Berg v Director of Public Prosecutions (Qld) [2012] QCA 91

SUPREME COURT OF QUEENSLAND CITATION: Berg v Director of Public Prosecutions (Qld) [2012] QCA 91 PARTIES: VINCENT VICTOR BERG (appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) (respondent) FILE NO/S: Appeal No 9360 of 2011 MHC No 90 of 2010 DIVISION: Court of Appeal PROCEEDING: Appeal from the Mental Health Court ORIGINATING COURT: Mental Health Court at Brisbane DELIVERED ON: 13 April 2012 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGES: Margaret McMurdo P and Chesterman JA and Dalton J Separate reasons for judgment of each member of the Court, Chesterman JA and Dalton J concurring as to the orders made, Margaret McMurdo P dissenting in part ORDER: 1. Set aside the order below declaring that the appellant was not of unsound mind at the time of the alleged offences. 2. Appeal otherwise dismissed. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the appellant is charged with 37 offences alleged to have occurred between 1999 and 2004 – whether a finding that the appellant was of unsound mind at the time of the alleged offences should have been made where there was doubt that the appellant committed the offences charged – whether the Mental Health Court erred in finding that the appellant was fit for trial – role of treating psychiatrist as witness – importance of collateral information to assessment for Court, particularly where issues of exaggeration and fabrication are present Mental Health Act 2000 (Qld), s 267, s 268, s 270, s 271 Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84, cited -- 1 of 14 -- 2 McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51, cited COUNSEL: No appearance by the appellant, the appellant‘s submissions were heard on the papers No appearance by the respondent, the respondent‘s submissions were heard on the papers SOLICITORS: The appellant on his own behalf Director of Public Prosecutions (Queensland) for the respondent [1] MARGARET McMURDO P: I agree with Dalton J's reasons for allowing this appeal. The appellant referred his mental condition to the Mental Health Court under s 257 Mental Health Act 2000 (Qld). This required the Mental Health Court to determine whether he was of unsound mind when the alleged offences were committed (s 267(1)(a) Mental Health Act) unless satisfied there was a reasonable doubt he committed the alleged offences (s 268(1) Mental Health Act). The concept of reasonable doubt under s 268 is not reasonable doubt in the sense that phrase is used as to the criminal law standard of proof. For the purposes of s 268, there is a reasonable doubt where the alleged offender disputes the alleged offences. The alleged offences are then disputed offences under s 268. In this case the appellant contended that he did not commit the alleged offences so that there was a reasonable doubt for the purpose of s 268 and they were disputed offences under s 268. As a result, the Mental Health Court could not make a decision about whether the appellant was of unsound mind. It follows that the order of the Mental Health Court that the appellant was not of unsound mind must be set aside. Instead, I consider there should be an order that the offences are disputed offences under s 268(1) Mental Health Act. [2] The Mental Health Court was required to determine whether the appellant was fit for trial (s 270(1)(b) Mental Health Act). As Dalton J explains, the appellant has not demonstrated any error in the Mental Health Court's reasons for finding him fit for trial. I agree with the Mental Health Court's reasons for reaching that conclusion. [3] I would make the following orders: 1. The appeal is allowed to the limited extent of setting aside the order declaring the appellant was not of unsound mind at the time of the alleged offences. 2. Instead, it is ordered that the offences are disputed offences under s 268(1) Mental Health Act. 3. Otherwise, the orders of the Mental Health Court are confirmed. [4] CHESTERMAN JA: I agree the Court should make the orders proposed by Dalton J, for the reasons given by her Honour. [5] DALTON J: This is an appeal from a decision of the Mental Health Court delivered on 27 September 2011. The findings and orders made below were: -- 2 of 14 -- 3 ―1. The defendant was not of unsound mind, as defined in the Mental Health Act 2000 (Qld) Schedule 2, at the time of the alleged offences 2. The defendant is fit for trial 3. Proceedings against the defendant are to continue according to law‖. [6] The charges against the appellant and the history of delay in the matter are outlined in the judgment below as follows: ―[1] Vincent Berg is charged with 37 offences. Those charges include one count of indecent treatment of a child under 16 which is alleged to have occurred between September and October 2000. He is also charged with one count of procuring a sexual act by false pretence, three counts of grievous bodily harm, two counts of assault occasioning