Citation: Ali Nasrallah v Regina [2016] NSWDC 101
Court: District Court of New South Wales
Date: 9 June 2016
Judge: Judge AC Scotting
Background
The accused faced one count of recklessly inflicting actual bodily harm with intent to have sexual intercourse under section 61K(a) of the Crimes Act 1900. The charge arose from an incident on 18 March 2014, during which it was alleged the accused physically restrained the complainant and attempted to engage in sexual intercourse with her.
Prior to trial, the accused raised a challenge to his fitness to be tried. CT scans from 1998 and 2011 were interpreted as showing frontal lobe atrophy, on the basis of which the accused had received a provisional diagnosis of frontotemporal dementia (FTD). He submitted that his cognitive deficiencies rendered him unable to meet the minimum standards required to participate meaningfully in criminal proceedings.
The District Court conducted a fitness inquiry, receiving extensive expert psychiatric and neuropsychological evidence, including reports from a forensic psychiatrist and two neuropsychologists, as well as an electronically recorded interview (ERISP) conducted by police on the day of the alleged incident.
Legal Issues
- Whether the accused met the minimum standards for fitness to be tried, as set out in R v Presser [1958] VR 45
- Whether the accused's cognitive impairments, including a possible diagnosis of FTD, rendered him unable to understand the proceedings, follow the evidence, or give adequate instructions to his lawyers
- Whether the court should assess fitness by reference not only to the accused's present condition but also his likely future condition throughout the estimated length of the trial
Decision
Judge Scotting concluded that the accused did not suffer from FTD or any serious psychiatric illness. The medical experts agreed that the accused was feigning or significantly exaggerating the extent of his symptoms, or was deliberately not making a reasonable effort when undertaking cognitive testing. Accordingly, the court was not satisfied that his symptoms were affecting him to a degree that prevented him from satisfying the Presser criteria.
The court placed weight on the ERISP conducted on the day of the alleged incident. Although the accused had not been provided with an interpreter during that interview despite requesting one, the communication difficulties were adequately explained by that absence. Importantly, the accused was able to give a coherent narrative account of his version of events and then respond to specific clarifying questions arising from that account.
While some anecdotal evidence suggested the accused had experienced cognitive difficulties since around 2011, and the evidence of his solicitor indicated some difficulty concentrating and following procedure, the court found these difficulties did not rise to the level of unfitness. The court noted that certain practical accommodations, such as taking breaks after each hour of hearing time, may assist the accused at trial, but left that matter to be assessed by the trial judge.
The court also observed that fitness is an ongoing question under the Mental Health (Forensic Provisions) Act 1990, and indicated it may be appropriate to revisit the finding at a later stage of the proceedings if circumstances change.
Orders Made
- The accused was found presently fit to be tried.
- The matter was listed on 17 June 2016 to fix a trial date.
Key Takeaways
- The Presser criteria set minimum, not high, standards for fitness: an accused need not have the capacity to mount an able defence, but must be able to understand the charge, follow proceedings in a general sense, and give instructions to counsel.
- Under the Mental Health (Forensic Provisions) Act 1990, a fitness inquiry is not adversarial and no party bears any onus of proof; the court determines the question on the balance of probabilities.
- Where expert evidence establishes that an accused is feigning or exaggerating cognitive symptoms, a court may decline to find unfitness even where some degree of genuine impairment exists.
- A fitness finding is not final: the District Court explicitly acknowledged that fitness must be assessed on an ongoing basis, and that the trial judge may need to revisit the question as the proceedings unfold.
- Practical accommodations, such as regular breaks, use of an interpreter, and simple language, may be appropriate even where an accused is found fit to be tried; the court indicated these matters were for the trial judge to assess at the appropriate time.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61K(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 11(1), 12(2), 12(3)
Cases
- R v Dashwood [1943] 1 KB 1
- R v Presser [1958] VR 45
- Ngatayi v The Queen (1980) 147 CLR 1
- Kesavarajah v The Queen (1994) 181 CLR 230
- Eastman v The Queen (2000) 203 CLR 1
- R v Sexton (2000) 77 SASR 405
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- R v Rivkin (2004) 59 NSWLR 284