Berg v Director of Public Prosecutions [2011] QCA 302

[2011] QCA 302 COURT OF APPEAL WHITE JA Appeal No 9360 of 2011 MHC No 90 of 2010 VINCENT VICTOR BERG Applicant and DIRECTOR OF PUBLIC PROSECUTIONS Respondent BRISBANE DATE 26/10/2011 ORDER WHITE JA: Mr Berg has applied for a stay of the orders made by the Mental Health Court on 27 September 2011 that he was fit to stand trial and allied orders.1 Mr Berg has been charged with 37 offences including one count of indecent treatment of a child under 16 pursuant to s 210(1)(a) of the Criminal Code which allegedly 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 and 28 counts relating to offences of fraud, attempted fraud and uttering forged documents. Those offences are alleged to have occurred between June 1999 and June 2004. The charges arise out of the allegation that Mr Berg has falsely claimed to be a Russian trained psychiatrist. They came to light as a result of investigations carried out during the Queensland Public Hospitals Commission of Inquiry in 2003. Those investigations suggested that Mr Berg's degrees had not been awarded from the institutions he claimed to have 1 Re Berg [2011] QMHC. -- 1 of 8 -- 2 attended in Russia. He is alleged to have forged documents and deceptively claimed payment. The charges of causing bodily harm arose from the period when Mr Berg was employed at the Townsville Hospital as a non-training psychiatry registrar. He was alleged to have treated patients with a mental illness and changed their medication causing them to suffer adverse events. The sexual offences are alleged to have occurred while he was purporting to treat patients at the hospital including a 15 year old boy. Mr Berg denies the offences. A committal hearing was set for 11 July 2006 but was adjourned to the end of July. Mr Berg consulted psychiatrists. His then solicitor filed a reference in the Mental Health Court in November 2006 in respect of the offence of the indecent treatment of a child under the age of 16. Reports were prepared by psychiatrists during 2007. The hearing date was adjourned from time to time. That reference was struck out in June 2008. Mr Berg appealed interlocutory orders to this Court without success and unsuccessfully sought Special Leave from the High Court. On 14 May 2009 Mr Berg was charged with the balance of the offences. On 13 April 2010 Mr Berg self-referred to the Mental Health Court the 37 charges. The reference was finally heard on 4 May 2011. As related in the reasons for judgment2 the matter was adjourned to 31 August 2011 to allow Mr Berg's son (who had appeared on his behalf) sufficient time to consider the written submissions from the Director of Public Prosecutions dated 13 May 2011 and to formulate submissions in response on behalf of Mr Berg which were received on 10 July 2011. The question for the Mental Health Court's decision was whether Mr Berg was fit for trial pursuant to s 270(1)(a) of the Mental Health Act 2000. The Mental Health Court had heard no evidence that Mr Berg was of unsound mind when the offences were committed and concluded that he was not of unsound mind. The Mental Health Court concluded that Mr Berg was fit for trial and proceedings should continue according to law. Mr Berg's application for a stay of those orders was refused by the Mental Health Court on 2 Re Berg [2011] QMHC at [7]. -- 2 of 8 -- 3 30 September 2011. An application for a stay had been made on behalf of Mr Berg on 27 September when the decision was handed down but on an erroneous understanding of the stage which the committal proceedings had reached. It was thus re-listed for further consideration. Committal proceedings on the indecent treatment charge have been arranged for this coming Friday, 28 October 2011. In an exchange of e-mails between the relevant DPP officer at Southport, where the committal is to take place, and Mr Berg's solicitor, dated 3 October and 13 October respectively, some 10 witnesses were required for cross-examination in the Southport Magistrates Court on the committal. Three civilian witnesses have been arranged in accordance with that request and will travel from Townsville to the Gold Coast. Mr Berg filed his notice of appeal in respect of the Mental Health Court orders and his application for a stay of those orders on 14 October 2011. In support of the stay application Mr Berg has filed an affidavit containing a mixture of submissions and some assertion and opinion. By letter to the Registrar dated 21 October 2011, to which he attached an outline of submissions, Mr Berg explained that he was unable to retain legal representation for the stay application. He wrote: "I am incapable of representing myself in the Court due to an ongoing mental illness (schizophrenia accompanied by depression), and also spending sufficient time in a crowded courtroom due to agoraphobia in the form of unmotivated fear of crowded places." In that circumstance he applied for leave to have his application determined without any appearance by himself or another and to present his argument solely in writing. By a further letter dated 22 October 2011 to the Registrar Mr Berg provided a copy of a document appointing his son, Andreas Berg, as his attorney with an enduring power. The registrar advised Mr Berg that he could rely solely