bodily harm, one count of obtaining financial advantage by deception as well as 28 counts relating to various offences of fraud, attempted fraud and uttering forged documents. All of the offences are alleged to have occurred between June 1999 and June 2004. [2] The fraud and deception charges arise because it is alleged that Vincent Berg has falsely claimed to be a Russian trained psychiatrist. The charges arose as a result of the 2003 Queensland Public Hospitals Commission which recommended that there be an inquiry into Vincent Berg‘s claims that he was an overseas trained doctor. It would appear that investigations indicated that his degrees had not been awarded from the institutions he claimed to have attended. It is also alleged that he forged various documents and deceptively claimed payments. The allegedly forged documents include a certificate of good standing purportedly issued by the Medical Board of Queensland in 2001 stating that Dr Vincent Berg was registered with the Board with conditions that he practice only in psychiatry with a licence for private practice. [3] The charges of causing bodily harm arose from incidents in Townsville when Vincent Berg was employed at the Townsville Hospital as a non training psychiatry registrar. The allegations are that he treated patients with a mental illness and changed their medication causing them to suffer adverse events. The sexual offences are also alleged to have occurred while he was purporting to treat patients at the hospital including a 15 year old boy. History of the Charges [4] This matter has a long history of delay. The original offence of indecent treatment of a child was alleged to have occurred in 2000 however the complaint to police was not made until 2005. A reference solely in respect of that offence was filed with the Mental Health Court in November 2006. The following is a brief summary of the matter‘s history: - 7 November 2007: the matter was listed for hearing. Vincent Berg did not attend and the original reporting -- 3 of 14 -- 4 doctor, Dr Braganza was unable to attend. The matter was adjourned to the following year. - 14 February 2008: the matter was listed for hearing. Vincent Berg did not attend. The matter was adjourned to a date to be fixed for defence to inform Vincent Berg of the proceedings and to allow Vincent Berg to represent himself. - 12 June 2008: the application was heard by the Mental Health Court. Defence lawyers were given leave to withdraw and the matter was dealt with in the absence of Vincent Berg. The reference was struck out. - 25 July 2008: A stay application under the UCPR was heard before the Mental Health Court. Vincent Berg was not present. The stay application was refused. - 10 October 2008: The Court of Appeal dismissed an appeal brought by Vincent Berg. - 10 November 2009: The High Court of Australia refused a special leave application by Vincent Berg as it was brought out of time and inevitable that the application would be dismissed. - 13 April 2010: a new reference was filed in the Mental Health Court including the initial charge of indecent treatment of a child under 16 as well as 36 new offences that Vincent Berg was charged with in 2009. - 12 July 2010: the new reference was mentioned before the Mental Health Court. - 11 November 2010: the matter was mentioned again in the Mental Health Court and the solicitors for Vincent Berg were given leave to withdraw. - 2 December 2010: The hearing of the matter was adjourned as Vincent Berg‘s new legal representatives had only just been briefed and had not received all material. - 7 February 2011: Vincent Berg‘s legal representatives were given leave to withdraw.‖ [7] The reference to the Mental Health Court was dated 12 April 2010 and was in these terms: ―I am making respectful request to process and file this Reference with accompanied documents that Mental Health Court could determine Vincent Victor Berg‘s fitness or unfitness for trial and its temporary or permanent nature under sections 270 and 271 of the Act. (Under section 268(1) of the Act, the matter of soundness of mind at the time of the alleged offences cannot be considered by the Mental Health Court as the perpetration of all alleged criminal offences has been categorically denied).‖ (AB 145) [8] The relevant provisions of the Mental Health Act 2000 (Qld) (the Act) are as follows: -- 4 of 14 -- 5 ―267 Mental Health Court to decide unsoundness of mind and diminished responsibility (1) On the hearing of the reference, the Mental Health Court must— (a) decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and (b) if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed—decide whether the person was of diminished responsibility when the alleged offence was committed. … (2) This section has effect subject to sections 268 and 269. 