R v Akok

Evidence on fitness hearing

1. I turn now to summarise briefly the evidence that was placed before me at the fitness hearing. In accordance with s 12(2) of the Act, the proceedings were not conducted in an adversarial manner. Neither party required for cross-examination any person who had prepared a report or sworn an affidavit that was tendered by the other party.

Crown evidence

1. I shall discuss the three documentary exhibits tendered at the fitness hearing by the Crown in the general chronological order of their subject matter.
2. First, the Crown tendered a copy of the agreed facts to which I have already referred; that particular copy was not signed by the accused or one of his lawyers, but nothing turns on that.
3. Secondly, the Crown tendered a psychiatric report of 7 February 2018 prepared by Dr Antonio Simonelli, a forensic psychiatrist working as a staff specialist within Justice Health. That report, of course, provided a picture of how the accused had presented in custody some months beforehand. It may be summarised as follows.
4. Dr Simonelli noted that there was no documented psychiatric history pertaining to the accused prior to his incarceration.
5. The psychiatrist referred to the traumatic upbringing of the accused, not least because of the notorious civil war in Sudan, from which he had escaped.
6. The doctor had first reviewed the accused in January 2016; that is, soon after his incarceration. At that time, the accused denied any problems with his mental health, and expressed investigations in that regard to be a waste of time.
7. By September 2017, staff were becoming concerned about the mental health of the accused, based upon him being "overly religious", and allegedly "talking to walls". Other inmates had also expressed their fear of the accused, and he was noted to wear inappropriately numerous layers of clothing. Eventually, he was sent to the Mental Health Screening Unit. There he was seen to be "wearing tissues in his ears, laughing and giggling to himself and hoarding urine". He was unresponsive to medication, and thereafter was transferred to a prison hospital.
8. When first interviewed at that further location, the accused echoed questions asked of him, and was giggling and laughing to himself incongruously. He tore up his clothing on one occasion and made a skipping rope out of it. Subsequently, he would barely speak spontaneously, and continued simply to echo questions that were asked of him.
9. On a later assessment, the accused spoke of being in a good mood, "but there was little reactivity and affect was generally blunted. There were no abnormalities of speech noted, however a significant poverty of content".
10. The ultimate diagnosis proffered by the psychiatrist earlier this year was "Schizophrenia, First-Onset, currently in acute episode".
11. It was noted that, at the time of the preparation of the report, the accused was detained in a prison hospital pursuant to the Act, and was receiving voluntary treatment.
12. With regard to the noted inability of the accused to engage with psychiatrists with regard to preparation of material for his sentencing proceedings, Dr Simonelli said "[i]t is my opinion that he has been unable to engage because of the acute episode of mental illness (psychosis), which he is suffering. I expect that following a period of approximately 2 months on ongoing treatment, there will be a significant improvement in his mental state, so that he can engage meaningfully in providing subjective evidence."
13. Thirdly, the Crown tendered a report of 19 July 2018 of Dr Stephen Allnutt, a highly experienced forensic psychiatrist. Dr Allnutt had interviewed the accused by AVL on 11 July 2018. His report may be summarised as follows.
14. The accused was described as a 21 year old man, who had been in custody for three years, and who was taking antipsychotic medications. He was not, however, seeing a mental health professional.
15. At the time of the offending, the accused was aged 18 and was not taking any medication, nor was he seeing a mental health professional. More generally, he denied any contact with mental health services or psychiatric diagnoses.
16. Dr Allnutt records that the accused was drinking about one litre of wine a day up to the alleged offending, which drinking had occurred from age 16.
17. Dr Allnutt stated that, from the outset, the accused's responses to him were "limited and mostly monosyllabic". There was no spontaneous engagement, nor did he respond adequately to open questioning. The accused responded "I don't know" when asked what happened in the lead-up to the alleged offending. Having said that, the accused was able to give the forensic psychiatrist a reasonably coherent version of events surrounding the alleged offence.
18. The accused denied any perceptual disturbances (such as hearing voices) or interferences with his thinking (such as receiving messages from the TV). He also denied any physiological symptoms.
19. With regard to particular aspects referred to in the report of Dr Simonelli, the accused denying "putting tissues in his ears or hoarding his urine". The accused claimed that others had told lies about those alleged behaviours on his part, so that he could be taken to a hospital.
20. Dr Allnutt took the accused through those aspects of the criminal trial that are discussed in the seminal case of R v Presser [1958] VR 45. The accused had a reasonably good understanding of all of those factors. When the affirmative defence of mental illness was explained to him, the accused denied that he suffered, or had suffered, from such a condition.
21. The accused spoke coherently of his background, including having escaped some years ago from the civil war in Sudan.
22. Dr Allnutt engaged in a detailed document review, including a detailed analysis of the report of Dr Simonelli and the agreed facts to which I have already referred.
23. The forensic psychiatrist described the accused as difficult to interview, due to his monosyllabic and unspontaneous way of interacting; his brief responses to questions; and his flat affect and monotonous tone. Although the psychiatrist felt that the accused performed adequately with regard to aspects of cognitive testing, Dr Allnutt nevertheless said "[h]is capacity for insight, in my view, is questionable and his judgment is questionable".
24. Dr Allnutt expressed the opinion that the accused suffers from symptoms consistent with a paranoid schizophrenia. He felt that the reported blocking of his ears may be suggestive of auditory hallucinations. He also expressed the view that it was difficult to determine whether the applicant "continues to experience positive symptoms of psychosis". The impression of the psychiatrist was that antipsychotic medication, received over a number of months, may have caused such symptoms to go into remission; the alternative possibility was said to be that the symptoms are still being experienced, but the accused is denying them.
25. With regard to the general question of fitness to stand trial, Dr Allnutt expressed the view that the accused has the capacity to plead to the charge; and in particular to understand the concepts of guilt and absence of guilt. The accused also had the ability, the psychiatrist considered, to understand the defence of not guilty by reason of mental illness. The accused was also said to have the ability to exercise the right of challenge with regard to members of the jury panel.
26. Dr Allnutt did say, however, "I also have concern about his capacity to make his defence and answer to the charge, regarding giving instruction to his lawyers, given his poverty of thought content and the lack of spontaneity in the quality of his interaction with lawyers; that is, he does not spontaneously engage with another person, which may mean there might be information which might be important for his legal team to be aware of, but which he does not provide to them spontaneously." Having said that, Dr Allnutt was also of the opinion that the accused had the ability to decide what (if any) defence he would rely upon.
27. In the ultimate, Dr Allnutt expressed the opinion that the accused is unfit to stand trial, but tempered that opinion by referring to that finding as "marginal".
28. Separately and finally, Dr Allnutt recommended a neuropsychological assessment, and also expressed a suspicion that the accused may well have a valid defence of not guilty by way reason of mental illness.

