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[2016] ACTSC 290
Supreme Court of the ACT
2016-09-29
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
PROCEDURE - CRIMINAL LAW - Vacation of trial - fitness to plead - psychiatric evaluation - real or substantial question about fitness to plead - question of inquiry - adjournment for further psychiatric evaluation - Div 13.2 of the Crimes Act 1900 (ACT)
Crimes Act 1900 (ACT), ss 311, 312(3), 315, 315(2)(c)
R v Al-Harazi (No 2) [2016] ACTSC 273
R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (American Psychiatric Association, 5th ed, 2013)
William James, Varieties of Religious Experiences (Harvard University Press, 1985)
Legal Aid ACT (Accused)
1. Determining whether a person is unfit to plead is a complex matter but the consequences whether the person is fit or unfit to plead are high. If a person is not fit to plead but the trial proceeds, it will be a nullity and there will have been a miscarriage of justice: Eastman v The Queen (2000) 203 CLR 1 at 21-2; [62].
2. In this case, the accused, Maged Mohammed Ahmed Al-Harazi, has been charged with the murder of his wife on 17 March 2015 and the trial was set to commence on 7 September 2016. Prior to that time, however, his counsel raised an issue as to the fitness of Mr Al-Harazi to plead. I heard initial argument and then adjourned the trial so that Mr Al-Harazi could be further examined by a psychiatrist, in particular a psychiatrist who was fluent in Arabic. See R v Al-Harazi (No 2) [2016] ACTSC 273.
3. Mr Al-Harazi was examined by Dr Abdulatif Burhan on 16 September 2016 for two and a half hours. He set out the details he obtained on his examination. I do not need to repeat them in these reasons.
4. He assessed Mr Al-Harazi against the criteria set out in s 311 of the Crimes Act 1900 (ACT), which are the statutory criteria for a finding that a person is unfit to plead, and subsequently found him unfit to plead.
5. Over the Crown's submissions that I should not do so, I reserved the question for inquiry under s 315 of the Crimes Act and vacated the hearing date of the trial. These are my reasons.
6. His findings were set out in his Report as follows:
Answer: I found Mr Al-Harazi to have good understanding of the nature of the charges made by the Crown against him.
Answer: I found Mr Al-Harazi to have the capacity to enter a plea, but his plea of not guilty is influenced by his delusions. He thinks Allah wants him to leave Australia, therefore he will be found not guilty and will be freed to go back to Yemen with his children.
Answer: I found Mr Al-Harazi to have the capacity to understand that the proceeding is an inquiry about whether he committed the offence or not.
Answer: I have some doubts if Mr Al-Harazi will be able to follow the course of the proceeding. My observation and the health records indicate Mr Al-Harazi has a very low stress tolerance and he is mentally unstable to manage the distress, especially if he is challenged.
Answer: I found Mr Al-Harazi to lack the capacity to understand the substantial effect of any evidence in support of the prosecution against him. This is particularly influenced by his delusions. He [is] totally convinced that there is no evidence against him. When asked directly what he thinks about all the witnesses the police will bring to the trial, Mr
Al-Harazi with confidence repeatedly told me with certainty that they have no evidence.
Answer: I found Mr Al-Harazi to have the capacity to instruct his lawyer.
Answer: Mr Al-Harazi appears to have intact memory.
7. On the basis of these conclusions, Mr K Archer, counsel for Mr Al-Harazi, submitted that I should reserve a question for inquiry under s 315 of the Crimes Act as to whether Mr Al-Harazi was fit to plead.
8. In brief, the process, as I have described in R v Al-Harazi (No 2) at [6]-[14], is that the Court must decide under s 312(3) of the Crimes Act if there is a real and substantial question about an accused's person's fitness to plead. If so, then there must be an inquiry under s 315 of the Act.
9. In R v Al-Harazi (No 2) at [70]-[75], I expressed "a real doubt" about whether or not Mr Al-Harazi might be found unfit to plead but adjourned the trial so that a proper psychiatric examination be conducted. That enabled Dr Burhan's Report to be prepared.
10. Notwithstanding Dr Burhan's Report and conclusions, the Crown submitted that there was not "a real and substantial question" about Mr Al-Harazi's fitness to plead.
11. In R v Al-Harazi (No 2), at [19]-[26], I considered the meaning of the terms "real and substantial" in connection with a question as to an accused person's fitness to plead. The answer to which I came is rather convoluted because authority seems to require a number of double negatives. Thus, I held at [25]:
What must be meant is that the material before the Court on the issue of whether there is a real and substantial question about the accused's fitness to plead must be such that no such question arises only if it would not be possible for the body charged with determining whether the accused is fit to plead to have a reasonable doubt about the accused's fitness to plead.
12. Given the consequences of an unaddressed issue of fitness to plead, it is understandable that the threshold is not high, but it is necessary to prevent trials being unnecessarily disrupted by claims that have no substance.
13. In R v Al-Harazi (No 2) at [19] and [21], I suggested that "real" meant "raised in good faith" (see Tier [2001] NSWCCA 53; (2001) 121 A Crim R 509 at 521; [71]) and that "substantial" meant "of real worth or value".
14. The Crown submitted that the religious "delusions" referred to by Dr Burhan were no different from the religious experiences of and reported by many people throughout the world. That religious experience was not evidence of unfitness to plead and that Dr Burhan could not rely on Mr Al-Harazi's religious experiences to justify his findings.