268 Reasonable doubt person committed offence (1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence). (2) However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person‘s mental condition. … … 270 When Mental Health Court must decide fitness for trial (1) The Mental Health Court must decide whether the person is fit for trial if— (a) the court decides the person was not of unsound mind; or (b) under section 268 or 269, the court must not decide whether the person was of unsound mind when the alleged offence was committed. … 271 Mental Health Court to decide whether unfitness for trial is permanent If the Mental Health Court decides the person is unfit for trial, the court must also decide whether the unfitness for trial is of a permanent nature.‖ Finding as to Soundness of Mind [9] Paragraphs [8]-[11] of the decision below are ambiguous as to whether or not the Mental Health Court is determining the question of soundness of mind, but it -- 5 of 14 -- 6 appears from the summary of orders, set out above, that the Court did determine that the appellant was not of unsound mind at the time of the alleged offences. Having regard to the provisions of s 268(1) of the Act, the Mental Health Court ought not to have made that determination, in circumstances where the defendant denied committing the offences with which he is charged. It is true that there was little organised material before the Court below as to the basis of the dispute, but, largely in the psychiatric reports, there are enough indications that the defendant does assert that he was qualified at all material times, and did not engage in the sexual offending with which he is charged. In those circumstances it seems to me there was sufficient before the Court below to establish that there was a doubt, which was not fanciful, that the appellant committed the offences with which he is charged.1 In those circumstances, s 268(1) operated to prevent the Court making a finding of soundness of mind. To this limited extent, the appeal should succeed. Fitness for Trial [10] The fact that the Mental Health Court wrongly determined that the appellant was of unsound mind at the time of the alleged offences, does not mean that its thorough and careful determination as to fitness for trial should be overturned. To the contrary, having regard to the provisions of s 270(1)(b) of the Act, and the contest raised by the appellant as to his having committed the offences, the Mental Health Court was obliged to determine whether the appellant was fit for trial. The fact that the Court embarked on this exercise via s 270(1)(a), when it ought to have proceeded via s 270(1)(b) does not in any way affect the substance of what followed. This Court should proceed on the basis that the material before the Court below, and before us, established a reasonable doubt that the appellant committed the offences with which he is charged, within the meaning of s 268(1), as interpreted in Re RWC and Re Hansen. [11] The appellant appeals against the Mental Health Court‘s finding that he is fit for trial. I proceed on the basis that such an appeal is by way of rehearing. That is the view generally taken, see the discussion in McDermott v The Director of Mental Health; ex parte A-G (Qld).2 There was discussion in McDermott, as there has been in other cases,3 about whether the nature of an appeal from the Mental Health Court is an appeal by way of rehearing, or an appeal in the strict sense. This Court has, in the cases just cited, refused to determine the point, because, for various reasons, it had not been fully argued. That reason applies here too. The appeal was heard on the papers and the appellant wrote his own outline. In my view, in the absence of an authoritative decision to the contrary, I should proceed on the basis that the appeal is by way of rehearing. Psychiatric Evidence Below [12] Three psychiatrists gave evidence before the Mental Health Court. One was Dr Ziukelis, who had been treating the appellant for some 16 months at the time of the hearing (t 7, l 1). In that time he had seen the appellant on nine occasions (t 25, l 18), the first for over an hour, and the subsequent consultations were in the 1 This was the test established by Wilson J in Re RWC [2002] QMHC 15 [4] and [16], adopted by Holmes J, as she then was, in Re Hansen [2005] QMHC 20 [20]. 2 [2007] QCA 51 [3], [34], [74]. 