It is decided that Maged Mohammed Ahmed Al-Harazi is not unfit to plead.

CRIMINAL LAW - JURISIDICTION, PRACTICE AND PROCEDURE - Fitness to plead - conclusions of investigation into the fitness of the accused undertaken - accused not unfit to plead - s 311 of the Crimes Act 1900 (ACT)

Crimes Act 1900 (ACT), ss 311, 312, 312(1), 314(1), 315, 315(1), 315A, 315A(1)(b), 315A(1)(b)(ii),

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 12(2)

Juries Act 1967 (ACT), s 31

Mental Health (Forensic Provisions) Act 1990 (NSW), s 12(2)

Eastman v The Queen [2000] HCA 29; 203 CLR 1

Kesavarajah v The Queen (1994) 181 CLR 230

Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1

R v Al-Harazi (No 2) [2016] ACTSC 273

R v Al-Harazi (No 3) [2016] ACTSC 290

R v Bugmy [2009] NSWSC 1215

R v Monaghan [2009] ACTSC 61

R v Presser [1958] VicRp 9; [1958] VR 45

Dan Howard SC and Bruce Westmore, Crime and Mental Health Law in New South Wales (LexisNexis, Butterworths, 2nd ed, 2010)

Legal Aid ACT (Accused)

1. On 21 September 2016, I reserved for investigation under s 315 of the Crimes Act 1900 (ACT) a question about the fitness to plead of Maged Mohammed Ahmed

Al-Harazi. See R v Al-Harazi (No 3) [2016] ACTSC 290.

2. By the time I made my decision to reserve the question for investigation, Mr Al-Harazi had already been examined by two psychiatrists retained by his lawyers. The first was Dr Stephen Allnutt, a well-known and respected consultant forensic psychiatrist who came to the view that he was "suspicious that [Mr Al-Harazi] might have a mental illness" but was "unable to be definitive at this stage".

3. He sought a further opportunity to re-assess him prior to concluding his opinion. See R v Al-Harazi (No 2) [2016] ACTSC 273 at [33]- [34].

4. I also noted at [36]-[37] that Dr Allnutt recommended that an Arab-speaking psychiatrist should examine Mr Al-Harazi and an Arab-speaking psychiatrist was located.

5. Because of that opportunity, and the uncertainty of the question about Mr Al-Harazi's fitness to plead, I vacated the trial date and adjourned the matter. Subsequently, I received the report from the Arab-speaking psychiatrist, Dr Abdulatif Burhan, the second psychiatrist, and it was on the basis of his comments, where he expressed doubts about Mr Al-Harazi's ability to follow the course of the proceedings and found that he lacked the capacity to understand the substantial effect of any evidence in support of the prosecution against him, that I vacated the trial date. See R v Al-Harazi (No 3) at [6].

6. Since then, however, I have had two further substantial reports, one from Professor David Greenberg, Consultant Psychiatrist, and one from Dr Allnutt, together with a further email report from Dr Burhan.

7. In summary, both Dr Allnutt and Professor Greenberg conclude that Mr Al-Harazi is fit to plead.

In terms of meeting the criteria for fitness to plea [sic], I agree that Mr Al-Harazi probably meets all the necessary criteria, but in my opinion from reading the two reports, Mr Al-Harazi is still influenced by his delusions which means he is going to respond according to what 'Allah' tells him.

9. Subsequently, the matter was listed for hearing of the investigation on 10 February 2017.

10. Having considered the three reports, I then concluded at that hearing that Mr Al-Harazi was fit to plead. These are my reasons.

11. In Eastman v The Queen [2000] HCA 29; 203 CLR 1 at 14; [24], Gleeson CJ said:

Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial.

12. It is important for a justice system that it be fair and it would undoubtedly be unfair to prosecute and thereafter punish a person who was unable to participate at an appropriate level in the trial. A finding of unfitness to plead constitutes a recognition that the accused person is incapacitated from participating in her or his trial to the requisite level. That is to say, it is a finding that the accused is incapable of participating in the trial at a level which the law regards as the minimum capacity which an accused person must have in order that the trial be fair. Indeed, as Gaudron J said in Eastman v The Queen at 21-2; [62]:

The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. Certainly, that is the position where the issue of fitness to plead is raised before or during trial. If a person stands for trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, "no proper trial has taken place [and the] trial is a nullity". To put the matter another way, there is a fundamental failure in the trial process.

