Citation: R v Azar [2016] NSWSC 480
Court: Supreme Court of New South Wales
Date: 18 April 2016
Judge(s): Mathews AJ
Background
The accused was charged with the murder of a man killed at Granville in the early hours of 14 August 2013. He was arrested on 19 August 2013 after admitting involvement in a second police interview, and bail was refused. In the months following his arrest, he displayed erratic behaviour in custody and reported visual hallucinations, prompting psychiatric review.
Between 2014 and 2015, clinicians diagnosed the accused with a range of conditions, including schizophreniform disorder, brief reactive psychosis, and, later, a chronic psychotic or schizoaffective disorder. His solicitor reported persistent difficulty engaging him in meaningful discussion about the charge. Two forensic psychiatrists concluded in late 2015 that he could not satisfy the fitness criteria to a minimum standard.
In October 2015, Wilson J found the accused unfit to stand trial under the Mental Health (Forensic Provisions) Act 1990. The matter was referred to the Mental Health Review Tribunal, the accused was admitted to Long Bay Hospital, and he received anti-psychotic medication. By March 2016, treating clinicians reported significant improvement, and the Tribunal determined he had become fit to be tried. A further fitness enquiry was then convened before Mathews AJ.
Legal Issues
- Whether the accused had, at the time of the April 2016 hearing, become fit to stand trial for murder, assessed against the criteria established in R v Presser [1958] VR 45
Decision
Fitness to stand trial under the Presser criteria:
The Presser criteria set the benchmark for fitness to stand trial in Australian courts. To be fit, an accused must have sufficient capacity across seven areas, including understanding the nature of the charge and the pleas available, following the course of the proceedings, instructing legal representatives, and understanding the general nature of the evidence (at [11]-[12]).
The treating team at Long Bay Hospital, comprising a psychiatrist and a psychiatry registrar, assessed the accused in February and March 2016. They reported that he showed no overt psychotic symptoms, understood the charge and available pleas, and could communicate effectively. On the balance of probabilities, they concluded he had sufficient capacity to make his defence and was currently fit to be tried (at [19]).
The accused's solicitor corroborated that assessment by affidavit, noting a marked improvement in the accused's demeanour and capacity to engage since October 2015. The solicitor observed that the accused could now provide coherent and responsive answers, understood the jury's role, and was capable of giving adequate instructions (at [20]).
Both parties accepted the medical and solicitor evidence and agreed the accused was fit to stand trial. Mathews AJ, having reviewed the material, made the fitness finding accordingly (at [21]).
Orders Made
- The accused is fit to be tried for the offence of murdering the deceased.
- The matter to be listed before the Arraignments Judge on 3 June 2016.
- Bail not being applied for, bail refused in the meantime.
Key Takeaways
- Fitness to stand trial in New South Wales is assessed against the seven Presser criteria, which require an accused to have sufficient capacity to understand the proceedings, follow the evidence, and give meaningful instructions to legal representatives (at [11]-[12]).
- A finding of unfitness does not permanently preclude trial. Under the Mental Health (Forensic Provisions) Act 1990, the Tribunal monitors the accused's condition and can determine that fitness has been restored, triggering a further court enquiry (at [15]-[17]).
- Sustained anti-psychotic treatment can form the evidentiary basis for a restored fitness finding. Here, the treating team's evidence that the accused had responded well to medication and no longer displayed overt psychotic symptoms underpinned the positive assessment (at [19]).
- Where both the prosecution and defence accept psychiatric and solicitor evidence as to restored fitness, the court may proceed to make the fitness finding on that agreed material without a contested hearing (at [18], [21]).
- Solicitor evidence about an accused's ability to engage in meaningful legal consultation is a relevant and accepted source of evidence in fitness enquiries, complementing formal psychiatric assessment (at [20]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990
Cases
- R v Presser [1958] VR 45