3 Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269, 270; Hansen v DPP [2006] QCA 396, and Reid v DPP (Qld) [2008] QCA 123 [49]. -- 6 of 14 -- 7 order of half an hour each (t 7, l 12). As well, the Mental Health Court heard evidence from independent psychiatrists, Dr Kovacevic and Dr Beech. Dr Kovacevic had seen the appellant on 5 February 2010 for the purpose of examining him for the Court proceeding. The appointment lasted about 90 minutes and a written report was produced. Dr Beech saw the appellant on three occasions for the purpose of examining him for the Court proceeding. The consultations lasted about one hour each, and he produced a written report. [13] The Mental Health Court was assisted by Dr J M Lawrence and Dr E N McVie. Both Drs Kovacevic and Beech, as well as the two assisting psychiatrists, were of the view that the appellant was fit for trial. The only psychiatrist who did not express that view was Dr Ziukelis and, as will be seen, he did not distinctly express the view that the appellant was not fit for trial. Dr Ziukelis [14] Dr Ziukelis did not produce a written report for the Court proceedings. He declined a request to do so in a letter to the Registrar of the Mental Health Court dated 12 October 2010. He said: ―In regard to the matter of a treating doctor‘s report I wish to decline the request on the basis that, as the treating doctor, it is preferable that my involvement with the patient be on a strictly clinical level. Having said this I am nevertheless able to state the following without compromise to the clinical relationship. The diagnosis is that of chronic Paranoid Schizophrenia. Treatment is as stated in the previous confidential psychiatric report. Currently the patient is considered to be fit for trial. There is a likelihood of decompensation during the trial process. This would require review of capacity at such time as pertinent symptoms become evident.‖ [15] Dr Ziukelis wrote a letter to Legal Aid Queensland dated 27 October 2010 referring to his previous opinion that the appellant was fit for trial. In this letter he said: ―Today I find that his new legal representatives … are known with certainty by Mr Berg to be KGB Agents. The means of acquiring this knowledge is not revealed by Mr Berg. It is unlikely that he will now be candid with his counsel. As the problem is due to symptoms of mental illness I consider he is no longer fit to attend Court on this basis as he cannot properly instruct counsel.‖ [16] The reference in the letter dated 12 October 2010 to a ―previous confidential psychiatric report‖ is not a reference to a report prepared for any purposes other than governmental purposes. Dr Ziukelis has simply filled in a Queensland Government form. It is dated five months after Dr Ziukelis began treating Mr Berg. It records his diagnosis of three conditions: chronic paranoid schizophrenia, depression, possibly, secondary to schizophrenia, and agoraphobia. It is of little assistance in the present context. Likewise, there was before the Mental Health Court a form filled in by Dr Torktorabi, a general practitioner practising on the Gold Coast. It is apparently a Centrelink form and records the three above conditions as -- 7 of 14 -- 8 being suffered by Mr Berg. It cannot properly be regarded as a report, and as it is from a general practitioner rather than a psychiatrist, it is of even less assistance in the present context. [17] Dr Ziukelis made it very clear that he was limited in the assistance he could give the Mental Health Court because of his role as a treating doctor. He acknowledged that he had not spoken to Mr Berg about the charges he faces in any detail (t 10, l 55). Further, early in his evidence he substantially qualified his role as a treating doctor saying this: ―Well, my role is that of the treating psychiatrist. I understand that?-- So, that – I am led, essentially, by what the patient wishes to reveal to me--- Yes?-- rather than conduct an investigation as such. Yes. I hope I can ask this question well, would it be fair to say that it‘s somewhat difficult for you to have been asked to come here to give evidence today about your patient?-- It‘s difficult in that it risks loss of trust and becoming perhaps incorporated into the delusional system as has happened to one previous treating psychiatrist. Would it be fair to say then – and I don‘t mean to be critical at all, but would it be fair to say that you haven‘t exhaustively reviewed in a forensic sense the question of whether Mr Berg is fit for trial?-- That‘s certainly true‖ (t 11, ll 1-20). [18] Later he said this: ―… Are we seeing the KGB, as it were, being used as an excuse to avoid what is the, as it were, ‗the dark day‘?-- I‘m – I‘m not in a position to verify that. I – as the treating doctor, I‘m inclined to – to accept the voracity [sic veracity] of the delusion, or the delusional nature of these things‖ (t 16, l 50). ―Doctor, … is it essential for the therapeutic relationship to work that you, … have to accept what it is that he says and not, as it were, being like the Prosecutor, sort of, questioning and cross-examination [sic] him about everything that he says to see whether he--?