on his written outline of argument on the stay but advised him that at an oral hearing parties have the opportunity to put their case orally to the Court and address matters which might arise in the course of that hearing. He noted that the respondent DPP had briefed counsel to appear who would have an opportunity to put further oral argument. -- 3 of 8 -- 4 Mr Berg responded, that in addition to his mental illness, as described in his earlier letter, his health had lately deteriorated and he was "incapable of travelling to Brisbane". His son, Andreas Berg, was also unable to appear on his father's behalf as he has a prior commitment. He sought that the respondent be similarly confined to written submissions. The registrar responded that the respondent would not be so confined. The hearing has proceeded this morning on the written materials provided by Mr Berg. Mr S Vasta has appeared for the respondent to oppose the granting of a stay. A question has arisen as to the source of the power of this Court to order a stay of an order of the Mental Health Court. Mr Berg has applied under r 761 of the Uniform Civil Procedure Rules but argues that, by a combination of s 259 and s 337(4), the appeal to this Court operates as a stay of the criminal proceedings, including the committal. Mr Vasta submits that the inherent jurisdiction provides a sufficient source of power. By s 259 of the Mental Health Act: "On the reference being made, proceedings for the offence alleged to have been committed by the person are suspended until the Mental Health Court has made a decision on the reference." By s 334 the person to whose mental condition the decision relates may appeal to the Court of Appeal against a decision of the Mental Health Court. Procedural provisions, generally comparable to the rules in ch 18 of the UCPR, follow. By s 336 the procedure for the appeal is to be in accordance "with the rules of court applicable to the appeal or in accordance with the directions of the Court of Appeal." In deciding an appeal from the Mental Health Court, the Court of Appeal may, by s 337, confirm or set aside the decision appealed from. If it sets aside the decision this Court may remit the matter to the Mental Health Court or make a decision the Mental Health Court could have made on the matter or a combination of both. By s 337(4) such a decision "is taken, for this Act (other than this part), to be that of the Mental Health Court". In that circumstance, Mr Berg contends, s 259 of the Mental Health Act would apply and the proceedings for the offence are suspended until the appeal to this Court is heard and determined. -- 4 of 8 -- 5 Part 1 of ch 18 of the UCPR, which concerns appeals to the Court of Appeal applies to a decision of "another body from which an appeal lies to the Court of Appeal".3 In Button v Director of Mental Health4 this Court applied the relevant provisions of the UCPR in ch 18 to appeals from the Mental Health Court where the Mental Health Act was silent. Plainly the provisions of s 259 of the Mental Health Act refer only to a reference to the Mental Health Court itself. Once a decision of soundness of mind and/or fitness is made the suspension is lifted. There is no basis for reading that provision as applying to appeals to this Court. The legislature must be taken to have included the relevant rules applicable to appeals in this Court if provision were not made in the Mental Health Act itself. Rule 761(1) provides that the starting of an appeal to this Court does not stay the enforcement of a decision under appeal. The onus of proof rests upon an applicant for a stay to demonstrate that it is an appropriate case for a stay. In Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd5 Keane JA pointed out that:6 "...it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments...should not be treated as merely provisional,... generally speaking, courts should not be disposed to delay the enforcement of court orders. The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective." If, however, there is a risk that the appeal may prove abortive if the appellant succeeds and a stay is not granted "courts will normally exercise their discretion in favour of granting a stay."7 In Fuller & Cummings v DPP (Cth)8, McHugh J queried whether a stay was apt for committal proceedings pending the hearing of a special leave application. It is the criminal trial which must be shown to be rendered unfair by the failure to halt the committal. Mr Berg contends that although a committal proceeding is administrative he should be able to be present, capable of following the hearing in a general sense, and instructing counsel if such 3 Rule 745(1)(C). 4 [2005] QCA 67. 5 [2008] 2 Qd R 453. 6 At 455. 7 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. 