Citation: R v Khan (No 2) [2018] NSWSC 663
Court: Supreme Court of New South Wales
Date: 16 May 2018
Judge: Bellew J
Background
The accused stood trial on an indictment alleging that on 10 September 2016 at Minto, NSW, he engaged in a terrorist act contrary to s 101 of the Criminal Code 1995 (Cth), with an alternative count of wounding with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW). The Crown's case was that the accused, armed with a knife, stabbed the victim repeatedly while making religious references. The circumstances of the attack were not in dispute; the sole issue at trial was the accused's mental state at the time.
The accused entered pleas of not guilty on the grounds of mental illness to both counts. The trial had already experienced one jury discharge in early May 2018 (addressed in R v Khan (No 1) [2018] NSWSC 577) and the second trial had advanced to the point where most of the Crown's evidence had been adduced.
On 10 May 2018, reports emerged that the accused had acted violently towards Corrective Services officers. It was subsequently established that he had stopped taking his prescribed antipsychotic medication (Olanzapine) approximately five to six days earlier, resulting in a relapse of his schizophrenic condition. This development prompted psychiatric examinations and raised a question as to his fitness to continue standing trial.
Legal Issues
- Whether the question of the accused's fitness to stand trial had been "raised" within the meaning of s 10(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW)
- Whether s 10 of that Act mandated a fitness hearing conducted before a judge alone, with the consequent discharge of the jury
- What threshold must be met before the statutory scheme requiring a fitness inquiry is engaged
Decision
Three psychiatrists examined the accused in the days following the reported deterioration, producing materially different but collectively inconclusive opinions. Dr Watts, who examined the accused first, considered him "OK" in terms of fitness, noting he understood the proceedings and could give instructions, though he recommended a supervised stabilisation period of 10 to 14 days. Dr Adams, examining the accused on 14 May, expressed significant concerns about the accused's capacity to satisfy the Presser standards, concluding that the court would "most likely" find him unfit.
Professor Greenberg's examination was conducted through a locked cell door due to safety concerns, significantly limiting its utility. He was unable to form an opinion as to whether the accused could appreciate the effect of the evidence or properly decide on his defence. Ultimately, Professor Greenberg could not express an opinion that the accused was currently fit to stand trial, and recommended further assessment following a period of treatment.
Bellew J held that the reports of all three psychiatrists collectively "raised" the question of the accused's fitness within s 10(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The phrase "raising the question" had not previously been judicially defined and was to be given its ordinary meaning, setting a low threshold that does not require the fitness question to be resolved at that stage. Where the question is raised in good faith, s 10 mandates the prescribed course, including discharge of the jury and a separate fitness hearing before a judge alone, even if this causes procedural disruption.
Both the Crown and senior counsel for the accused agreed that s 10 required the jury to be discharged and a standalone fitness hearing to be conducted. Bellew J concurred, and expressed the view that further medical assessments should not proceed for three to four weeks, to allow for monitored stabilisation of the accused's condition under Justice Health supervision before those assessments were carried out.
Orders Made
- The jury was discharged.
- The proceedings were listed before Bellew J for further directions on 9 July 2018, with a view to setting a hearing date to determine the accused's fitness to stand trial.
Key Takeaways
- Under s 10(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the threshold for "raising" the question of fitness to stand trial is a low one. It requires only that the question be genuinely raised, not that it be resolved or that a conclusion of unfitness be reached.
- Where the fitness question is raised in good faith mid-trial, the statutory scheme mandates discharge of the jury and a separate fitness hearing before a judge alone, regardless of the procedural inconvenience this causes.
- Inconclusive or divided expert psychiatric evidence can collectively be sufficient to raise the fitness question and trigger the mandatory statutory process, even where one expert considers the accused capable of proceeding.
- The Supreme Court confirmed that the phrase "raising question of fitness" in s 10(1)(b) carries its ordinary meaning and, at the time of this decision, had received no prior judicial definition.
- A period of supervised medication compliance and monitored mental health stabilisation may be required before meaningful psychiatric reassessment can be conducted for the purpose of a fitness hearing.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 101
- Crimes Act 1900 (NSW), s 27
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 10
Cases
- R v Khan (No 1) [2018] NSWSC 577
- R v Presser [1958] VR 45 (the foundational Victorian case setting out the minimum standards for fitness to stand trial)
- R v Zhang [2000] NSWCCA 344
- R v Tier [2001] NSWCCA 53
- R v Sharrouf [2008] NSWSC 1450