[footnotes omitted]

13. This is the reason that the question of an accused person's fitness to plead is so important and why care has been taken in this case to ensure that Mr Al-Harazi has been carefully assessed and a proper decision made.

14. Based on the test established by the Supreme Court of Victoria in R v Presser [1958] VicRp 9; [1958] VR 45 and adopted by the High Court in Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230, s 311 of the Crimes Act sets out the meaning of when an accused is unfit to plead as follows:

311 When a person is unfit to plead

(1) A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot -

(a) understand the nature of the charge; or

(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c) understand that the proceeding is an inquiry about whether the person committed the offence; or

(d) follow the course of the proceeding; or

(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) give instructions to the person's lawyer.

(2) A person is not unfit to plead only because the person is suffering from memory loss.

15. Proving that a person is unfit to plead does not follow the usual rules of adversarial proceedings. Thus, s 312 of the Crimes Act provides for presumptions and the onus and the standard of proof. The section provides:

312 Presumption of fitness to plead, standard of proof etc

(1) A person is presumed to be fit to plead.

(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.

(3) The question of a person's fitness to plead -

(a) is a question of fact; and

(b) is to be decided on the balance of probabilities.

(4) No party bears a burden of proof in relation to the question.

16. As noted in [1] above, I reserved a question about Mr Al-Harazi's fitness to plead for investigation under s 315 of the Crimes Act. That required an adjournment of the trial which I did.

17. The procedure for investigation is not clearly articulated in the Crimes Act. Section 315A gives some guidance. It provides:

315A Investigation into fitness to plead

(1) On an investigation into a defendant's fitness to plead -

(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and

(b) if the court considers that it is in the interests of justice to do so, the court may -

(i) call evidence on its own initiative; or

(ii) require the defendant to be examined by a psychiatrist or other health practitioner; or

(iii) require the results of the examination to be put before the court.

(2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant's privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.

(3) The court must decide whether the defendant is unfit to plead.

(4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.

18. This clearly contemplates that the Court will hear evidence about the issue of the accused's fitness to plead.

19. Ordinarily, that evidence will come from psychiatrists who will have examined the accused. That is not essential, for the evidence may come in another way, such as from the accused's counsel, as in R v Bugmy [2009] NSWSC 1215 at [13]- [15].

20. The relevant evidence, however, may also come from affidavits made by family members, work colleagues, hospital staff, and other health professionals such as the accused's general practitioner, or from custodial staff, if they can attest to relevant facts.

21. As also noted above (at [2]-[5]), Mr Al-Harazi's lawyers had already arranged for reports to be obtained from two psychiatrists. Those reports were rather provisional however, and his lawyers proposed to obtain a further report from Dr Allnutt, which they did.

22. In this case, the Crown, which strenuously opposed a finding of unfitness, sought to have Mr Al-Harazi examined by a psychiatrist it chose. It requested Professor Greenberg to examine him.

23. It can cause practical problems if an accused whose fitness is in question will not

co-operate with the psychiatrist. There is not much that can be done if that

co-operation is simply not forthcoming. The Court can, however, make an order under s 315A(1)(b) of the Crimes Act.

24. In fact, at the Crown's request and despite the assurances from his lawyers that

Mr Al-Harazi would co-operate, I made orders from time-to-time under s 315A(1)(b)(ii) of the Crimes Act that required Mr Al-Harazi to be examined by Professor Greenberg.

26. The Crimes Act does not specify in any more detail how the investigation is to be conducted. In some jurisdictions, the court is directed that the proceedings are not to be adversarial: see s 12(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW). In some jurisdictions, a jury is empanelled for the purpose: see s 12(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). There is also in some jurisdictions a more detailed procedure specified in legislation for the conduct of the investigation: see R v Monaghan [2009] ACTSC 61 at [17].