15. Clearly this is not an easy matter. There are many examples of religious experiences of great significance that are reported by many very intelligent, alert persons unimpaired by a diagnosable mental impairment. Thus, as the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (American Psychiatric Association, 5th ed, 2013) at 93, notes in relation to delusional disorders:
An individual's cultural and religious background must be taken into account in evaluating the possible presence of delusional disorder. The content of delusions also varies across cultural contexts.
16. Even William James in his classic consideration of the question, Varieties of Religious Experiences (Harvard University Press, 1985) at 22-29, accepts and acknowledges, despite his overall view of the positive results of religious experiences, that they can be subject to "abnormal psychical visitations" and that this can be the consequence of a "neurotic disposition". He did not assume that experiences have a morbid origin. He conceded at page 374 that our ancestors have confused facts with dreams, hallucinations, and "cock-and-bull stories". In my view, the fact that an experience is described as religious does not render it immune from, in an appropriate case, a description as delusional or pathological.
17. In this case, the Report explained the circumstances where Mr Al-Harazi described Allah as "making Mr Al-Harazi moves [sic] his body out of his own control", asking him "frequently to hate his wife and children" and that he "saw Allah inside himself, which means that Mr Al-Harazi was the only one able to discover Allah's secret". Later, Mr
Al-Harazi decided that "it wasn't Allah who was controlling him, but it was the devil".
18. I am satisfied that despite his reliance of the asserted religious experiences recounted by Mr Al-Harazi, I cannot discount Dr Burhan's opinion to the extent that there is in this respect no real and substantial question as to Mr Al-Harazi's fitness to plead.
19. While that is sufficient for my decision, I should address the other issue of whether Mr Al-Harazi can understand the substantial effects of the evidence against him as that is related to the matter of delusions to which Dr Burhan refers.
20. For this aspect, the Crown relied on a telephone conversation between Mr Al-Harazi and his brother, which had been recorded and translated. In the translated record of the conversation, Mr Al-Harazi is shown discussing the evidence against him as follows:
MAGED [Mr Al-Harazi]: There are no evidences of proof ... the only thing is that AKRAM [child of Mr Al-Harazi and his wife] changed his mind and he is saying that I taught him ... the second evidence is that there was a camera next to our home and it belonged to someone in the street ... the camera was monitoring the movement in the street and they requested the video from him for the day of the incident but they did not see any car that came to our place they couldn't see anything except for my car that was moving ... it went and came back ... they asked me where did you go and came back ... I told them that I went to inform the police and then had to come back to get my wallet because I forgot it at home ... They told me that the camera footage does not show anyone coming to my place.
AMER [brother]: Is this all the evidences they have? ... they couldn't test anything in the crime scene?
MAGED [Mr Al-Harazi]: They said they don't have the knife ... and there is no fingerprints that belong to me ... of course they took all the fingerprints and hair but did not find anything against me ... They are confused ... they want to incriminate me ... they have no evidence except for the camera ... they say there was no other car coming to the house ... concerning the children, they say that I taught them what to say ...
21. The Crown submitted that this was a relatively accurate description of the Crown's evidence in the case, thus showing that Mr Al-Harazi had a good understanding of the evidence against him. As a fact, no knife was found and Mr Al-Harazi's son did initially tell the police that his grandfather and his mother's brother had killed his mother.
22. There are, however, other witnesses. The Case Statement (see R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 at 478-9; [26]- [35]) makes that clear, although there are no eye witnesses to the events, there are other relevant witnesses, including witnesses who gave evidence of facts inconsistent with statements made by Mr Al-Harazi, who will be said to have lied, evidence of witnesses who say that he displayed knowledge of how his wife died despite claiming not to have seen her injuries, and forensic evidence as to matters said to be inconsistent with Mr Al-Harazi's version of events, as well as the evidence of his children.
23. This evidence is more complex than that referred to in the telephone conversation and the implications perhaps more indirect. That requires some level of sophistication not only to understand but also to comprehend the significance of it.
24. This, of course, does not show that Dr Burhan's evidence must be accepted or, indeed, were it to be accepted, Mr Al-Harazi is not unfit to plead. That, in any event, is the question for the next stage.
25. Nevertheless, were the tribunal charged with deciding on whether Mr Al-Harazi is unfit to plead to accept Dr Burhan's opinion, but also what was recorded of Mr Al-Harazi and the evidence of the other witnesses, I am satisfied that it could not be said that a reasonable tribunal would not be properly able to conclude that Mr Al-Harazi is unfit to plead. The evidence is sufficient, if accepted, to justify such a finding that he was unfit to plead, though, of course, if does not mandate it.
26. Accordingly, I was satisfied that there was a real and substantial question about Mr
Al-Harazi's fitness to plead and I reserved the question for inquiry under s 315 of the Crimes Act. I also vacated the trial date and listed the matter for further directions after the Crown, which has indicated that it proposed to have Mr Al-Harazi examined on its behalf by a psychiatrist, would receive the report from that examination.
27. Later, for abundant caution, the Crown sought and ordered under s 315(2)(c) of the Crimes Act that Mr Al-Harazi be required to be examined by Professor Greenberg, the consultant psychiatrist whom the Crown had retained to advise it on the application.
28. I was informed by Mr Al-Harazi's counsel that Mr Al-Harazi consented to being examined by Professor Greenberg. His counsel advised that, were the Crown still seeking the order about that examination then Mr Al-Harazi would consent to me make it. Accordingly, I did so.
29. The matter was listed for further directions on 14 December 2016.
I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Al-Harazi
(2000) 203 CLR 1
(2009) 233 FLR 473