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Supreme Court 2 August 2018

R v Akok

[2018] NSWSC 1192

Homicide
CRIMINAL LAW COUNT OF MURDER PLEA OF GUILTY ENTERED IN LOCAL COURT ISSUE OF FITNESS OF ACCUSED TO BE TRIED INQUIRY HELD DIAGNOSIS OF PARANOID SCHIZOPHRENIA

Citation: R v Akok [2018] NSWSC 1192
Court: Supreme Court of New South Wales
Date: 2 August 2018
Judge(s): Button J

Background

The accused faced a charge of murder arising from a stabbing at Mount Druitt in the early hours of 28 October 2015. He was arrested at the scene, had reportedly confessed to several people in what was described as an oddly open manner, and had been in continuous custody since his arrest.

The accused, while legally represented, pleaded guilty to murder in the Local Court at Penrith in June 2017. The matter was committed to the Supreme Court for sentence. During the lead-up to the sentencing hearing, significant difficulties emerged in the accused's lawyers obtaining meaningful contact with him to prepare proceedings, apparently because the accused himself was refusing engagement.

Those difficulties, combined with Button J's own observations of the accused's behaviour and demeanour during a mention by audio-visual link in late November 2017, prompted the Court to adjourn sentencing and require thorough psychiatric investigation. Defence counsel formally raised the question of fitness under s 7 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in February 2018, and a fitness hearing was conducted on 20 July 2018.

  • Whether fitness to stand trial can properly be raised after a guilty plea has already been entered, including in the context of proceedings on sentence.
  • Whether the accused met the Presser standard for fitness, specifically whether his mental condition prevented him from making a defence or putting forward a meaningful plea in mitigation.
  • Whether paranoid schizophrenia, even where it does not wholly impair intellectual understanding of proceedings, can nonetheless ground a finding of unfitness.

Decision

Button J confirmed that the fitness question had been soundly and bona fide raised, notwithstanding that the accused had already entered a plea of guilty. His Honour noted that mental illness can remain hidden in forensic contexts, sometimes deliberately, and that conditions can deteriorate over time, particularly in custodial settings. No blame was attributed to the legal representatives involved in taking the original plea.

The fitness hearing was conducted in a non-adversarial manner as required by s 12(2) of the Act. Evidence was received from two forensic psychiatrists. Dr Antonio Simonelli of Justice Health had observed the accused's progressive deterioration in custody, including psychotic symptoms such as talking to walls, hoarding urine, wearing tissues in his ears, and echolalia (repeating questions back rather than answering them). His diagnosis was first-onset schizophrenia in an acute episode. Dr Stephen Allnutt, a highly experienced forensic psychiatrist, examined the accused closer to the hearing and diagnosed paranoid schizophrenia, observing that the accused's responses were monosyllabic, that he was unable to engage meaningfully, and that he demonstrated no understanding of the proceedings, the charge, or potential defences.

Button J accepted that the accused may have retained a basic intellectual capacity to understand the general nature of a criminal trial. However, his Honour found that the accused's paranoid schizophrenia created a "vicious circle": the illness caused the accused to distrust and refuse engagement with his own lawyers and with medical experts, which in turn made it impossible for him to mount a defence or contribute meaningfully to a plea in mitigation. This finding drew support from the approach taken in R v Waszczuk and R v Bugmy, where similar dynamics had grounded findings of unfitness.

Applying the Presser standard, Button J concluded that the paranoid schizophrenia interfered sufficiently with the accused's ability to make a defence or present a plea in mitigation that he must be found unfit to stand trial. The finding was described as finely balanced, reflecting the care with which the Court approached the question.

Orders Made

  • The accused was found unfit to be tried for murder.
  • Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused was referred to the Mental Health Review Tribunal.
  • Proceedings in the Supreme Court were adjourned and the accused was remanded in custody pending the Tribunal's determination taking effect.
  • The matter was listed for mention in the next arraignments list on 3 August 2018.
  • The Registrar was directed to forward the psychiatric reports of Dr Stephen Allnutt and Dr Antonio Simonelli to the Mental Health Review Tribunal.

Key Takeaways

  • A fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 (NSW) can properly be initiated after a guilty plea has been entered, including during proceedings on sentence, where the issue is genuinely and bona fide raised.
  • The Presser standard does not require total incapacity: even where an accused retains basic intellectual understanding of proceedings, a mental illness that prevents meaningful engagement with lawyers and medical experts can still satisfy the unfitness threshold.
  • Where paranoid schizophrenia operates as a "vicious circle," causing an accused to refuse engagement with the very people needed to prepare a defence or mitigation, that dynamic can itself constitute the disqualifying incapacity under Presser.
  • Mental illness may remain concealed in forensic contexts, and conditions can deteriorate in custody. Button J noted that these factors explain why a fitness question may legitimately arise well after an apparently uncontroversial plea has been entered.
  • Under s 14 of the Act, a finding of unfitness requires referral to the Mental Health Review Tribunal, with Supreme Court proceedings adjourned pending the Tribunal's determination.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 7, 12, 14, 33

Cases:
- R v Presser [1958] VR 45 (the foundational statement of the fitness standard)
- R v Waszczuk [2011] NSWSC 212
- R v Bugmy [2009] NSWSC 1215