27. In R v Monaghan at [17], I considered that the investigation that the Court would conduct was not an adversarial proceeding. This seems to me to flow from the use of the term "investigation", the express provision for the Court to call evidence on its own initiative, the absence of a burden of proof imposed on any party, and the express requirement for the Court to "hearing relevant evidence and submissions put to the Court by the prosecution or the defence", the latter being an apparently unnecessary provision were the Court to be required to proceed in the ordinary adversarial way.

28. There is no provision in the Crimes Act for a jury to be empanelled for the purpose of such an investigation in this Territory and I do not consider that there is a common law power to do so, at least for this purpose. Section 31 of the Juries Act 1967 (ACT) provides the procedure for empanelment of a jury for a criminal trial; by virtue of

s 315(1) of the Crimes Act the trial is adjourned if the Court reserves a question of the accused's fitness to plead. Thus, the investigation is not the trial or part of the trial. The investigation is to be conducted by a judge alone.

29. Other than as provided for in the Crimes Act, the procedure will be at the discretion of the Court, a discretion to be exercised judicially and having regard to procedural fairness.

30. When it came to the investigation on 10 February 2017, both parties tendered the reports they had obtained: Mr Al-Harazi's counsel tendered the further report of Dr Allnutt and the comments of Dr Burhan and the Crown tendered the report of Professor Greenberg. Both submitted that, as a result of the reports, the Court should find Mr Al-Harazi was not unfit to plead.

31. I did consider whether I should accept the submissions of counsel as a consent to such a finding and simply rely on that. After all, as s 312(1) of the Crimes Act provides, a person is presumed to be fit to plead.

32. It seemed to me, however, that, having reserved the question for investigation, which meant that there was "a real and substantial question about the defendant's fitness to plead" (s 314(1) of the Crimes Act), I was bound, at the very least, to read the reports and satisfy myself that I should not decide that Mr Al-Harazi was unfit to plead.

33. Dr Allnutt is a very experienced forensic psychiatrist who has given expert evidence in many courts in New South Wales as well as in this Territory. As well as holding the degrees of Bachelor of Medicine and Bachelor of Surgery, he is a Fellow of the Royal College of Physicians of Canada, a Fellow of the Royal Australian and New Zealand College of Psychiatrists, and a Fellow in Forensic Psychiatry (Canada). He is a conjoint lecturer in the School of Psychiatry of the University of New South Wales.

34. Dr Allnutt identified the material with which he had been provided and set out the course of the two clinical interviews he had conducted with Mr Al-Harazi. He also reviewed the relevant documentation, including Mr Al-Harazi's medical records. The documentation included the records of Mr Al-Harazi's conduct and behaviour while in custody in the Alexander Maconochie Centre, as well as his treatment in the Hume Health Centre, which provides the medical care for detainees at the Alexander Maconochie Centre.

35. Dr Allnutt conducted a Mental Status Examination. See the helpful description of that procedure in Dan Howard SC and Bruce Westmore, Crime and Mental Health Law in New South Wales (LexisNexis, Butterworths, 2nd ed, 2010) at 562-3; [13.9], as follows:

This is one of the most critical aspects of a psychiatric assessment and report. The Mental state examination is an assessment of how the patient is presenting, from a psychiatric perspective, at this time, and provides information leading to the psychiatric diagnosis. This assessment is structured and formalised and includes both a description of the patient, as well as his or her general appearance and demeanour.

Other general observations about the patient should be recorded, including the patient's degree of eye contact and information about the patient's speech. The patient's mood and affect ... must be reported, even if this is normal.

Observations should be recorded about the presence or absence of psychotic phenomena, such as delusions or hallucinations. These symptoms may be given spontaneously by the patient or may be specifically inquired about by the psychiatrist. The patient's general level of alertness should be observed and, where relevant, a detailed cognitive assessment, which records the results of tests examining various aspects of the patient's memory, orientation, attention span and concentration skills, should be performed.

Observations about the patient's level of insight regarding his or her mental illness, if he or she suffers from such a condition, and his or her level of insight into the alleged offending behaviour should be noted.

