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Supreme Court 9 October 2015

R v Azar

[2015] NSWSC 1486

Homicide
CRIMINAL LAW PROCEDURE MURDER FITNESS TO BE TRIED “PRESSER” PRINCIPLES ACCUSED UNFIT TO BE TRIED

Citation: R v Azar [2015] NSWSC 1486
Court: Supreme Court of New South Wales
Date: 9 October 2015
Judge(s): Wilson J

Background

The accused was charged with the murder of a man at an apartment in Granville, New South Wales, on or about 14 August 2013. He was committed to the Supreme Court to stand trial and was arraigned before Johnson J in August 2015, with a trial date set for November 2015.

Before trial could proceed, the accused's legal representatives raised the question of his fitness to be tried. The Court conducted a fitness inquiry under the Mental Health (Forensic Provisions) Act 1990, hearing psychiatric and other evidence about the accused's mental state.

Family members had observed a deterioration in the accused's behaviour from around 2011, which they associated with his use of illicit drugs including methamphetamine ("ice"). Hospital records from April 2013, predating the alleged offence, documented irrational speech and suicidal ideation.

  • Whether the accused was fit to be tried for murder, assessed against the criteria established in R v Presser [1958] VR 45 and affirmed by the High Court in Kesavarajah v R (1994) 181 CLR 245
  • Whether the accused's mental condition met the threshold for a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990

Decision

Wilson J conducted the fitness inquiry on a non-adversarial basis, noting that both the Crown and the accused's senior counsel agreed the evidence supported a finding of unfitness. The Court received evidence from the accused's solicitor, two forensic psychiatrists, Justice Health records, family statements, and police interview transcripts.

The Court accepted the evidence of forensic psychiatrist Dr Stephen Allnutt, who diagnosed the accused with a chronic psychotic disorder, possibly schizoaffective disorder. During clinical evaluation, the accused displayed a marked inability to engage meaningfully with questions directed at assessing his capacity to participate in proceedings. He described lawyers as talking "too much shit", characterised the prosecution's role as being "to fuck my life up", and said the judge was there "to send him to heaven or hell." He expressed indifference to providing instructions to his lawyer.

The accused's solicitor deposed that he had been unable to obtain any detailed or meaningful instructions across multiple conferences. The accused frequently became aggressive, made tangential comments, and referred to hearing voices and "waiting for a number."

Wilson J was satisfied, having considered all the evidence and the requirements in Presser and Kesavarajah, that the accused was unfit to be tried. The Court noted the consistency between the two psychiatric experts and the agreement of both parties, and found the evidence of mental illness well-supported by records both before and after the alleged offence.

Orders Made

  • The accused was found unfit to be tried for the offence of murder under section 14 of the Mental Health (Forensic Provisions) Act 1990
  • The matter was referred to the Mental Health Review Tribunal
  • The accused was remanded in custody pending further orders of the Court
  • The Supreme Court Registry was directed to provide specified documents to the Tribunal, including the judgment, detention orders, exhibits, and the Crown Case Statement
  • The trial date of 9 November 2015 was vacated
  • The section 77 order for 9 November 2015 was revoked

Key Takeaways

  • A finding of unfitness to stand trial requires the court to be satisfied that the accused cannot meet the minimum standards for meaningful participation in proceedings, as set out in R v Presser and affirmed in Kesavarajah v R (1994) 181 CLR 245.
  • Fitness inquiries under the Mental Health (Forensic Provisions) Act 1990 are conducted on a non-adversarial basis, and the agreement of both prosecution and defence on the evidence does not automatically determine the outcome; the court must independently assess the material.
  • Psychiatric diagnoses relevant to fitness need not be consistent across all treating clinicians. The Supreme Court here accepted expert evidence of a chronic psychotic disorder despite earlier inconsistencies in diagnosis among Justice Health staff.
  • Evidence of deteriorating behaviour and documented mental health presentations predating the alleged offence can form part of the evidentiary foundation for a fitness finding.
  • Where an accused is found unfit, the Mental Health (Forensic Provisions) Act 1990 requires referral to the Mental Health Review Tribunal and provides for the accused's continued detention pending further court orders.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 14, 77

Cases
- R v Presser [1958] VR 45
- Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 245