-- Well, within reason. Yeah‖ (t 18, l 8). [19] It is fair to say that questions were raised as to the efficacy and thoroughness of Dr Ziukelis‘ treatment of the appellant. Dr Ziukelis could give surprisingly little information about his patient‘s illness. He said that the drug treatment he prescribed for his patient was the same as that which had been prescribed by someone else when Dr Ziukelis first saw the appellant. He was not sure who had initiated the treatment (t 7, l 50). He thought that his patient was not improving on that drug regime (t 8, l 5; t 10, l 15). However, he did not see any benefit in changing the regime (t 9, l 5). He could not say whether or not the appellant had been treated with other antipsychotic drugs in the past (t 12, l 15). Dr Ziukelis had never questioned whether or not his patient was taking the medication he prescribed (t 23, l 30). [20] Whenever he sees the appellant he always sees him with Andreas Berg, who both the appellant and Andreas Berg say is the appellant‘s adopted son. And it is -- 8 of 14 -- 9 Andreas Berg who does most of the talking ―by far‖ at those consultations (t 25, ll 20-30). [21] He was unable to give much detail about the delusions from which his patient suffered (t 9, l 10-30). This was so even though it was ―mostly his persecutory delusions‖ (t 10, l 40) which Dr Ziukelis thought would make it difficult for the appellant to participate in a trial. [22] Specifically as to Mr Berg‘s ability to participate in a trial, Dr Ziukelis conceded that he could give instructions as to whether or not the charges against him were true or false, and give reasons to support his contentions in that regard (t 14, l 50 – t 15, l 15). His opinion was that the appellant understood the charges against him ―at a rational or cognitive level‖ (t 18, l 50). And further that he understood what people tell him, reserving the question of whether or not he agrees with it or not (t 18, l 58). He stopped short of saying that his decision as to his plea would be a result of his illness: ―I – I can‘t say for certain as to whether his plea would be entirely influenced by rational understanding of the charges and so forth, or whether he would be influenced by delusional beliefs and – and, therefore alter the plea or modify it in some way‖ (t 19, l 25). He thought that because of his concentration and memory, the appellant would need to be prompted during the course of judicial proceedings in order to follow them (t 19, l 29). However, in terms of whether he could follow the course of proceedings in a general sense, he would not say that the appellant could not. He said, ―That – that‘s very hard to – to answer with any certainty. Yeah, I don‘t think we can make predications [sic] about that with certainty‖ (t 19, l 35). He thought the appellant‘s level of distractibility and inattention was considerable (t 19, l 48). He could not say that the appellant was incapable of exercising his right of challenge and could not say that his illness would prevent him making a defence (t 19, l 48 – t 20, l 2). He thought that he might become ―more unwell due to the pressure of the proceedings and that he may not be able to discharge himself, shall we say, in his own interest as a result of his symptoms‖ (t 13, l 50). [23] When taken to his letter of 27 October 2010 (extracted above) and asked whether or not the appellant was capable of providing counsel with necessary instructions and understanding counsel‘s advice, he again stopped short of saying that the appellant did not have this capacity. Instead he said, ―I have reservations about the level of his capacity to do that‖ (t 20, l 12). When asked whether or not the appellant could endure a trial without serious adverse consequences to his mental health, Dr Ziukelis said that matter was not predictable (t 20, l 18). Dr Kovacevic [24] Dr Kovacevic said that he thought the appellant failed to co-operate fully with him in examination (t 30, l 20). He said that while the appellant reported ―quite extensive psychopathology‖, he did not see many signs of this in the course of the interview (t 32, l 1 and l 60). He explained in detail why the results of psychological testing showed that the appellant was giving false answers in order to appear to be psychotic (t 37, l 25 – t 38, l 45). To Dr Kovacevic, the longitudinal history given by Mr Berg as to the course of his illness over many years was unusual and more consistent with someone exaggerating symptoms than with a genuine illness (t 36, ll 25-35). -- 9 of 14 -- 10 [25] Dr Kovacevic was influenced by a series of past hospitalisations during the course of which there had not been an acceptance of psychotic symptoms or signs (t 35, l 40). Further, he was influenced by past claims the appellant had made to Dr F Varghese in 2008. The circumstances of these encounters are outlined in Dr Beech‘s report at AB 125-127. In the course of assessment for the Mental Health Court proceedings in 2008, Dr Varghese had come to the conclusion that the appellant was fit to plead. He was asked to see him a second time, and was convinced that his clinical presentation was one of medical emergency consistent with a severe psychotic depression. That examination took place on 6 February 2008. On that occasion the appellant presented as being ―downcast with apparent psychomotor retardation, a profound lack of spontaneity of movement and extremely slow responses with