SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v Al-Harazi (No 5)Citation: / [2017] ACTSC 61
Hearing Date: / 10 February 2017
Decision Date:
Reasons Date: / 10 February 2017
31 March 2017
Before: / Refshauge J
Decision: / It is decided that Maged Mohammed Ahmed Al-Harazi is not unfit to plead.
Catchwords: / CRIMINAL LAW – JURISIDICTION, PRACTICE AND PROCEDURE – Fitness to plead – conclusions of investigation into the fitness of the accused undertaken – accused not unfit to plead – s 311 of the Crimes Act 1900 (ACT)
Legislation Cited: / Crimes Act 1900 (ACT), ss 311, 312, 312(1), 314(1), 315, 315(1), 315A, 315A(1)(b), 315A(1)(b)(ii),
Crimes (Mental Impairment and Unfitness to be Tried) Act1997(Vic), s 12(2)
Juries Act 1967 (ACT), s 31
Mental Health (Forensic Provisions) Act 1990 (NSW), s12(2)
Cases Cited: / Eastman v The Queen [2000] HCA 29; 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
RvAl-Harazi (No 2) [2016] ACTSC 273
R v Al-Harazi (No 3) [2016] ACTSC 290
R v Bugmy [2009] NSWSC 1215
R v Monaghan [2009] ACTSC 61
R v Presser [1958] VR 45
Texts Cited: / Dan Howard SC and Bruce Westmore, Crime and Mental Health Law in New South Wales (LexisNexis, Butterworths, 2nd ed, 2010)
Parties:
Representation: / The Queen (Crown)
Maged Mohammed Ahmed Al-Harazi (Accused)
Counsel
Mr S Drumgold & Ms E Beljic (Crown)
Mr K Archer (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused)
File Number: / SCC 207 of 2015
REFSHAUGE J:
1. On 21 September 2016, I reserved for investigation under s 315 of the Crimes Act1900 (ACT) a question about the fitness to plead of Maged Mohammed AhmedAl-Harazi. See R v Al-Harazi (No 3) [2016] ACTSC 290.
2. By the time I made my decision to reserve the question for investigation, MrAl-Harazi had already been examined by two psychiatrists retained by his lawyers. The first was DrStephen Allnutt, a well-known and respected consultant forensic psychiatrist who came to the view that he was “suspicious that [Mr Al-Harazi] might have a mental illness” but was “unable to be definitive at this stage”.
3. He sought a further opportunity to re-assess him prior to concluding his opinion. See RvAl-Harazi (No 2) [2016] ACTSC 273 at [33]-[34].
4. I also noted at [36]-[37] that Dr Allnutt recommended that an Arab-speaking psychiatrist should examine Mr Al-Harazi and an Arab-speaking psychiatrist was located.
5. Because of that opportunity, and the uncertainty of the question about MrAl-Harazi’s fitness to plead, I vacated the trial date and adjourned the matter. Subsequently, I received the report from the Arab-speaking psychiatrist, Dr Abdulatif Burhan, the second psychiatrist, and it was on the basis of his comments, where he expressed doubts about Mr Al-Harazi’s ability to follow the course of the proceedings and found that he lacked the capacity to understand the substantial effect of any evidence in support of the prosecution against him, that I vacated the trial date. See R v Al-Harazi (No 3) at[6].
6. Since then, however, I have had two further substantial reports, one from Professor David Greenberg, Consultant Psychiatrist, and one from Dr Allnutt, together with a further email report from Dr Burhan.
7. In summary, both Dr Allnutt and Professor Greenberg conclude that Mr Al-Harazi is fit to plead.
8. Dr Burhan was not so clear. He said:
In terms of meeting the criteria for fitness to plea [sic], I agree that Mr Al-Harazi probably meets all the necessary criteria, but in my opinion from reading the two reports, MrAl-Harazi is still influenced by his delusions which means he is going to respond according to what ‘Allah’ tells him.
9. Subsequently, the matter was listed for hearing of the investigation on 10February 2017.
10. Having considered the three reports, I then concluded at that hearing that Mr Al-Harazi was fit to plead. These are my reasons.
Fitness to Plead
11. In Eastman v The Queen [2000] HCA 29; 203 CLR 1 at 14; [24], Gleeson CJ said:
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial.
12. It is important for a justice system that it be fair and it would undoubtedly be unfair to prosecute and thereafter punish a person who was unable to participate at an appropriate level in the trial. A finding of unfitness to plead constitutes a recognition that the accused person is incapacitated from participating in her or his trial to the requisite level. That is to say, it is a finding that the accused is incapable of participating in the trial at a level which the law regards as the minimum capacity which an accused person must have in order that the trial be fair. Indeed, as Gaudron J said in Eastman v The Queen at 21-2; [62]:
The significance of the question of a person’s fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. Certainly, that is the position where the issue of fitness to plead is raised before or during trial. If a person stands for trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, “no proper trial has taken place [and the] trial is a nullity”. To put the matter another way, there is a fundamental failure in the trial process.
[footnotes omitted]
13. This is the reason that the question of an accused person’s fitness to plead is so important and why care has been taken in this case to ensure that Mr Al-Harazi has been carefully assessed and a proper decision made.
