R v O'Hara[2014] QCA 257

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree that the applications should be refused for the reasons given by Ann Lyons J.

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

[3] ANN LYONS J:

The current application

[4] On 20 April 2012 the applicant was convicted on his own pleas of guilty in the District Court at Brisbane of two counts of fraud on two separate indictments.  The first indictment, indictment number 898 of 2011 related to period of fraud between 21 June 2005 and 23 September 2006 and the second indictment, indictment number 602 of 2012 related to a three year period of fraud between May 2007 and June 2010.  The applicant also pleaded guilty to two summary offences, namely possession of weapons and possession of tainted property.  The learned sentencing judge noted that the combined total loss caused by the two frauds was $2.2 million dollars.

[5] The sentencing judge specifically acknowledged that the applicant suffered from a delusional disorder which had impaired his judgment and moral reasoning:

“Numerous psychiatrists have assessed you. According to the weight of evidence, you suffer from delusional disorder with grandiose features. You believe that your family was persecuted by Hitler and that you were a child refugee. The assumption of the psychiatrists is that this is untrue. I do not know the evidence that leads them to that conclusion. You continue to press those details in your background and I do not know whether it is true or not but I accept that you believe it to be true.

In the last decade or so you have been possessed of a paranoid obsession with the protection of Jews. You lived your life into your 50s as a respected teacher and people observed you to be bright, albeit with some unusual views about the protection of contemporary Jews.”[1]

[6] In relation to the first indictment, the applicant was sentenced to imprisonment for seven years.  In relation to the second indictment he was sentenced to imprisonment for three years.  Those terms of imprisonment were ordered to be served cumulatively, making a total of 10 years imprisonment.  In relation to the two summary offences he was sentenced to 20 days imprisonment.  Those sentences were to be served concurrently with each other and with the 10 year sentence already imposed.

[7] A parole eligibility date was fixed at 3 March 2013. Pre-sentence custody of 778 days from 4 March 2010 until 20 April 2012 was declared as time served under the sentence.

[8] The applicant was released from custody on 12 April 2013 having effectively served three years and 39 days in custody.

[9] Pursuant to an application filed on 24 April 2013, some twelve days after his release, the applicant seeks an extension of time within which to file a notice of appeal against his conviction.

[10] In his application for an extension of time, the applicant states that he was mentally exhausted after he was sentenced and was unable to think clearly or comprehend legal matters or indeed any matters.  He states that this state of mind continued until about November 2012 when it marginally improved.  However, he states that it was not until his release in April 2013 that he was: “able for the first time to actually comprehend the legal situation that I had been through.  Having achieved insight into my legal result for the first time, I formed the view that an unjust legal result had occurred, and immediately contacted Queensland Legal Aid to get help for an appeal.”[2]

[11] The applicant states that it was at that point that Legal Aid Queensland provided him with the appropriate legal documents and advice to apply for an extension of time within which to appeal.  I note that his application was filed whilst he was a resident at Ozcare South Brisbane and within two weeks of his release from custody.

[12] In support of his application to appeal out of time the applicant seeks leave to adduce new evidence in relation to his mental state at the time he was sentenced and whilst in prison.  The applicant argues that he has recently been diagnosed with a neurological disorder namely “focal dyscognitive seizures” which means that he was in an abnormal mental state at the time of sentence due to a “blank out” and that this mental condition also prevented him filing his appeal in a timely fashion.  In his oral submissions to the Court the applicant submitted that he no longer contended that he has ever suffered from a delusional disorder.

[13] At the hearing of his appeal the applicant was given leave to rely on further material namely the letters of Professor Harry McConnell dated 28 April 2014 and 21 July 2014 addressed to his general practitioner Dr Nancy Sturman, a medical certificate from Dr Nancy Sturman dated 14 August 2014 and a letter from the psychologist Mr Bill Huntley dated 5 August 2014.  He further relied on a statement from his former wife, Louise O'Hara dated 30 June 2014 addressed to Professor McConnell.  He also seeks to rely on a letter from the offices of Professor John Corbett indicating that he was undergoing an ambulatory EEG between 18 August and 21 August 2014.  It was clear that he was undergoing monitoring during the hearing of the appeal and indeed he appeared at the hearing wearing the monitoring equipment connected to his head.

Grounds seeking an extension of time within which to file a notice of appeal

[14] In an undated document titled “Opening Statement” the applicant sought a stay of the proceedings so that further independent psychiatric assessments could be obtained.  I note that that was the basis upon which the applicant was granted an adjournment when the matter was first heard before this Court on 15 July 2013.  In the circumstances given the delay to date there was no good reason why any further extensions should be allowed and the applicant did not pursue that application.