little spontaneity of speech. His mood was pervasively depressed and his affect was dejected and restricted. There was poverty of thought and slowness of thought‖ (AB 127). Some five days later a Queensland Police surveillance tape showed Mr Berg walk out of his Gold Coast unit, body surf and swim before walking back to his home. Later that day he was filmed interacting in a public library and shopping. In his report Dr Beech describes the easy, fluid manner in which the appellant moved in the surveillance video and how animated, mobile and active he was. [26] In a careful report, and in his evidence, Dr Kovacevic gave his opinion that the appellant was fit for trial. He said that he found little evidentiary basis for the delusions claimed by the appellant (t 34, l 40) and was surprised that the treating psychiatrist, Dr Ziukelis, was not able to give detailed descriptions of the delusions and delusional systems which the appellant apparently held (t 41, ll 1-52). He found the reports of hallucinations ―lacking credibility‖ (t 45, l 5). Dr Beech [27] Dr Beech made a lengthy and detailed report to the Court. He too had regard to testing by psychologists which showed, ―an unsophisticated attempt to exaggerate and magnify his claimed level of dysfunction‖ (AB 126 and following). He makes reference to the appellant‘s encounters with Dr Varghese and the police video of 13 February 2008. His report concluded that he could not say with ―any reasonable confidence‖ that Mr Berg suffered from a severe mental illness. He was of the view that Mr Berg understood, or could be made to understand, the nature of the charges against him and was able to both plead to them and offer a defence to them. His view was that Mr Berg could understand the effect of evidence against him and could offer instructions. He could not reliably inform the Court that it was more likely than not that the conditions from which Mr Berg suffered would seriously impair his ability to concentrate and follow a trial and give instructions during the course of the trial. [28] He allowed that Mr Berg was depressed and thought it possible that his mood might be adversely affected by a trial. However, he considered that the trial process would not seriously adversely affect his condition while he remained under the care of a psychiatrist (AB 133-134). [29] In evidence Dr Beech explained in detail the inconsistencies in psychological testing administered to the appellant, and inconsistencies in tests he administered, which convinced him that the results of these tests could not be explained on clinical grounds (t 57, l 10). He described the appellant‘s inconsistent presentation at interview (t 56), and explained that the history of Mr Berg‘s illness, said to date -- 10 of 14 -- 11 from a first presentation at the age of 17 years, is inconsistent with ―the natural progression of recurrent major depression, schizophrenia, dementia‖ (t 58, ll 1-25). In fact, he said that the reported course of the illness is more consistent with ―someone with an adjustment disorder who‘s depressed by his circumstances who is now elaborating psychotic symptoms and evolving them to meet a purpose‖ (t 58, l 25). Arguments in support of the Appeal [30] The Notice of Appeal stated the grounds as: ―Error of law has been made because decision that the Appellant ‗was not of unsound mind when the alleged offences were committed‘ must not have been made. Section 268(1) of the Mental Health Act 2000 (Qld) prescribes that ‗The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence)‘. Also, this decision has been made without application of section 268(2) of the Mental Health Act 2000 (Qld) and without any consideration of this matter during the hearing. Her Honour Justice Lyons reasoned that Dr Ziukelis, Consultant Psychiatrist, who testified that the Appellant was unfit for trial, ‗had no background information and very little, if any, collateral material‘. The crucial fact that, prior to giving his testimony in the Court, Dr Ziukelis was in possession of the same background information and collateral material as the one available to the Mental Health Court, assisting psychiatrists and other psychiatric experts, has been overlooked. The crucial fact that, Dr Ziukelis‘ evidence is not based on the Appellant‘s ‗self report with very little collateral material in support‘ as Her Honour Justice Lyons reasoned, but ‗on the basis of assessments and available medical evidence‘ as was clearly stated in Dr Ziukelis‘ report, has been overlooked. The oversight of these crucial facts concerning Dr Ziukelis‘ evidence has directly resulted in the Mental Health Court erroneous decision that the Appellant ‗is fit for trial‘.