8 (1994) 68 ALJR 611. -- 5 of 8 -- 6 a need arises, but without damage to his health. It is an aspect of Mr Berg's reference that proceedings against him should be forever stayed because he is unable to tolerate, consistently with his health, his presence in the courtroom. As mentioned, on 22 October 2011, Mr Berg sent a copy of documents demonstrating the appointment of his son, "and carer approved by Centrelink" as his attorney with an enduring power of attorney. He also attaches an authorisation in the following terms: "I, Vincent Victor Berg, Due to my health condition and insufficient ability to represent myself in variety of social and legal issues, due authorise my son and carer approved by Centrelink ANDREAS VICTOR BERG, 09.09,1982, to represent me in any mattes without limitation (including any legal matters, instructing my legal representatives, signing any documents and making any applications and statements, including those in the courts, on my behalf.) I confirm all the statements and documents by my son ANDREAS VICTOR BERG already issued on my behalf and in regard to me. This authorisation has no time limit and any other limitations and is valid until further notice." It was signed on 22 September 2011 by Mr Berg and his son and witnessed by a Justice of the Peace. There is no reason why Mr Andreas Berg cannot represent his father and carry out his instructions in the course of any committal proceeding. He appeared on behalf of his father before the Mental Health Court and is seized of all the issues. Furthermore, Mr Berg is represented by solicitors for the committal. The purpose of ascertaining if a person is fit for trial is to ensure that the person has a fair trial. In Kesavarajah v The Queen9 Mason CJ, Toohey and Gaudron JJ said:10 "In Reg v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice.11 Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard12, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the 9 (1994) 181 CLR 230. 10 At 245. 11 [1958] VR 45 at p 48. 12 (1836) 7 Car & P 303, at p 304; 173 ER 135, at p 135. -- 6 of 8 -- 7 right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge." The written submissions which Mr Berg has sent to the Court demonstrate that he can comply with each of those minimum standards. The magistrate has power to make whatever arrangements seem appropriate to excuse him from attendance if he is satisfied that Mr Berg's interests are being adequately protected. As McHugh J observed in Fuller & Cummings13, if any element of unfairness is alleged to have occurred at the committal stage, then a trial judge can adjourn or stay a trial until there is a proper committal or a voir dire. It requires me, then, to consider briefly the grounds of appeal. In his Notice of Appeal Mr Berg contends that errors of law have been made because the decision that he was not of unsound mind when the alleged offences were committed ought not to have been made. Mr Berg contends that s 268(1) of the Mental Health Act is applicable, namely, that the Mental Health Court must not make a decision under s 267(1)(a) or (b) if the court is satisfied there is reasonable doubt that the person committed the alleged offence. He complains that there was no consideration of this matter during the hearing. The only issue litigated was Mr Berg's fitness for trial. In the absence of material relevant to the question of Mr Berg's mental state at the time of the commission of the offence the subject of the reference, there was no evidence of unsound mind and the presumption of sanity at the time would prevail.14 That is not a promising ground of appeal. The other basis for the appeal appears to be a contention that the Mental Health Court ought not to have rejected the opinion of Dr Ziukelis, Mr Berg's treating psychiatrist, on a number of grounds set out in the Notice of Appeal. All that I would wish to say of that contention is that the opinions of the psychiatrist were subject to detailed scrutiny and analysis. The court closely considered the submissions made on behalf of Mr Berg by Mr Andreas Berg that the 13 (1994) 68 ALJR 611 at 615. 14 Section 26 Criminal Code. -- 7 of 8 -- 8 Mental Health Court should accept the evidence of Dr Ziukelis over that of the other psychiatrists. Her Honour concluded: "It is clear that Vincent Berg is currently being treated by a psychiatrist and is receiving treatment and medication in particular. Dr Ziukelis considers that he is stable and has been so for some time. He is apparently depressed but Dr Ziukelis will monitor the situation during his trial. Having considered the reports of Dr Ziukelis, Beech and Kovacevic as well as the advice of the assisting psychiatrists I am satisfied that on the balance of probabilities Mr Vincent Berg clearly understands the charges he faces and is currently able to give instructions and assert his defence. I am also satisfied that he will be able to endure a trial and that appropriate strategies will be put in place to cater for his reduced ability to concentrate and to monitor his mental health during such a trial."15 No obvious error emerges from the approach of the Mental Health Court to the resolution of the conflicting evidence. I am not persuaded that Mr Berg has promising prospects on his appeal. The committal proceedings may not even be completed before Mr Berg's appeal is determined. It is likely that the balance of the charges will be given a committal hearing before an indictment is presented on the indecent dealing charge. The administration of justice and the public interest demands that this matter, which is now quite old, continue to a conclusion as promptly as can be achieved. I would refuse the application for stay. Order: Application for stay refused. 15 Re Berg [2011] QMHC [91]-[92]. -- 8 of 8 --