[15] The applicant also argued that not only can he explain his delay in filing his appeal due to his mental condition but in addition his application for an extension should be granted because he has a complete defence under s 27 of the Criminal Code 1899 (Qld) (“Criminal Code”).  He also relied on a document entitled “Grounds for Leave to Appeal” filed on 14 August 2014 which was in the following terms:

(a) There was a miscarriage of justice at sentence because he entered the plea of guilty in circumstances when he was in an abnormal mental state due to a “blank out” brought on by a focal dyscognitive seizure attack.

(b) Because of the applicant’s formally diagnosed mental illness described in (a) it completely impaired his capacity to reason.

(c) Because of the applicant’s incapacity to reason, the applicant was not in a normal mental state to either consciously comprehend or understand the charges read against him, nor was he in a position to enter a plea of guilty or not guilty.

(d) The applicant contends that at the time of sentencing on 20 April 2012 he was suffering from a “blank out” episode due to a focal dyscognitive seizure attack.

(e) The applicant contends that his mental state was so traumatised and incoherent before, during and after the Associate’s reading of the indictments due to the focal dyscognitive seizure attack, that he had no way of responding appropriately to what the Associate had asked of him.

(f) The applicant contends that based upon the new medical evidence presented to this Court by way of Affidavit, he should be given leave to appeal his sentence and the convictions in earlier material filed in support of his application.

[16] It is clear that the applicant contends that he entered a plea of guilty in circumstances where he was (a) unfit to plead and (b) had a psychiatric defence because he considers that he should have been given a defence of unsoundness of mind.

Should the applicant be given an extension of time within which to appeal?

[17] The applicant bears the onus in the application for an extension of time within which to file the notice of appeal.  This Court has previously recognised that in an application for an extension of time within which to appeal there are two central issues which are relevant to the consideration of the exercise of the discretion.  First, whether there is a good reason for the delay and second, whether it would be in the interests of justice to grant the extension.

[18] The applicant now argues that he had a diagnosed mental condition namely focal dyscognitive seizure attack (but not a delusional disorder), at the time of sentence and that he was in an abnormal state “due to a ‘blank out’ brought about by a focal discognitive seizure attack” which prevented him from filing a notice of appeal until a year after his sentence and 11 months out of time.

[19] In relation then to the first question as to whether the has been an explanation for the delay I note that none of the new medical material was prepared at the time that the applicant pleaded guilty or at the time the offences were committed.  In particular I note that Professor McConnell in his letter, which was written 12 months after the sentencing hearing, states that: “He described a very elaborate life story and it is difficult to be certain what is and what is not factually based”.[3]  It is also significant that Professor McConnell states that on the basis of the history he was given he considers that the assessment is:[4]

“1.Probable focal dyscognitive seizures, by history. I think it is well possible that these ‘blank out episodes’ could represent focal dyscognitive seizures. I appreciate that there is some elements that might also represent dissociation; he feels that these are related to transient global amnesia but I think that is a less likely possibility here.

2.Probable delusional disorder by history. The diagnosis of delusional disorder I think also looks probable here by history but I would like to further clarification on the basis of this diagnosis and I have asked him to obtain those records as well the records of the Mental Health Tribunal concerning this.”

[20] It would seem clear, therefore, that Professor McConnell relied totally on the factual history presented to him by the applicant and had no primary material upon which to rely.  He did however ultimately obtain information and a statement from the applicant’s former wife dated 4 July 2014 which referred to a number of occasions during his life when he suffered from ‘memory lapses’ and ‘blankness’.  The letter of Professor McConnell dated 21 July 2014 stated that there was a need to obtain further information for “at least one month of base line on the calendar”[5] as well as a 72 hour EEG.  It would seem that that may in fact be the procedure which is currently being carried out.

[21] I also note that the letter of Mr Bill Huntley, psychologist, similarly states that his assessment is based on incidents that Mr O'Hara described to him.  Mr Huntley also noted the difficulty in obtaining a factual basis for Mr O'Hara’s claimed dissociated experiences, noting that “hard evidence to confirm the necessary precursors for such an attribution appears scarce”.[6]  He also noted the importance of Professor McConnell conducting further testing and carrying out further diagnostic clarification.  I note that none of those reporters are available for cross-examination.  Significantly it would also seem to me that even if a concluded diagnosis of “focal discognitive seizures” is made it can not in fact indicate what the applicant’s cognitive functioning was on the day of the sentence in April 2012.