Defence evidence

1. The accused relied upon two affidavits of his solicitor in the fitness hearing. I shall discuss them in the order in which they were sworn.
2. The first affidavit of 30 November 2017 described how the solicitor had attended upon the accused in prison on a number of occasions. Despite the palpable seriousness of the charge, the accused had "been extremely reticent in providing me with details of his background or with any detailed instructions about the charge, other than to plead guilty to it".
3. That affidavit also recorded that the accused had, on the one hand, accepted that he had "a history of war-related trauma in South Sudan"; but, on the other hand, felt that he did not suffer from any issues with regard to his mental health.
4. The solicitor also swore that she had been told by a prison welfare officer that a Justice Health psychiatrist had seen her client in 2015 and 2016, and had expressed the opinion that the accused "was not suffering from a mental illness" (I interpolate that I respectfully assign little weight to that purported opinion, bearing in mind that it was placed before me by way of "third-hand hearsay").
5. Thereafter, the solicitor went on to set out the difficulties she had experienced in seeing her client in custody, due to his refusal to meet her. She also explained that, on 10 November 2017, a forensic psychologist whom she had retained met with the accused very briefly, but he "politely asked [her] to leave".
6. In short, by 30 November 2017, the solicitor for the accused was concerned about the need to explore in detail the mental state of her client, and in particular whether it had significantly deteriorated, but had already experienced difficulties in being able to do so, chiefly because of the stance adopted by her client.
7. The affidavit of the solicitor for the accused of 20 July 2018 is to similar effect. It confirms that, at least for a time earlier this year, the accused was a "scheduled patient" pursuant to s 33(1)(b) of the Act, and was being held in a prison hospital.
8. By that stage, having had the chance to speak to the accused face-to-face, the solicitor had become concerned that her client was not only suffering from psychiatric problems, but also neurological issues.
9. The second affidavit also spoke of the understanding of the solicitor that, on 9 April 2018, the accused was transferred from the prison hospital back to a standard custodial setting.
10. Although a neuropsychologist had spoken to the accused at length by the time of the swearing of the second affidavit, logistical problems and the need for deeper investigation had prevented a report being available as at the date of the fitness hearing.
11. The second affidavit also recorded that, until 9 July 2018, the accused had consistently refused to grant his solicitor permission to contact any member of his family. On that date, that permission was granted; despite that change of position, the solicitor noted that the responses of her client remained often either monosyllabic or a simple repetition of what had been said to him by her.
12. Eventually, the solicitor was able to speak with the mother of the accused and her son (it is unclear whether the latter is a full or half or step-brother of the accused). That gentlemen spoke to the solicitor of the alleged offence being inexplicable, but also spoke of having observed a change in the accused "late last year" (presumably, late 2017).

