Hunter referred Judge Rafter to the outcome of four applications made by Mr Mathews to the Court of Appeal in connection with the same District Court proceeding relating to his fitness for trial where each of the applications had been refused on 2 November 2012:  R v Mathews [2012] QCA 298.  The review took little time (comprising less than two pages of transcript) and in the course of it Judge Rafter observed:

“In the circumstances, there seems no reason to do other than leave the matter listed for trial, which is trial number 1 in the week of the … 12th of November before Judge G.  So the trial will remain as listed.”

[8] The focus of Mr Mathews’ written submission was the need for special arrangements to be made for him during the trial due to his brain damage disability which affects his ability to perform in real time.  It is not absolutely clear from Mr Mathews’ written submission before Judge Rafter, whether the submissions about requiring his special needs to be accommodated related to the trial of the issue of his fitness to be tried or his trial of the charges (if ultimately committed to the District Court for trial) or both proceedings.  For the purpose of this application, it is prudent to treat the submission made by Mr Mathews as relating both to the trial of his fitness to be tried and any ultimate trial of the charges.

[9] It was a relevant matter for Judge Rafter on the review of the trial of Mr Mathews’ fitness to be tried and for the trial judge to consider any reasonable arrangements to accommodate Mr Mathews’ disability for that proceeding.  There was no legal basis for Mr Mathews, however, to propose that Mr Hunter should not be heard by Judge Rafter, unless the CDPP acknowledged Mr Mathews’ human rights arising from the CRPD.

[10] As the review before Judge Rafter was overtaken by the fact that the trial did proceed on 19 November 2012, there is no utility in this court reviewing the decision of Judge Rafter on 2 November 2012 to leave the matter listed for trial and not address expressly Mr Mathews’ written submission on the implication of the CRPD for the proceeding.

[11] The application for leave to appeal against Judge Rafter’s decision should be refused.

CA No 335 of 2012

[12] On 19 November 2012, Mr Mathews appeared in court for the trial with his two dogs which he was allowed to keep with him.  The trial judge explained to him, in the absence of the jury panel, that the proceedings were to determine his fitness for trial and his capacity to understand the proceedings and explained the process of the jury selection and the steps in the trial.  Mr Mathews explained to the trial judge that he had brain damage which affected his concentration and he fatigued quickly and stated that “provided my special needs are accommodated, I am fit to stand trial.”

[13] Mr Mathews requested the trial judge accommodate his special needs for this hearing, but when asked to specify those special needs, responded that he did not know fully as he was not an expert in knowing what his special needs were.  The trial judge indicated to Mr Mathews: 

“Should you feel tired or you should feel unable to continue, you must tell me that and I will give you a break until you are ready to continue.”

[14] There was some debate between the trial judge and Mr Mathews about how much time he may need, but the panel was brought in for the proceeding to commence.  In front of the jury panel, the trial judge explained to Mr Mathews the process of empanelment and his right to challenge.  In front of the jury panel, Mr Mathews told the trial judge twice “I am fit to stand trial.”

[15] The trial judge explained to the empanelled jury that they were required to determine whether Mr Mathews was fit to stand trial and to understand the charges against him.  Mr Mathews was placed in their charge.  The jury then retired and the trial judge explained to Mr Mathews the procedure that would be followed in the proceeding.

[16] The prosecution called one witness, psychiatrist Dr Moyle.

[17] Dr Moyle was Mr Mathews’ treating psychiatrist between 2003 and 2008 and between January and November 2010.  Dr Moyle expressed the opinion that Mr Mathews could understand the charges, was able to plead and exercise his right of challenge, and was able to understand the nature of a court proceeding (as at the time when Dr Moyle saw him two years previously).  He expressed the opinion that Mr Mathews has “an organic brain syndrome” and explained how that made a person “somewhat concrete in his thinking” in that “he gets stuck on absolute meanings of things” and has “a little difficulty in … moving his thinking forward rapidly”.  Dr Moyle noted that when required to think rapidly, a person with organic brain syndrome may revert to “anxious, angry, irritable responses”.  Dr Moyle’s professional opinion was that Mr Mathews was fit for trial.