[22] In terms of the weight which should be accorded to this new material I consider that this further evidence contains at best a probable and provisional diagnosis which has been made on factual basis which has not been established.  Furthermore it is submitted by the applicant that this probable and provisional diagnosis should be applied retrospectively to April 2012.  The applicant also submitted that he no longer has a diagnosis of “delusional disorder” although I note that Professor McConnell, in fact, seems to accept that he has “Probable delusional disorder by history” and sought clarification by asking for the applicant’s Mental Health records.

[23] The applicant is relying on the new medical information first, to explain his delay and second, to establish that there is a good reason to ultimately allow his appeal.  Accordingly the evidence in relation to his mental condition particularly around the time of his sentence assumes some significance.  In this regard I also note that a number of reports were obtained whilst Mr O'Hara was in custody prior to sentencing.  In particular in the material previously filed by the applicant there are reports from:

(i) Psychiatrist Dr Mark Barnes dated 22 June 2011, 10 February 2012 and 2 May 2012.

(ii) Forensic Psychiatrist Dr Jonathan Mann dated 1 March 2012.

(iii) Consultant Psychiatrist Dr Jill Reddan dated 16 May 2011.

(iv) Forensic Psychiatrist Dr Russ Scott dated 21 January 2011.

(v) Consultant Psychiatrist Dr Lesley Walton dated 30 August 2002.

[24] Clearly then on the material currently before me there are, in fact, a number of reports about the applicant’s actual mental functioning prior to the sentencing hearing and in the further period of twelve months that he was in custody.

The Psychiatrists reports from 2012

[25] There is a report from Dr Jonathan Mann, forensic psychiatrist, dated 1 March 2012 based on assessments he had conducted on 8 February 2012 and 29 February 2012.  Dr Mann last saw the applicant some seven weeks prior to the sentencing hearing.  In that report Dr Mann went through the applicant’s history of mental illness.  He also set out the previous reports that he had been able to obtain from psychiatrists dating back to May 2001.

[26] It is clear that Dr Mann was aware of the applicant’s longitudinal history.  In terms of whether he was suffering from a mental disease, natural mental infirmity or other relevant condition, Dr Mann opined that the applicant suffered from delusional disorder, grandiose type (DSM-4-TR 297.1).  He considered that the delusional disorder was characterised by systematised, well circumscribed and non-bizarre delusions which centre on him having been born to Jewish parents in Nazi Germany and having his identity changed.  Apart from the impact of the delusions and its ramifications, his considered that his functioning was not markedly impaired and that his behaviour is not odd or bizarre.  Dr Mann also considered that the symptoms of this disease would appear to have been longstanding and would have been present at the time of the alleged offences.  Dr Mann noted that the applicant was not receiving any current antipsychotic medication but was continuing to see a psychiatrist whilst he was incarcerated.

[27] Dr Mann concluded that the applicant “has functioned at a reasonable level throughout his life despite his mental disease and it is likely that he will be able to continue to do this in the future.  I suspect that if he were exposed to prolonged stressful situations this could be associated with the worsening of his prognosis.”[7]  In terms of whether he was of unsound mind, Dr Mann noted that the applicant told him that he disputed some of the facts in relation to the first set of fraud offences, particularly arguing that he was innocent of what was actually going on.  In relation to the second set of fraud charges, he noted that the applicant considered that he had a right to do what he did and was not disputing the charges.  Ultimately, Dr Mann considered that the applicant was not deprived of the relevant capacity to understand what he was doing at the time of the alleged offences and that he was not deprived of the capacity to control his actions at the time.  In particular he noted that “the offences seem to have resulted from his planned and deliberate actions and he has not described passivity experiences or automatisms in relation to the events.”[8] (my emphasis)  Neither did Dr Mann consider he was deprived of the capacity to know he ought not do the act or make the omission in relation to any of the alleged offences.  He noted he was aware that what he did was against the law and that he took steps to avoid being discovered.  He considers that he attempted to justify his action in relation to the second set of fraud charges based on his belief that he needed to provide funds to the Jewish Defence League of Australia.  Whilst he considered that there was no complete deprivation of the capacity to reason about the moral rightness of his actions, he considered he was probably significantly impaired in that capacity.

[28] In relation to the question of fitness for trial, Dr Mann considered:[9]

“Michael O'Hara understood the charges he is facing and was capable of exercising his right of challenge in court through his legal representative. He understood the nature of the proceedings and would have the capability to follow the proceedings in court. He was able to adequately explain the roles of the various people in court, including the jury, the judge, the prosecutor and his legal representative. He is capable of letting his counsel know what his version of the facts are, of deciding what defence to rely on and of entering a plea.

