R v KBF[2023] QCA 193

[2023] QCA 193

COURT OF APPEAL

BOND JA

RYAN J

KELLY J

CA No 329 of 2021

DC No 17 of 2021

THE KING

v

KBF Appellant

BRISBANE

WEDNESDAY, 27 SEPTEMBER 2023

JUDGMENT

THE COURT:  On 17 November 2021 the appellant was convicted of four counts of rape and three counts of indecent treatment of a child, following a jury trial in the District Court.  At the time of trial the appellant was aged 79.  The offending was alleged to have occurred between 29 December 2004 and 30 June 2008.

The appellant appeals his conviction on the sole ground that evidence obtained after his conviction demonstrates that there is a real and substantial question as to whether he was fit to plead and to stand trial at the time he did.  In R v Dunn [2015] 2 Qd R 407 at 429, McMurdo P observed, citing Hayne J in Eastman v The Queen (2000) 203 CLR 1 at 107:

“[T]here will be a miscarriage of justice if an accused has gone to trial and been convicted when he may not have been fit to plead and stand trial.  If there is a real and substantial question to be considered about an accused’s fitness to plead, there is a miscarriage of justice.  The question is not whether the appellate court is persuaded the accused was not fit to plead, but whether there was a question as to the accused’s fitness.  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 so that the question of fitness can be put aside.”

In order to make good his case, the appellant sought and obtained leave to rely on new evidence.  The leave was not opposed by the Crown.  The new evidence revealed that the question of the appellant’s fitness for trial did not arise until after his conviction.  Two days after his conviction the appellant was admitted to hospital.  Less than a month later the appellant’s daughter had engaged new lawyers with a view to conducting an appeal.  After only a few conversations the new lawyers quickly realised that there were concerns over his then capacity to provide instructions and, by implication, questions as to whether he had been fit to plead and to provide instructions at his trial.

It is not necessary to delve too deeply into the process by which ultimately appropriately qualified medical professionals were engaged.  Although there were some delays, they were explicable and not such as would have justified refusing leave to rely on the new evidence.  Dr Brand, a psychiatrist, was engaged to provide a report for the purposes of sentencing.  She was not specifically asked to provide a retrospective assessment of whether the appellant was fit to plead and stand trial at the time of his trial.

In a report dated 9 May 2022 Dr Brand opined that the appellant met the DSM-5 criteria for a major neurocognitive disorder, previously called dementia, and did not have capacity to provide instructions.  She observed:

“[The appellant] was assessed as having limited capacity in respect to complex legal, financial and medical matters.  [The appellant] has been assessed as not having capacity to provide legal instruction and manage any instructions and orders he might receive and was assessed as having impaired capacity to participate in a sentencing hearing, specifically given the significant charges he is facing.

I am of the opinion that his significant mental health symptoms do negatively impact on his ability to perform activities of daily [life], to the extent that he would [require assistance] with domestic chores.”

Dr Brand’s opinion did not directly address the question before this Court.  If Dr Brand’s report was the only relevant evidence before this Court a question might arise as to whether it was legitimate to regard it as shedding light on the appellant’s fitness to plead and to stand trial at an earlier time.  Nevertheless, that was the appellant’s submission.  He submitted that the diagnosis of a major neurocognitive disorder and a finding of a lack of fitness six months after his conviction was strongly suggestive of questions as to his fitness at the time of trial.

Importantly, however, Dr Brand’s report is not the only relevant evidence.  Dr Hatzipetrou, a clinical and forensic psychologist, was engaged to perform a retrospective assessment regarding the appellant’s fitness to plead as at the time of the trial.  In forming his views Dr Hatzipetrou had the benefit of Dr Brand’s report and the appellant’s Prison Health Services file.  His report was dated 5 June 2023 and directly addressed the appellant’s likely fitness to stand trial at the time of his trial, including that he was not fit by reference to the appropriate criteria.

Dr Hatzipetrou’s report also provides support for the submission which the appellant makes in relation to Dr Brand’s opinion when it stated that the onset of the major neurocognitive disorder was unlikely to have been spontaneous, and in most cases there is an insidious onset.

It is unnecessary to summarise the other evidence before this Court which points to the same conclusion.  The appellant submits, and the respondent accepts, that the evidence now before the Court supports the conclusion that there is at least a real and substantial question to be considered as to the appellant’s fitness to plead and to stand trial at the time he did plead and stand trial.  The appellant submits, and the respondent accepts, that a miscarriage of justice has been established.  We agree.

We make the following orders:

1. The appeal is allowed.
2. The convictions are set aside.
3. A new trial is ordered.