[18] Mr Mathews cross-examined Dr Moyle and confirmed that a person with organic brain damage more readily becomes fatigued.  Dr Moyle was cross-examined on the transcript on the committal hearing where the Magistrate observed that Mr Mathews could not cross-examine the witnesses because of his brain injury and that the cross-examination he had undertaken for three days he had done under difficulty and the issue of his “derailment”.  The trial judge asked Dr Moyle to expand on “derailment” and he explained that one could be sitting and talking with Mr Mathews and suddenly irrelevant ideas start being expressed by him that do not seem to have any connection to the topic that is being discussed, but that it does not take long for him to get back on track.  The trial judge invited Mr Mathews to ask further questions of Dr Moyle which invitation Mr Mathews accepted.  Dr Moyle clarified that fatigue worsens any pre-existing problems with thinking.

[19] When Mr Mathews was called upon to indicate whether or not he would be giving or calling evidence, he informed the trial judge in front of the jury that he had no intention of calling or giving evidence.  The jury then retired and the trial judge dealt with Mr Mathews’ request for transcripts of the reviews of the proceeding before the trial judge on 12, 13 and 14 November 2012.  The court adjourned at 12.28 pm until 1 pm for Mr Mathews to read those transcripts.

[20] The jury returned at 1.02 pm and Mr Mathews addressed the jury.  He conveyed to the jury that he thought he was fit to stand trial, but left it to them to make the decision:

“Um, okay. I - I think you, you’ve heard the evidence. You heard that the Crown believes that I’m fit to stand trial and, ah, I believe I’m fit to stand trial too, but I say subject to, ah, my certain special needs being that you - you heard the evidence I have brain damage and I’ve had substantial fractures and such, ah, and of course, it’s, it’s an effort for me to get, to do anything, it really is, to get, even to get in here today and whatever but, you know, I’m, I’m here, I’ve been threatened, whatever.

But, anyway, now, um, I don’t see it as any, um, any real question, you know, to decide. I mean, I - I believe it, the Crown believes it, um, you know, I have a law degree, and so again since I, ah, had my last head injury I received the degree, I think it was - yeah.

So, um, but I have the difficulty in, in concentrating for too long and especially things verbally. I can express things in writing and, of course, I think as you’ve heard the Crown say, if I’m prepared such as in cross-examining witnesses, I’ll have a, you know, all my preparation.

So, um, yeah, so I’m, I think I’m fit to stand trial but, of course, most people would say they were fit, and the Crown says that too. So, you know, there’s hardly any point in our having a, a discussion.

But anyway, you have to make a decision so I’ll let you go and, um, make your decision. Thank you.”

[21] The trial judge then summed up to the jury, directing them that their verdict must be unanimous and that the prosecution must prove that Mr Mathews was fit for trial on the balance of probabilities.  The trial judge noted that the only evidence was from Dr Moyle, but that apart from that Mr Mathews submitted that he was fit for trial, although he pointed to some issues that might give him some difficulty about the way in which he would be able to deal with the trial, but that was not the question for the jury.  The trial judge gave an appropriate direction for the fact that Dr Moyle was an expert and summarised the effect of Dr Moyle’s evidence.  The trial judge pointed out that they could use their own views about the way Mr Mathews conducted himself in the proceeding before them to determine the issue of his fitness for trial.  The trial judge directed the jury that in determining whether Mr Mathews was fit for trial, the issue was whether he was capable of understanding the proceedings of trial, so as to be able to make a proper defence.  The trial judge drew the distinction between the question of whether Mr Mathews might have difficulty in appearing for himself and the issue that had to be decided of whether he was capable of understanding the proceedings, so as to make a proper defence.

[22] The jury retired at 1.18 pm to consider their verdict.