I note that in the past his mental state has been less stable than it currently is and there have been times previously when he has not been fit for trial. I note that Dr Barnes doubted he was fit for trial in November 2010 and that he was not accepting medication. He currently presents as relatively well and stable but it is likely that his mental disease will fluctuate over time. His delusional beliefs remain well circumscribed and currently do not pervade his understanding of the legal processes.

It is my opinion that Michael O'Hara is currently fit for trial. If his mental state was to deteriorate in the context of the stress of the prison environment or due to the court process, then this may need to be re-evaluated.”

[29] Dr Mann then concluded that at that point in time the applicant did not meet the criteria for involuntary treatment and did not require inpatient treatment in a psychiatric facility.  He also noted he was accepting of further appointments with the prison mental health service.

[30] It is also significant that a report was obtained from his treating psychiatrist in the prison, Dr Barnes, and that report was dated 10 February 2012.  In that report Dr Barnes outlined the history of his mental illness and the fact that the applicant had been seen by two psychiatrists in the Arthur Gorrie Correctional Centre, namely Dr Spencer and Dr Neillie, who had both diagnosed a delusional disorder.  He also noted that both doctors had attempted to persuade Mr O'Hara to accept antipsychotic medication without success.  When he was transferred to the High Secure Inpatient Services Hospital he was commenced on antipsychotic medication on an involuntary treatment order and was receiving depot injectable antipsychotic medication.  After six weeks in the High Secure Hospital he was transferred back to the prison.  Dr Mann stated that the medication was ceased when he started to experience significant side effects.

[31] I note that in the report of February 2012, Dr Barnes stated that the applicant had improved physically and emotionally.  Dr Barnes noted that the applicant was currently a voluntary patient whilst on remand in the Brisbane Correctional Centre and was amenable to ongoing psychiatric appointments.  Dr Barnes reported in that February report that his physical health was good and that mentally he was also well.  In that assessment Dr Barnes considered that the applicant was not experiencing any disorder of thought form but that he had ongoing chronic delusional beliefs.  He also stated that the applicant had always denied any perceptual disturbance and stated that cognitively he appears grossly intact (my emphasis) although he stated that had not been formally tested.  He stated that, “His insight is partial and his judgement does not show any recent evidence of impairment”.[10]  I also note that there is a confidential medical report from the treating doctor dated 2 May 2012.  That report was signed by Dr Barnes who noted that he had a delusional disorder of approximately 20 years duration.  I note that the report indicated that he had an overall capacity to function but that on release he would need stable accommodation to allow him to benefit from rehabilitation.

[32] On 4 April 2013 just prior to his release Dr Anthony Tie, a consultant psychiatrist with the Prison Mental Health Service, also provided a letter to the Queensland Parole Board.  In that letter he stated that Mr O'Hara has a diagnosis of delusional disorder and that during his time in custody he had attended regular psychiatric reviews with Dr Tie.  Dr Tie stated that Mr O'Hara had reflected on and developed insight into the adverse impact of the delusional disorder on his life.  He stated:[11]

“Mr O'Hara has maintained the stability in his mental state. There were nil acute risk concerns in the structured custodial environment. Mr O'Hara is keen to attend regular psychiatric appointments with the Prison Mental Health Service while in the custodial setting.”

[33] A previous letter from Dr Tie dated 24 December 2012 indicated that Mr O'Hara had attended regular psychiatric reviews and that Dr Tie had been treating him since June 2012.  He indicated he had been engaged in regular psychiatric dialogue with him.  On 24 December 2012 he stated:[12]

“When reviewed on 20/12/12, Mr O'Hara presented as affable and articulate. There were no pervasive mood symptoms. There was no formal thought disorder. There were no perceptual disturbances. There were nil acute risk concerns in the structured custodial setting.”

Dr Tie also indicated that during the regular psychiatric reviews Mr O'Hara had elaborated to him:[13]

“•‘I had no insight into the reality of my illness’;

•‘I believed what I was doing for the Jewish Defence League was worthy and right – it’s not right to scam innocent people for money’;

•‘all of this feedback from Dr Barnes (previous treating consultant psychiatrist), my family, my lawyers, something clicked and I realized that I had no value to the Jewish people’;

•‘all this is nonsense about being Adolf Hitler’s son – that is a nonsense’.”