‖ [31] The appellant advanced some 19 points at paragraphs 2(a)-(s) of his written submissions which are said to be factual errors of reasoning. [32] Paragraph 2(a) concerns the Mental Health Court‘s finding that Mr Berg was not of unsound mind at the time of the commission of the alleged offences. For the reasons given above, that finding ought to be set aside. [33] Paragraphs 2(b), (c), (d), (e), (f), (g), (i), (j), (k), (l), (n), (o), (q) and (r) are all essentially complaints that the Mental Health Court preferred the evidence of Drs Kovacevic and Beech to that of Dr Ziukelis, or acted on the basis of the opinions of Drs Kovacevic and Beech. As I have endeavoured to demonstrate by the above summary of psychiatric evidence, the Mental Health Court was well entitled to prefer Drs Kovacevic and Beech as the only independent experts who gave evidence at the hearing. There were aspects of Dr Ziukelis‘ evidence which -- 11 of 14 -- 12 were surprisingly vague, for example his lack of knowledge of the delusions suffered by his patient, and aspects of his treatment which seemed somewhat casual, and his knowledge of the history of his patient‘s drug treatment, for example. The Mental Health Court was entitled to take that into account in assessing Dr Ziukelis‘ opinion. The Mental Health Court was also entitled to take into account, as Dr Lawrence pointed out, that Dr Ziukelis‘ evidence actually fell short of unequivocally stating that the appellant was presently unfit for trial. (a) Particularly as to grounds 2(c), (g) and (r), the Mental Health Court was well entitled to take account of the fact that Dr Ziukelis was a treating doctor; did not purport to present an independent opinion but volunteered that his assistance to the Court was limited by the fact that he was a treating doctor; had not attempted to assess the veracity of his patient in a forensic setting, but to treat him, and had not made any formal or disciplined assessment as to his fitness for trial. (b) In paragraphs 2(e) and (f), the appellant complains that some of the material before the Mental Health Court, and relied upon by the independent psychiatrists, was somewhat dated. There was no evidence given by any witness that the earlier tests and history were irrelevant to either the assessment of the independent psychiatrists or to the determination of the Mental Health Court. There was abundant evidence that Drs Ziukelis, Kovacevic and Beech had assessed the appellant very recently before the hearing. Drs Kovacevic and Beech administered some short formal testing of him when they examined him. In the context of a 58 year old man complaining of an illness which first manifested when he was 17, it is hardly surprising that historical material was relevant. (c) Paragraphs 2(i) and (j) concern the Mental Health Court‘s conclusion that the appellant was able to understand the charges he faced, particularly having regard to Dr Beech‘s evidence. Dr Ziukelis had not inquired in any detail into the charges the appellant faced. Dr Beech gave evidence that although he did not go through all 37 charges with the appellant, he went through the ones which he thought were indicative of the nature of the charges, or the most important ones, and he formed the view that the appellant understood the charges and that the appellant was able to defend them because he was able to give Dr Beech an account of how he would dispute the charges made. It seems to me that the statements in the reasons given by the Mental Health Court are all soundly based on the evidence before that Court. (d) The arguments at paragraphs 2(k) and (l) are directed towards statements of the Mental Health Court to the effect that there was objective support for Drs Kovacevic‘s and Beech‘s view that the appellant was not unfit for trial and that his delusional beliefs about his lawyers would not prevent him from giving instructions. The reasoning of the Mental Health Court was perfectly orthodox. It was soundly based on the evidence of the two independent psychiatrists, and supported by the views of the assisting psychiatrist in circumstances where the views expressed on the matter by the appellant‘s treating psychiatrist were tentative, although to the contrary. There is nothing to show that the Mental Health Court erred in preferring the evidence of Drs Kovacevic and Beech. -- 12 of 14 -- 13 (e) Paragraphs 2(n) and (o) take issue with the Mental Health Court‘s recording of the submissions made on behalf of the Crown. There is nothing unorthodox in the Court recording those submissions, and indeed acting consistently with them. The submissions were soundly based on the evidence which the Court accepted, and was entitled to accept. (f) So far as paragraph 2(r) is concerned, the appellant challenges the independence of one of the assisting psychiatrists. No challenge was raised at the hearing and it is too late to raise that matter now. In any event, there is nothing more than vague assertion put forward by the appellant, not by evidence, but in submissions. [34] In summary as to these arguments, there was an abundance of evidence before the Mental Health Court upon which it could reach the conclusion that the appellant was