[23] It appears the trial judge was pressed for time and at 1.57 pm requested that the jury be brought in.  When they returned the trial judge noted that the question was “really a very simple one” and inquired whether there was anything he could help the jury with.  The speaker disclosed they had one undecided juror and the trial judge confirmed that the decision must be unanimous and stated:

“But the issue, ladies and gentlemen, is really a very simple one, and it’s not contested by the defendant.  You, of course, must give due weight to the evidence of the psychiatrist.  The – an expert witness is, in this case, someone whose evidence is not only not contested, but it is evidence which you should pay due regard to.  Please retire.”

[24] The jury retired again at 2 pm.  They returned at 2.15 pm and their unanimous verdict was to find Mr Mathews fit for trial.

[25] Although the trial judge was keen to receive the verdict from the jury, the short re-direction that he gave did not overstate the position.

[26] The grounds of Mr Mathews’ application are that the trial judge displayed apprehended bias against him and denied him a fair hearing in that he did not accommodate the special needs caused by his disability.  In his outline, Mr Mathews also submits that the trial judge permitted the Commonwealth of Australia as the CDPP to appear and/or instruct counsel when it had not honoured its obligations and duty pursuant to the CRPD.

[27] Although in his written submissions Mr Mathews repeats that the trial judge denied him his human rights in that he did not accommodate his special needs arising from his disabilities during the trial of the issue of his fitness for trial, in the same outline Mr Mathews confirms that he is able to make his defence, if his special needs are accommodated, but that there is an interaction between his fitness to stand trial and accommodation of special needs.

[28] The transcript of the trial of the issue of Mr Mathews’ fitness for trial shows that the trial judge endeavoured to meet Mr Mathews’ reasonable requests, but in the context of the proceeding being conducted with due regard for the participation of all involved in the process, including the jury and Dr Moyle.  Again, there was no legal basis for Mr Mathews to expect the trial judge to refuse to permit the CDPP to appear by counsel, because of Mr Mathews’ view that the Commonwealth of Australia had breached its obligations and duties pursuant to the CRPD.

[29] It is apparent that Mr Mathews has special needs that will need to be addressed, if he appears for himself in the trial of the charges (if he is ultimately committed for trial).  That is a separate question from whether he is fit for trial which was the question to be answered pursuant to s 20B of the Crimes Act 1914 (Cth) and which entails the aspects of fitness for trial set out by Smith J in R v Presser [1958] VR 45, 48.

[30] In the light of the evidence before the jury in the context of Mr Mathews’ own submissions and the unexceptional summing up by the trial judge, Mr Mathews cannot succeed in overturning the jury verdict.  If he is ultimately committed for trial on the charges that are currently before the Magistrates Court, it will be a matter for the judge presiding at the trial of those charges to endeavour to accommodate Mr Mathews’ special needs due to his disability.

[31] Mr Mathews’ application for leave to appeal against the verdict that he is fit for trial should be refused.

CA No 29 of 2013

[32] On 14 December 1994 Mr Mathews was convicted in the District Court after trial (the 1994 trial) before a jury of assault occasioning bodily harm.  He appealed against that conviction and the appeal was dismissed on the merits:  R v Mathews [1995] QCA 336.

[33] On 12 February 2013 the applicant filed an application for extension of time within which to appeal against the conviction.  At the same time he filed an application for leave to adduce further evidence, namely page 24 of the report of Dr Moyle dated 3 March 1995 which had been prepared for Judge Kimmins for the sentencing that followed the 1994 trial.

[34] The right to appeal against conviction is statutory:  s 668D(1) Criminal Code 1899.  This Court has no jurisdiction to entertain a second appeal against conviction after an appeal against conviction has been dismissed on the merits:  Grierson v The King (1938) 60 CLR 431, 434 and 435 and R v Lumley [2009] QCA 172.

[35] There is therefore no point in considering either the application for extension or the application for leave to adduce further evidence.  Both applications made by Mr Mathews in CA No 29 of 2013 should be refused.

Orders

[36] The orders that should be made are:

1. In CA No 296 of 2012, the application for leave to appeal is refused.

2. In CA No 335 of 2012, the application for leave to appeal is refused.

3. In CA No 29 of 2013, the applications for extension of time to appeal and leave to adduce further evidence are refused.