[34] Accordingly there was nothing in that material which indicates that he has previously described cognitive disturbances to any of the psychiatrists who were regularly reviewing him around the time of sentence.  Neither is there any indication that he was even remotely psychiatrically or emotionally unwell before or after his date of sentence in April 2012.  Furthermore the applicant was being regularly assessed by experienced prison mental health staff who detected nothing abnormal in his daily presentation.  Having reviewed those reports I do not consider that there is anything in that material which supports a factual basis for a diagnosis of dyscognitive seizure attacks during his period in custody.

[35] Accordingly I am not satisfied that the applicant has adequately explained his failure to appeal within time.

[36] It is clear however that even if an explanation for the delay is not established, the court can still consider whether it is in the interests of justice to allow the appeal out of time.  Accordingly, it is necessary to consider the applicant’s arguments in this regard.  He argues that he was (a) not fit to plead on the day and (b) that he has a defence of unsoundness of mind for all of the offences due to his dyscognitive state.  In order to consider those issues it is necessary to consider the circumstances of the two periods of fraud.

The circumstances of the offending

[37] The circumstances of the applicant’s offending were set out in an agreed schedule of facts.  In the course of her sentencing remarks the learned sentencing judge indicated that it was clear that there were two separate courses of fraud.  The first period was between 21 June 2005 and 23 September 2006 and involved a company called Sports International Investment Corporation (“SIIC”) run by a man called Mark Henderson.  The applicant was involved with Henderson in a fraudulent scheme which was set up by Henderson and people close to him.  The applicant became the principal salesman and played a pivotal role in that scheme.  He would represent himself as an investment broker and actively sought victims by cold calling them and enticing them into investment deals.  It is clear that the applicant used various aliases and told complainants that their money would be invested in schemes such as international mining ventures and sporting events.  The scheme involved a promise that whilst their money would be locked away for 12 months they would be guaranteed very lucrative returns.

[38] As the sentencing judge noted, there was some considerable effort put into presenting a legitimate operation and the company ran a website which purported to track the successful progress of investments.  Elaborate documentation was prepared and a virtual office was set up which was supported by a telephone answering service.  The evidence indicates that Henderson had set up a bank account and closed it down 15 months later.  In that period 56 groups deposited over $1.8 million for the purpose of investments that never occurred.  At the end of the 15 month period Henderson had cleaned out the account.  Nothing was ever returned to investors.  When the promised returns fell due, the applicant made excuses before he disappeared at the same time the account was closed.  That was the first period of fraud.

[39] The second instance of fraud commenced in May 2007 five months after the first period of fraud ceased and continued for over three years until June 2010.  In the second period the applicant set up his own company called Merchants International Investment Corporation (“MIIC”) whilst he was living on the Gold Coast.  In that three year period he induced 17 people to invest in a similar scheme to that in which he had been involved with Henderson.  It involved fabricating investment ventures including fake evidence of underwriting by Lloyds of London.  During that period he defrauded investors of $460,000.

[40] This second scheme only ceased when the applicant was arrested for the SIIC fraud because when he was denied bail for the SIIC fraud documents and identities relating to the MIIC fraud were found at his home.  The evidence indicates that when he was confronted by these documents he argued that it was a legitimate business.  I also note that a sum of $230,000 was found in a bag at his home.

Was the applicant unfit to plead?

[41] Part of the applicant’s argument for the extension is that he was not in any fit state to plead on 20 April 2012 when he pleaded guilty to the offences and that therefore his conviction should be set aside.  As I have indicated the report of Dr Mann which was prepared around the time of the sentencing hearing does not indicate that he was unwell around that time.  In my view there is simply no basis for a conclusion that he was unfit to plead at the time of sentence.  As I have already indicated there is as yet no concluded diagnosis of a dyscognitive seizure disorder and significantly no evidence such a condition was actually operating on the day of sentence.  Furthermore even if I accept that he was suffering from a mental illness at the time (which is now disputed by the applicant) I note Dr Mann’s opinion that the applicant’s delusional beliefs were well systematised, had a specific area of reference and did not in fact otherwise affect his daily functioning.  Accordingly even if the mental illness was flourishing at the time there is nothing to indicate that this would have affected his ability to understand the nature of the sentencing hearing.

