Citation: R v Haroon Hussein [2011] NSWDC 103
Court: District Court of New South Wales
Date: 20 April 2011
Judge: Cogswell SC DCJ
Background
The accused was charged by the Director of Public Prosecutions with two counts of obtaining money by deception under s 178BA of the Crimes Act 1900. The prosecution alleged he had participated in a scheme with another person to deceive several NSW hospitals into paying over two million dollars for goods that were never supplied.
Before arraignment, a question was raised about the accused's fitness to stand trial. Consistent with s 7(1) of the Mental Health (Forensic Provisions) Act 1990, the question was raised prior to any plea being entered.
His Honour determined under s 8 of the Act that an inquiry should be conducted, and the hearing that followed was held pursuant to s 10. The inquiry was not conducted in a purely adversarial manner: each party put arguments consistent with their respective positions, with the prosecution arguing for fitness and the defence arguing for unfitness.
Legal Issues
- Whether the question of the accused's unfitness had been raised in good faith
- Whether, on the balance of probabilities, the accused was unfit to be tried by reference to the criteria in R v Presser [1958] VR 45
- How to assess the accused's fitness in circumstances where his presentation to experts was grossly inconsistent and malingering was a real possibility
Decision
The court heard evidence from three medical practitioners and two psychologists. The prosecution called a forensic psychiatrist, Dr Kavanagh, who observed that the accused's behaviour during consultation was grossly inconsistent: at times he demonstrated reasonable comprehension; at others he could not answer basic questions. She had reservations about his fitness and recommended neuropsychological testing. A neuropsychologist retained by the prosecution, Dr Pulman, concluded the accused likely had some degree of mild intellectual impairment and that his understanding of court processes appeared "rudimentary at best," while also acknowledging he may have been underperforming.
The defence tendered evidence from a consultant psychiatrist, Dr Canaris, who raised the possibility of high-functioning autism and considered the accused would have major difficulty undergoing a trial. Dr Canaris acknowledged some element of malingering but observed that malingering does not exclude genuine underlying impairment. A clinical neuropsychologist retained by the defence, Dr Lucas, concluded that the accused likely had a mild intellectual disability and possibly autistic or Asperger traits, and that it was entirely plausible he was unfit to stand trial. A neurologist, Dr Dowla, found mild perfusion defects on brain imaging and formed the view the accused may not fully understand the details of the court process.
His Honour accepted that the prosecution's experts had greater expertise in applying the Presser criteria and took that into account. He also acknowledged the risk that the accused may have deliberately deceived the experts. Nonetheless, he accepted that even Dr Kavanagh and Dr Pulman, who were called by the Crown, retained reservations about fitness. His Honour was also unpersuaded by the argument that the trial would be straightforward, noting that criminal trials can rapidly become more complex than anticipated.
The court found the accused unfit to stand trial on the balance of probabilities. That conclusion rested primarily on his likely inability to follow the course of proceedings and understand what was occurring in court in a general sense. His Honour also expressed reservations about the accused's capacity to give instructions to counsel, give evidence, and withstand cross-examination.
Orders Made
• Mr Hussein is found to be unfit to be tried for the offences
Key Takeaways
- The District Court confirmed that unfitness to stand trial is determined on the balance of probabilities by reference to the Presser criteria, and that a finding of unfitness on any one criterion is sufficient.
- Evidence of inconsistent or seemingly exaggerated presentation does not preclude a finding of unfitness. As the court noted, a person who is malingering or underperforming may still have a genuine underlying impairment.
- Where prosecution and defence experts both expressed reservations about fitness, despite disagreeing on degree, the court treated that convergence as significant to the overall assessment.
- An argument that a trial will be factually simple does not automatically weigh strongly against unfitness, particularly since the complexity of criminal proceedings can increase beyond initial expectations.
- Under s 12 of the Mental Health (Forensic Provisions) Act 1990, fitness inquiries are not conducted in a purely adversarial manner, though each party may advance arguments consistent with their position.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 178BA
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 7(1), 8, 10, 12
Cases
- R v Presser [1958] VR 45 (Smith J, Supreme Court of Victoria), the foundational authority setting out the criteria for assessing fitness to stand trial