Citation: R v Aliwijaya [2012] NSWSC 503
Court: Supreme Court of New South Wales
Date: 16 May 2012
Judge(s): McCallum J
Background
The accused was charged with the murder of a man on 24 April 2010. He elected for trial by judge alone, and McCallum J presided over a one-day trial on 14 May 2012. The accused had previously been found unfit to be tried on two separate occasions before this proceeding.
The accused suffered from treatment-resistant schizophrenia. A significant development prior to trial was his commencement on the antipsychotic drug Clozapine, which his treating psychiatrist credited with producing a gradual but sustained improvement in his psychosis. The Mental Health Review Tribunal, following its fourth review of the case, notified the Supreme Court in December 2011 of its opinion that the accused had become fit to stand trial.
The central issues at trial were whether the accused was now fit to be tried, and, if so, whether the mental illness defence applied to his conduct at the time of the offence.
Legal Issues
- Whether the accused had become fit to be tried, notwithstanding a statutory presumption of continuing unfitness arising from his prior finding of unfitness
- Whether the accused satisfied the fitness criteria established in R v Presser [1958] VR 45
- Whether the accused was not guilty by reason of mental illness under the M'Naghton rules, specifically whether he knew that what he was doing was wrong at the time of the offence
Decision
Fitness to be tried: McCallum J conducted a fresh inquiry into fitness as required by s 29 of the Mental Health (Forensic Provisions) Act 1990. The Crown and the defence both submitted that the accused was fit. Two independent forensic psychiatrists, Professor David Greenberg and Dr Richard Furst, each assessed the accused by reference to the Presser criteria and concluded he was fit to plead and stand trial. The accused's treating psychiatrist, Dr Kasinathan, attributed the improvement to the accused's response to Clozapine. Her Honour accepted the uncontested expert opinions, noted that counsel for the defence had been able to obtain comfortable instructions on the morning of trial, and was satisfied on the balance of probabilities that the accused was fit.
Mental illness defence: The Crown case was presented by agreement on the available evidence, and both parties' expert psychiatrists agreed that the mental illness defence was established. The accused had been suffering acute symptoms of schizophrenic illness at the time of the offence. Her Honour found that, while the accused understood the nature and quality of his act, he did not know that what he was doing was wrong in the sense required by the M'Naghton rules. On that basis, the defence of mental illness was made out.
Consequences of verdict: McCallum J noted the community's entitlement to understand the practical effect of a not guilty by reason of mental illness verdict. The accused would be held as a forensic patient under the supervision of the Mental Health Review Tribunal. He would not be released unless the Tribunal was satisfied that his release would not seriously endanger the safety of the public or of himself, with his case reviewed every six months.
Orders Made
- The accused was found not guilty by reason of mental illness pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990
- The accused was ordered to be detained in a correctional centre or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (pursuant to s 39(1) of the Act)
- The Registrar was directed to notify the Minister for Health of the order as soon as practicable
- The Registrar was directed to notify the Mental Health Review Tribunal of the fitness determination and the order, and to provide the Tribunal with a copy of the reasons for verdict, the trial transcript, and the Crown exhibits
Key Takeaways
- A prior finding of unfitness creates a statutory presumption of continuing unfitness under s 15 of the Mental Health (Forensic Provisions) Act 1990, but that presumption can be displaced on the balance of probabilities following a fresh inquiry by the court, particularly where there has been a material change in the accused's clinical condition.
- Significant improvement in a previously unfit accused's mental state, attributable to a new course of treatment, can ground a finding of fitness where independent expert assessments consistently apply the Presser criteria and reach the same conclusion.
- Under the M'Naghton rules, the mental illness defence requires that the accused did not know that what he was doing was wrong at the time of the offence. An accused may understand the nature and quality of an act and still satisfy this limb of the test.
- Where all expert psychiatrists agree that the mental illness defence is established, that consensus informs both the fitness determination (reducing the trial's complexity) and the ultimate verdict.
- A verdict of not guilty by reason of mental illness does not result in unconditional release. The accused remains detained as a forensic patient under the Mental Health (Forensic Provisions) Act 1990, subject to six-monthly reviews and a threshold of public safety before any release can occur.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 14, 15, 29, 37, 38, 39, 47
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW)
- Supreme Court Rules 1970 (NSW), r 75.3H
Cases:
- R v Presser [1958] VR 45
- Ngatayi v The Queen (1980) 147 CLR 1
- Kesavarajah v The Queen (1994) 181 CLR 230
- Hawkins v The Queen (1994) 179 CLR 500
- R v M'Naghton (1843) 8 ER 718
- R v Porter [1933] HCA 1; (1933) 55 CLR
- R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924
- R v Rodriguez [2010] NSWSC 198
- R v PCB [2012] NSWSC 482
- R v Welsh (1996) 90 A Crim R 364