[42] I also note that at the sentencing hearing the Crown prosecutor indicated that in relation to the SIIC indictment the applicant had indicated in 2011 that he would plead guilty.  In relation to the MIIC indictment the prosecutor indicated that there was a full hand up committal and that there was an early indication of a plea of guilty.  I also note that at the sentencing hearing the following submissions were made by defence counsel:[14]

“MR CHOWDHURY: Can I just correct a number of matters that my learned friend has said? Pleas of guilty to both matters were indicated last year and, in fact, a submission was sent to the Crown in about June 2011. Ultimately a sentence for both indictments was listed on the 16th of December last year before his Honour Judge Martin. That did not proceed because both my instructing solicitor and I had grave concerns about my client's mental state and the matter was adjourned to allow us to get the further report of Dr Mann and at various reviews before the trial of Henderson commenced before the Chief Judge it was clearly indicated this matter would either be a reference to the Mental Health Court on his fitness or it would be a plea.

…

MR CHOWDHURY: Your Honour, it's perhaps an understatement to say that my dealings with Mr O'Hara over a lengthy period of time have revealed fluctuations in his position, but as carefully as we have, we have spoken to Mr O'Hara at length over the last six months to confirm his instructions and given the state of his delusional disorder that partly explains why we have the fluctuation in instructions, but he has clearly indicated for some time now he intends to plead guilty to these charges. He now, in fact, has pleaded guilty and he deserves credit on the principles of what Justice Kirby said in Cameron and The Queen of saving what would have been a more greatly extended trial in this Court if Mr O'Hara had also gone to trial along with Mr Henderson.

In respect of the amount of money in respect of the Merchant International charges, which is the second set of charges that my client alone is responsible for, the total amount of money that he received from investors was $464,000 and, of course, fortunately the police were able to recover about half of that in the amount of money that was found at my client's house. There was $230,000 at his house just lying about, I might add, your Honour, and he had $20,000 in a bank account which the police were able to obtain and, of course, he has consented to the forfeiture of that money to the State and hopefully that can be used to perhaps give some recompense to the investors in that scheme.”

[43] Accordingly it is clear that the pleas of “guilty” had been indicated for a considerable period of time after close consultation with a very experienced criminal barrister.  Those instructions were maintained for a long period of time and those pleas were entered before a sentencing judge who was well aware of all the relevant issues and was well aware of the need to be satisfied about the applicant’s fitness to plead on the day.  The transcript of evidence also clearly indicates that the applicant understood the proceedings and indeed made an appropriate and substantial contribution to the proceedings as follows:

“DEFENDANT: Your Honour, my true birth date is 7/1/42. I was born in Dresden, Germany, on that date. My father was Abraham Isaac Corwan, a Rabbi. My father was murdered by the Nazis in Treblinka Concentration Camp in 1943. My mother was Rose Corwan. We were brought as refugees from Germany between the 12th and 17th of January 1945. I was given the name and identity of a British citizen Michael John O'Hara, born on the 14th of 9 '51. That is impossible, your Honour, given the fact that I played for Luton Town in the second division of the football league in the United Kingdom on the 1st of October 1960.

Your Honour, had it not been for my mental illness none of these offences would have been committed. I am deeply, deeply remorseful of what I have done. I have brought myself and the Jewish organisation which I represent to its lowest ebb and I am sincerely apologetic for it. No words can say how disconsolate I am for my actions. I apologise to the people who I have - have put their trust in me and I failed them and I admit to that, but I just close, your Honour, with this statement: on the second set of fraud charges they were motivated through my mental illness which was projected, if you will, by the fact that I have a paranoid obsession for the safety of the Jewish race not only in Israel, but in the wider diaspora, and I thank you for the time you have given me, your Honour. Thank you.” [15]

[44] In my view that statement does not indicate that the applicant was experiencing a ‘blank out’ or was in a state of cognitive ‘disassociation’ on the day of sentence.  Furthermore it would also seem to me that if his delusional disorder was in fact flourishing at the time it did not impact on his ability to understand the nature of the sentencing hearing or his pleas of guilty to both sets of charges.  I am not satisfied that there is any substance in the applicant’s argument that he was unfit to plead.

[45] The question remains however as to whether it is none the less in the interests of justice for the applicant to be given leave to appeal on the basis that there is substance to the argument that he has a complete defence on the basis of s 27 of the Criminal Code because he was of unsound mind at the time of the commission of any of the offences.

Was the applicant of unsound mind at the time of the offences?

[46] I have previously referred to Dr Mann’s report and his conclusion that the applicant was not deprived on any of the relevant capacities at the time he committed the offences in the three year period from 2007 to 2010.  Dr Mann noted that the applicant initially disputed the facts surrounding the fraud counts on the first indictment.  Clearly however after discussions with his legal advisers he entered early pleas of guilty to both sets of charges.