fit for trial. The only dissenting voice amongst the psychiatrists was that of Dr Ziukelis. Not only did Dr Ziukelis himself qualify his ability to assist the Court, as outlined above, he did not unequivocally state that the appellant was unfit for trial. [35] Accepting as I do that this appeal is by way of rehearing, this Court is obliged to ―give the judgment which in its opinion ought to have been given in the first instance,‖4 whilst observing the limitations that exist by reason of this Court‘s not having actually seen and heard the witnesses, and otherwise having proceeded wholly on the record. No doubt it was of advantage to the Mental Health Court to see and hear the psychiatrists who gave evidence before the Court and to receive, personally, the assistance of the two psychiatrists assisting. There is nothing to indicate that this advantage was misused in any way. Indeed, having regard to the substance of the evidence given by all the witnesses, it seems to me that the decision of the Mental Health Court was soundly based, and indeed correct. The findings of the Mental Health Court are based on the evidence given by Drs Beech and Kovacevic, and in accordance with the views of the assisting psychiatrists. There is nothing which would give this Court reason to question the Mental Health Court‘s preference for the views of these psychiatrists over the evidence given by Dr Ziukelis. [36] Paragraphs (2)(h), (m) and (p) of the appellant‘s outline of argument take issue with the Mental Health Court‘s observing that the appellant‘s dealing with the criminal charges he faces, is, to date, consistent with his being able to maintain his innocence and assert his rights. The Mental Health Court was well entitled to take account of the consistent and vigorous defence of his rights mounted by the appellant in the proceedings to date and I note that continues in the substantial, detailed, well organised and coherent written submissions received by this Court advancing the appellant‘s position. [37] Finally at paragraph 2(s), the appellant complains that the Mental Health Court acted on the basis that there was no evidence that the proceedings on the reference to it had unduly affected the appellant‘s mental state. There was no such evidence before the Mental Health Court and it was entitled to act on that basis. To assert otherwise mistakes the onus of proof. The appellant cannot, as he seeks to do, introduce evidence to the contrary now by way of a sentence or two in written submissions. 4 Dearman v Dearman (1908) 7 CLR 549, 561; cited in Fox v Percy (2003) 214 CLR 118, [23]. -- 13 of 14 -- 14 [38] At paragraph 3 of the written outline on behalf of the appellant, submissions are made as to the unsound mind point. That has been dealt with. Submissions are also made as to the finding that the appellant is fit for trial. The arguments addressed at this part of the written submissions re-agitate the point that the Mental Health Court was wrong to not prefer Dr Ziukelis. As I have outlined above, I do not think there can be any successful complaint by the appellant on this basis. Dr Ziukelis made it very clear in his evidence, and in the letter dated 12 October 2010, that he proceeded on the basis that as a treating psychiatrist, he accepted the appellant‘s report of symptoms, and in particular delusions, and did not question the veracity of what his patient reported to him. While that might be an appropriate approach to take as a treating psychiatrist, it renders the evidence he gave to the Mental Health Court of substantially less assistance than the evidence of the independent psychiatrists, particularly in this case where the Crown case was based upon a contention that the appellant falsely reported and exaggerated symptoms. [39] Dr Ziukelis at no point, either in his letters or in his evidence, makes clear what collateral information he had read before giving evidence. This Court cannot act on assertions made about that by the appellant. However, the relevant point is that Dr Ziukelis made it perfectly clear that the opinions he gave were based, not on a consideration of all the material, including the collateral material, but on his observations as a treating psychiatrist, in which capacity he accepted the veracity of the appellant‘s reports of delusions. This is no doubt a valid basis to criticise his opinions in a forensic (as opposed to treatment) setting. Both assisting psychiatrists properly brought that to the attention of the Court below. It was quite proper for the Court to act on the basis of that advice. [40] The order below declaring that the appellant was not of unsound mind at the time of the alleged offences should be set aside. Otherwise, the appeal ought to be dismissed. I note that the appellant seeks orders enlarging his bail and removing the reporting conditions attaching to it. The first order sought is unnecessary, and the second quite inappropriate. -- 14 of 14 --