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Court of Criminal Appeal 12 April 2007

Dezfouli v R

[2007] NSWCCA 86

Assault & violenceHomicide

Citation: Dezfouli v R [2007] NSWCCA 86
Court: Court of Criminal Appeal, New South Wales
Date: 12 April 2007
Judge(s): McClellan CJ at CL, Bell J, Price J

Background

The appellant was charged with murder and malicious damage to property by fire following an incident on 18 January 2002, in which he was found to have poured petrol in the foyer of the Community Relations Commission in Ashfield and ignited it, killing one person and causing extensive property damage. He had previously worked at the Commission as an interpreter and was known to at least one staff member there.

In May 2003, the appellant was found unfit to stand trial. The Mental Health Review Tribunal subsequently determined that he was unlikely to become fit within the following twelve months. A special hearing was then ordered and conducted before Buddin J and a jury in March 2004, in accordance with the Mental Health (Criminal Procedure) Act 1990.

At the special hearing, senior counsel representing the appellant's interests accepted that the Crown had proven the elements of manslaughter and malicious damage beyond reasonable doubt. The contested issue was whether the lighting of the fire involved reckless indifference to human life and intent to endanger life. The jury found those elements were not established and returned verdicts of not guilty of murder and not guilty of the more serious property damage charge. On the alternative counts, the jury found the appellant not guilty by reason of mental illness of manslaughter and not guilty by reason of mental illness of maliciously damaging property by fire.

  • Whether the special verdicts were unreasonable or could not be supported by the evidence
  • Whether the appellant's unfitness finding was itself open on the evidence, including in circumstances where he had declined to be interviewed by the Crown's psychiatrist
  • Whether the absence of a second psychiatric assessment prior to or during the special hearing constituted a miscarriage of justice
  • Whether the appellant's exercise of his right to silence had deprived him of an adequate psychiatric assessment

Decision

Bell J, with whom McClellan CJ at CL and Price J agreed, dismissed the appeal. Her Honour found that the evidence at the special hearing that the appellant was mentally ill at the time of the offences, so as not to be responsible in law for his actions, was overwhelming. No ground raised by the appellant disclosed that the verdicts were unreasonable or unsupported by evidence.

On the question of the psychiatric assessment, the Crown's psychiatrist, Dr Allnutt, had formed his opinion without relying on a personal interview with the appellant, who had declined to speak with him upon learning of his retainer by the Crown. The court found that Dr Allnutt's opinion was not dependent on that interview and remained sound. The appellant had sought an adjournment to obtain a second opinion but, after sleeping on the matter and discussing it with his counsel, withdrew that application and elected to proceed. The court held that the decision not to place further psychiatric evidence before the hearing could not, of itself, found a basis for setting aside the verdict.

The appellant's submission that his right to silence had cost him an adequate psychiatric assessment was treated as more properly directed at challenging the sufficiency of evidence for the unfitness finding than at the special verdicts themselves. The court found no merit in this contention. Having considered all grounds, Bell J concluded that there was no wrong decision on any question of law and no miscarriage of justice on any ground.

Orders Made

  • Time in which to file the notice of appeal extended to 10 March 2005
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of a second psychiatric opinion does not automatically render a special verdict unreasonable, particularly where the decision not to obtain one was made by the represented party during proceedings.
  • A psychiatrist's opinion on fitness to stand trial may remain valid even where the accused declines to be interviewed, provided the opinion is not dependent on that interview.
  • The exercise of the right to silence does not, without more, constitute a ground for challenging the adequacy of a psychiatric assessment for the purposes of an unfitness determination.
  • Under the Mental Health (Criminal Procedure) Act 1990, a verdict of not guilty by reason of mental illness returned under s 22(1)(b) is treated as equivalent to a special verdict under s 38 of that Act, with detention consequences governed by s 39.
  • Overwhelming psychiatric evidence supporting mental illness at the time of the offence, combined with an absence of any legal error at the special hearing, provided no basis for the Court of Criminal Appeal to interfere with the jury's verdicts.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 11A, 12, 21, 22, 38, 39
- Criminal Appeal Act 1912 (NSW), ss 6A, 7(4)
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v Foy (1922) 39 WN (NSW) 20
- R v Greig (1996) 89 A Crim R 254
- R v Logan [2004] NSWCCA 101
- R v Presser [1958] VR 45
- R v Riddell [2003] NSWCCA 251
- R v Williams [2004] NSWCCA 224