Dr Reddan’s report dated 16 May 2011

[47] In this regard I also note Dr Reddan’s report as follows:[16]

“Essentially Mr O'Hara disputes the facts in relation to the fraud offences. Mr O'Hara claims to have been an innocent telesales person employed by Reliance Investment Group during 2005 and that he had no idea that the investments he was selling were bogus. His dispute of the facts is not odd or bizarre in nature and indeed the written material he has produced as part of his dispute of the fraud related matters is well organised with considerable attention to detail. However, he now seems to have resiled from his allegation that the name Peter Smith was used by another man. Mr O'Hara's claims and/or beliefs about his early childhood and background have nothing to do with the fraud related offences nor with his dispute of the facts in relation to the fraud offences.

Mr O'Hara disputes that the cash he had in his possession at Parkwood was the proceeds of any fraud. Rather he offers a rather fanciful tale, similar to the sort of tales recounted in popular fiction, that he was acting as a money courier. In the accompanying material he offers a different explanation for his possession of the money but in any event again his dispute of the facts in relation to the possession of tainted property is not the product of a specific mental illness.

Mr O'Hara admits that the weapons he had in his possession were not registered and he does not dispute the possession of weapons charge, rather he dismisses the seriousness of such possession as he was merely "the keeper" of the weapons.

As outlined earlier in this report and in the accompanying material, Mr O'Hara offers a rather fantastic and grandiose account of his birth, early childhood and development. The actual facts of Mr O'Hara's birth and early development are unknown but it is likely to have been very much more mundane than Mr O'Hara now recounts. The question which is still somewhat unresolved is whether Mr O'Hara's account arises from a Delusional Disorder (DSM-IV TR) or is the product of a fantasist, conman and liar. It is interesting to note that Mr O'Hara did admit to forging documents in relation to the pistols (the subject of his conviction for forgery in 2002) in his account to Dr Lester Walton but that this forging of documents to support the provenance of the pistols had a higher purpose. It is also possible that in fact Mr O'Hara's psychopathology involves both the development of a set of well organised delusions in the setting of an individual with a disturbed personality who is also a conman and a liar. As part of this formulation, it could be speculated that Mr O'Hara's delusions about his origins have become embroidered to persuade others to part with money by various means.

In this context His Honour, Judge Kelly's, comments about Mr O'Hara's conduct as being similar to that of a person with Munchhausen's is insightful and interesting and suggests that Mr O'Hara presented in front of His Honour as an inveterate liar with a tendency towards grandiose, fantastic stories to make himself appear important and interesting. He is certainly a man of above average intellect with considerable capability who appears to have worked successfully as a teacher for quite a number of years. It would appear he lost his job as a teacher because of his convictions for forgery rather than because of poor ability as a teacher or any specific misconduct as a teacher. He also appears to have led a very compartmentalised life with much about his activities and mode of living unclear or unknown even to those who might have been thought to have known him well, such as his family.

In short there are aspects of Mr O'Hara's history which are suggestive of a man with a Delusional Disorder but also many aspects of his history which would be most unlikely in an individual harbouring delusions. However as previously stated it is also possible that Mr O'Hara has an unusual or disturbed personality with the evolution over time of circumscribed, organised and focused delusional thinking. However if Mr O'Hara does harbour delusions, they have little to do with the charges which he is facing.

Notwithstanding the uncertainties about Mr O'Hara's psychopathology he is fit for trial within the meaning set out in the Mental Health Act, 2000.

As previously stated Mr O'Hara disputes that facts in relation to the possession of tainted property and fraud charges but he does not substantially dispute the facts in relation to the possession of weapons charge. There is no evidence that at the time of the commission of these alleged offences, Mr O'Hara was suffering from a mental disease which deprived him of any of the three capacities specified in Section 27 of the Criminal Code of Queensland. Thus I cannot recommend that, even if there were not a dispute of the facts, that Mr O'Hara has a defence of unsoundness of mind in relation to any of the charges as per Section 27 of the Criminal Code of Queensland.”

Dr Russ Scott’s report dated 21 January 2011

[48] Dr Scott also addressed this issue as follows:[17]

“Mr O'Hara has consistently denied committing any of the offences of dishonestly obtained property from others and possession of property suspected of being tainted. For the specific purposes of this report, I make the assumption that Mr O'Hara did commit all the alleged offences.

Opinion: Question of unsoundness of mind

In relation to the offences, at the relevant times, Mr O'Hara had an untreated and long-standing mental illness (delusional disorder - grandiose type), However, there is no good evidence that Mr O'Hara was acutely unwell at the time the offences were allegedly committed. Mr O'Hara's subject offences are not connected with his chronic grandiose delusions. Mr O'Hara's grandiose delusions relate to his date of birth and identity and his fantastical life of intrigue and espionage.