14. Based on the test established by the Supreme Court of Victoria in R v Presser [1958] VR 45 and adopted by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230, s 311 of the Crimes Act sets out the meaning of when an accused is unfit to plead as follows:
311 When a person is unfit to plead
(1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot –
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) give instructions to the person’s lawyer.
(2) A person is not unfit to plead only because the person is suffering from memory loss.
15. Proving that a person is unfit to plead does not follow the usual rules of adversarial proceedings. Thus, s 312 of the Crimes Act provides for presumptions and the onus and the standard of proof. The section provides:
312 Presumption of fitness to plead, standard of proof etc
(1) A person is presumed to be fit to plead.
(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.
(3) The question of a person’s fitness to plead –
(a) is a question of fact; and
(b) is to be decided on the balance of probabilities.
(4) No party bears a burden of proof in relation to the question.
The procedure
16. As noted in [1] above, I reserved a question about Mr Al-Harazi’s fitness to plead for investigation under s 315 of the Crimes Act. That required an adjournment of the trial which I did.
17. The procedure for investigation is not clearly articulated in the Crimes Act. Section315A gives some guidance. It provides:
315A Investigation into fitness to plead
(1) On an investigation into a defendant’s fitness to plead –
(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
(b) if the court considers that it is in the interests of justice to do so, the court may –
(i) call evidence on its own initiative; or
(ii) require the defendant to be examined by a psychiatrist or other health practitioner; or
(iii) require the results of the examination to be put before the court.
(2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant’s privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.
(3) The court must decide whether the defendant is unfit to plead.
(4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12months.
18. This clearly contemplates that the Court will hear evidence about the issue of the accused’s fitness to plead.
19. Ordinarily, that evidence will come from psychiatrists who will have examined the accused. That is not essential, for the evidence may come in another way, such as from the accused’s counsel, as in R v Bugmy [2009] NSWSC 1215 at [13]-[15].
20. The relevant evidence, however, may also come from affidavits made by family members, work colleagues, hospital staff, and other health professionals such as the accused’s general practitioner, or from custodial staff, if they can attest to relevant facts.
21. As also noted above (at [2]-[5]), Mr Al-Harazi’s lawyers had already arranged for reports to be obtained from two psychiatrists. Those reports were rather provisional however, and his lawyers proposed to obtain a further report from Dr Allnutt, which they did.
22. In this case, the Crown, which strenuously opposed a finding of unfitness, sought to have Mr Al-Harazi examined by a psychiatrist it chose. It requested Professor Greenberg to examine him.
23. It can cause practical problems if an accused whose fitness is in question will not co-operate with the psychiatrist. There is not much that can be done if that co-operation is simply not forthcoming. The Court can, however, make an order under s 315A(1)(b) of the Crimes Act.
24. In fact, at the Crown’s request and despite the assurances from his lawyers thatMrAl-Harazi would co-operate, I made orders from time-to-time under s 315A(1)(b)(ii) of the Crimes Act that required MrAl-Harazi to be examined by Professor Greenberg.
25. I did so for more abundant caution.
26. The Crimes Act does not specify in any more detail how the investigation is to be conducted. In some jurisdictions, the court is directed that the proceedings are not to be adversarial: see s 12(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW). In some jurisdictions, a jury is empanelled for the purpose: see s 12(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). There is also in some jurisdictions a more detailed procedure specified in legislation for the conduct of the investigation: see R v Monaghan [2009] ACTSC 61 at [17].
27. In R v Monaghan at [17], I considered that the investigation that the Court would conduct was not an adversarial proceeding. This seems to me to flow from the use of the term “investigation”, the express provision for the Court to call evidence on its own initiative, the absence of a burden of proof imposed on any party, and the express requirement for the Court to “hearing relevant evidence and submissions put to the Court by the prosecution or the defence”, the latter being an apparently unnecessary provision were the Court to be required to proceed in the ordinary adversarial way.
28. There is no provision in the Crimes Act for a jury to be empanelled for the purpose of such an investigation in this Territory and I do not consider that there is a common law power to do so, at least for this purpose. Section 31 of the Juries Act 1967 (ACT) provides the procedure for empanelment of a jury for a criminal trial; by virtue of s 315(1) of the Crimes Act the trial is adjourned if the Court reserves a question of the accused’s fitness to plead. Thus, the investigation is not the trial or part of the trial. The investigation is to be conducted by a judge alone.
29. Other than as provided for in the Crimes Act, the procedure will be at the discretion of the Court, a discretion to be exercised judicially and having regard to procedural fairness.
30. When it came to the investigation on 10 February 2017, both parties tendered the reports they had obtained: MrAl-Harazi’s counsel tendered the further report of DrAllnutt and the comments of Dr Burhan and the Crown tendered the report of Professor Greenberg. Both submitted that, as a result of the reports, the Court should find Mr Al-Harazi was not unfit to plead.
31. I did consider whether I should accept the submissions of counsel as a consent to such a finding and simply rely on that. After all, as s 312(1) of the Crimes Act provides, a person is presumed to be fit to plead.
32. It seemed to me, however, that, having reserved the question for investigation, which meant that there was “a real and substantial question about the defendant’s fitness to plead” (s 314(1) of the Crimes Act), I was bound, at the very least, to read the reports and satisfy myself that I should not decide that Mr Al-Harazi was unfit to plead.