Defence counsel

1. In oral submissions, counsel for the accused contended that the accused was unfit, and that he should be referred to the Mental Health Review Tribunal (the Tribunal).
2. It was submitted that the issue arose in relation to the last criterion set out in R v Presser, namely, the ability of an accused to make his or her defence or answer to the charge. Counsel relied on two decisions of single judges of this Court in that regard: R v Bugmy [2009] NSWSC 1215 and R v Waszczuk [2011] NSWSC 212.
3. In particular, it was said, a concern about fitness arose based on the report of Dr Allnutt and the affidavits of the solicitor for the accused, because it was clear that the repeated efforts of the lawyers of the accused had been unsuccessful in obtaining detailed instructions from him since the date of his plea. His responses, it was submitted, to both mental health professionals and his lawyers, have been monosyllabic and repetitive of the question, leading to concern about his mental state and his capacity to put forward his case fully and properly on sentence.
4. Counsel for the accused agreed that the accused was intellectually capable of understanding such things as the concept of trial by jury and criminal liability, whilst emphasising that, at least until relatively recently, he was a forensic patient. But his mental state was said to render him incapable of making a proper response to what he has allegedly done.
5. Reliance was placed on the two decisions referred to above, in that in each of those cases, the accused was indeed able to understand court proceedings to some degree, and to make some rational decisions. The concern arose, however, about whether the accused was capable of engaging with his representatives to a sufficient degree due to an underlying condition. In particular, attention was invited to [13] of R v Bugmy, which showed that, in that case, the defence lawyers were not in a position properly to represent the interests of the accused: "An affidavit of Ms Manea was read and she also gave oral evidence. She is a solicitor of ten years experience, for most of that time in the employment of the Legal Aid Commission. She also could obtain no account from him of the killing and the circumstances surrounding it, although she was aware that that of itself did not necessarily mean that her client was unfit to stand trial. She had been involved in other cases where, even though a client professed no memory of the events giving rise to the charge, she was able to obtain other relevant information from the client and instruct counsel. With the accused, however, she said in answer to questions by the Crown prosecutor that she was not in a position to properly represent his interests, that she did not think "he really grasps what's going on" and that he would not be able to give proper instructions to defend himself. She added, "I don't think he would; I think it's beyond him."
6. Defence counsel submitted before me that, if the accused were unable or unwilling to give proper instructions in order to raise a defence or put a plea in mitigation to the Court, the sentence ultimately imposed would not reflect his subjective circumstances. That was submitted to be not only unfair to the accused, but also contrary to the interests of justice generally.
7. With regard to my enquiry as to whether the affirmative defence of being not guilty on the grounds of mental illness may be relevant to the matter, defence counsel stated that was something that needed to be explored more deeply, but he did not see it being relied upon as a strong possibility.
8. It was further submitted that, as Dr Allnutt's ultimate view was that the accused was and is suffering from schizophrenia, that itself called into question whether he truly has the capacity to make an autonomous decision whether or not to engage with his lawyers, medical professionals, the Court, and ultimately, the sentencing process that relates to himself.
9. In conclusion, it was submitted that, on the evidence, I should find that the accused is unfit, thereby leading to the procedure by which the question of the mental state of the accused is deeply explored before any further forensic step is undertaken.