Mr O'Hara has previously demonstrated his meticulous planning and ability to forge documents and create false identities. The systematic execution of the alleged offences appears to show considerable preparation and organisation and a very elaborate criminal enterprise over an extended period of time by which Mr O'Hara and his co-accused are alleged to have amassed over $ 2 million from investors.

Mr O'Hara may have experienced an exacerbation of his longstanding delusional disorder with a mildly elevated mood and an increased pre-occupation with his grandiose delusions in the context of recent significant stressors (viz. being estranged from his ex-wife and children, being questioned and later arrested and subsequently being incarcerated charged with his current offences).

However, at the relevant time of the subject offences, Mr O'Hara was not deprived of any of the relevant capacities. Although Mr O'Hara’s judgement is chronically impaired, his involvement in the alleged offences and his subsequent dissembling involved considerable planning and organisation. It is possible that Mr O'Hara was in part deceived by others in the elaborate conspiracy to defraud credulous people of their investments. However, by his preparation and subsequent behaviour (including attempting to evade and mislead police and then offering alternative and exculpatory versions of events), Mr O'Hara clearly demonstrated that he had the capacity to know that he ought not do the acts which constitute the offences with which he is currently charged.

Opinion: Question of intoxication

Apart from very infrequent celebrations, Mr O'Hara denied any regular consumption of alcohol or use of substances, Mr O'Hara's ex-wife confirmed that she never knew Mr O'Hara to consume alcohol, There is no account of any alcohol or paraphernalia of substance use being found on a search of his premises or in Mr O'Hara's possession when he was arrested.

Opinion: Question of capacity to participate at trial

Mr O'Hara's exacerbation of his longstanding delusional disorder has responded only marginally to supervised anti-psychotic medication and cognitive therapy, Mr O'Hara has evidenced some improved insight into his longstanding illness.

However, Mr O'Hara's chronic self-referent delusions do not incorporate details of the current allegations against him and do not impact upon his interactions with his legal advisers or court proceedings. Mr O'Hara's solicitor and counsel were able to act for Mr O'Hara during a nine day committal hearing in December 2010 during which Mr O'Hara instructed his legal defence in the cross-examination of witnesses and participated meaningfully in proceedings.

Currently, Mr O'Hara has the following capacities:

• to understand what he is charged with and to understand the nature of proceedings
• to exercise his right of challenge,
• to follow court proceedings
• to understand the substantial effect of evidence that may be given against him
• to make a competent plea to his charge and to instruct solicitors

Legal proceedings would not cause serious adverse consequences to Mr O'Hara's mental condition whilst he remains adherent with medication.”

[49] Accordingly, on the basis of that material it is patently clear that Mr O'Hara was not considered to be of unsound mind at the time he committed any of the offences.  Furthermore, he has given varying accounts of his involvement in the offences over the two relevant periods.  It is also clear that whilst there was some initial indication that he would plead not guilty he did subsequently indicate for a long period of time that he would plead to the charges.  In this regard the High Court in Meissner v The Queen held:[18]

“A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.”

[50] In my view therefore the applicant has no reasonable prospects of success in arguing that he was either unfit to plead or of unsound mind at the time of any of the offences.

[51] I would dismiss the application.

[52] On 15 September 2014 the applicant filed a further bundle of material and sought leave to rely on the further material.  Practice direction 3 of 2013 provides:

“WRITTEN SUBMISSIONS AND MATERIAL NOT TO BE FILED AFTER HEARING

28.Unless a Court or a judge of appeal directs otherwise, a party may not lodge written submissions or file material after the oral hearing of a proceeding. If a party considers the interests of justice or ethical obligations require that further submissions or material be received, the party may file and serve an application to lodge further submissions and file material, setting out why the material should be received and its effect. The application may be determined without an oral hearing.”

[53] A perusal of that material indicates that the further material consists of:

1. an affidavit of Michael John O'Hara sworn 15 September 2014 seeking leave to file further submissions;

2. a further affidavit of Michael John O'Hara sworn 15 September 2014 exhibiting correspondence with the registry and further submissions on the merits of his application heard on 20 August 2014, together with a report of Dr Mann dated 1 March 2012.

It is clear that the material sought to be adduced was either available at the time of the application or is a re-argument of the merits of his application.  I would refuse the application to adduce further material.

[54] The application may be determined without an oral hearing; I would therefore refuse the application.

[55] I would accordingly refuse both applications.