Crown prosecutor

1. The position of the Crown prosecutor at the fitness hearing may be summarised as follows.
2. She submitted that, on the evidence, it would be incumbent upon me to find the accused unfit. Whilst accepting that the conduct of the accused at the time of the alleged offence was quite some years before the day upon which I needed to determine the question of fitness, she submitted that his mental state then could shed light on his mental state now.
3. The Crown prosecutor accepted that persons may choose not to engage with their lawyers for a number of reasons, but nevertheless be perfectly fit to stand trial. But in the circumstances of this case - not least the current diagnosis of schizophrenia - she submitted that that mental illness currently experienced by the applicant, is, in all likelihood, significantly interfering with his ability to engage properly with, and respond properly to, the prosecution allegations: whether that be by way of a complete denial; or reliance upon the defence of not guilty by reason of mental illness; or by putting forward an appropriately substantial case in mitigation.

Discussion

1. Turning to my determination, I think it appropriate to set out some fundamental matters that I have borne in mind.
2. First, the question is not whether the accused may have the affirmative offence available to him, based upon his state of mind at the time of the alleged offence many months ago. The focus with regard to his fitness to stand trial must be upon his mental state as it is now.
3. Having said that, I accept that his mental state some years ago can indirectly inform one's understanding of his mental state now.
4. Secondly, there may be valid reasons why a person may care not to rely upon the affirmative defence, even if it is available; the prospect of potential indefinite detention is one reason that springs readily to mind.
5. Thirdly, one should be careful not to infringe the autonomy of an alleged offender by too readily finding that he or she is unfit to stand trial, simply because he or she may have made unusual, or even self-defeating, forensic choices.
6. Fourthly, I consider that, in this case, the accused is capable of understanding all aspects of the "Presser test" that pertain to the roles of the participants in criminal proceedings, the concepts of guilt and lack thereof, and so forth. As defence counsel submitted, the only concern is the last factor: whether the accused has sufficient capacity to decide what defence he will rely upon and to make his defence and his version of the facts known to the Court and to his counsel.
7. Having sounded those general notes of caution, I accept that the accused suffers from the chronic and serious mental illness of paranoid schizophrenia. I affirmatively rule out any question of malingering on his part.
8. Furthermore, in my opinion that illness either causes him to be incapable of seeing that he suffers from it, or, at the least, plays a significant role in his refusal to accept that he suffers from it.
9. As I have said, the matter is finely balanced (in saying that, in accordance with s 12(3) of the Act, I do not impose a burden of proof on either party). On reflection, however, I consider that the significant mental illness from which this man suffers is itself significantly preventing him from making proper answer to the allegation against him, including with regard to a proper plea in mitigation.
10. In other words, I consider that the accused, due to his illness, is incapable of properly putting forward whether he is criminally liable for the death of the deceased and, if so, to what degree. And I include in that, of course, with regard to the effects of that mental illness upon both of those questions. I think that he is trapped in that "vicious circle", with the effect that he refuses properly to engage with his solicitor, his counsel, or any medical expert who is trying to shed light on his position.
11. Separately, the decisions to which I was invited are, with respect, instructive. In R v Waszczuk, R A Hume J took a similar approach, having identified a similar vicious circle: at [35]. And in R v Bugmy, Hidden J, with regard to an accused who was intellectually disabled and suffered from auditory hallucinations induced by chronic abuse of alcohol, placed similar emphasis upon his inability to understand, let alone put forward, the defence of not guilty by reason of mental illness: at [14] and [15].
12. In summary then: although I consider that the accused is intellectually capable of understanding a criminal trial or proceedings on sentence, I consider that his paranoid schizophrenia interferes with his ability to make a defence or plea in mitigation of any substance, and does so to such an extent that he should be regarded as unfit to stand trial.
13. The concluding matter is to record my opinion that no blame can be ascribed for the fact that a plea of guilty was entered some time ago by a represented person whom I now judge to be unfit to stand trial. I say that simply because I know from direct experience that mental illness can often remain hidden in a forensic context, and sometimes deliberately so. One also knows, of course, that such conditions can be the subject of deterioration over an extended period, and that phenomenon not uncommonly occurs in a custodial setting.

Determination and orders

1. It is for the foregoing reasons that I previously made the following determination, and the following orders:
2. I find the accused, Mr Marko Akok, unfit to be tried for the offence of murder with which he is charged.
3. I make the following orders: (1) Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), I refer Mr Akok to the Mental Health Review Tribunal. (2) I adjourn the proceedings before this Court and remand Mr Akok in custody until the determination of the tribunal has been given effect. (3) The matter is listed for mention only in the next arraignments list of this Court at 10 am on 3 August 2018. (4) I direct the Registrar of the Court to forward to the Mental Health Review Tribunal, the reports of the two psychiatrists, Dr Stephen Allnut and Dr Antonio Simonelli.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2018