The psychiatrist will also provide some comment about the patient's level of intelligence. This is different from the intelligence quotient, which might be determined by a psychologist through neuropsychological testing.

36. Dr Allnutt then set out his opinion. He noted that the case was complicated by cultural and language difficulties and also by an absence of documentation from Yemen, where Mr Al-Harazi appears to have had some psychiatric examination and possibly treatment. He set out a background to his opinion, and found that Mr Al-Harazi experienced symptoms of depression and anxiety.

37. As to whether he has a chronic psychotic disorder and is currently psychotic, Dr Allnutt identified 15 factors against such a diagnosis and 14 factors in favour of such a diagnosis. The conclusion was, of course, not simply a mathematical balancing of these facts.

38. In addressing the question then, of whether Mr Al-Harazi could be diagnosed with a psychiatric illness, Dr Allnutt noted the lack of objective evidence of a diagnosis prior to the death of Mr Al-Harazi's wife, which is the subject of the present charges, and the reports of laypersons who have language or cultural affinity with Mr Al-Harazi and who had come to the view that he is unwell. He acknowledged the opinions of an Arab-speaking psychologist and also the opinion of Dr Burhan.

However, on balance, my opinion on the diagnosis of a chronic psychotic disorder is equivocal. I am not able to exclude the diagnosis at this point, and maintain clinical suspicion.

The main difficulty has been one of culture and language, and I remain guarded as a result of this. This is a case which, in my view, requires prudence and greater involvement of culturally-appropriate clinicians who assess him over time, in his own language, understand his cultural and social background and have the necessary psychiatric expertise to formulate a diagnosis.

40. As to the issue of fitness to plead, Dr Allnutt addressed each of the factors set out in s 311 of the Crimes Act, finding that Mr Al-Harazi had the capacity to meet the capacities specified. He concluded:

Thus overall, your client manifested an adequate understanding of court processes. He gave a rational reason for choosing his plea, which was based on his appraisal of the evidence.

The only concern that is raised in this case with regard to fitness is whether or not, if your client did not have the belief that he was being tortured by God to remain in Australia, he would choose an alternate plea; that is, whether or not his plea of not guilty and his preference for that plea is in some way influenced by giving himself an opportunity to leave Australia as soon as possible (so as to avoid prosecution and psychological distress related to that, which he believes is caused to him by God while in Australia but not in Yemen), and thus bringing in an element of bias when it comes to him balancing his choice of plea.

This is a somewhat difficult issue because to some degree it relies on the decision-maker concluding that the offence occurred and therefore he is choosing a plea inconsistent with the evidence and thus is make a potentially irrational choice, which essentially means it requires the decision-maker to determine the issue of guilt or innocence before a trial.

41. Dr Burhan also holds the degrees of Bachelor of Medicine and Bachelor of Surgery, as well as being a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He is in private practice as a psychiatrist in the Wollongong area with accreditation to the South Coast Private Hospital in that city.

42. Dr Burhan did not appear to have examined Mr Al-Harazi further. His further comments in an email were in response to the opportunity given to him to comment on the reports of Dr Allnutt and Professor Greenberg.

43. While noting that the psychiatric symptoms were severe enough to require treatment, and that psychiatric diagnosis is mostly based on history and observation, rarely on an underlying pathology that can be identified in a laboratory, he agreed that the diagnosis was not straight forward. He agreed that there were many cultural, religious and personal factors that complicated that issue. He was concerned that no Magnetic Resonance Imaging (MRI) tests had not been conducted nor that he had been treated with antipsychotic medication for an adequate period.

44. I have set out above (at [8]), the conclusions of Dr Burhan.

45. Professor Greenberg holds the degrees of Bachelor of Medicine and Bachelor of Surgery, as well as a Masters Degree in Medicine (Psychiatry). He is a Fellow of the Faculty of Psychiatry of the College of Medicine of South Africa and a Fellow in Forensic Psychiatry (Canada), as well as a Fellow of the Royal College of Physicians of Canada, and the Royal Australia and New Zealand College of Psychiatry. He is currently Clinical Director of the NSW Court and Community Liaison Services and Professor of Forensic Psychiatry, conjoint appointment in the University of New South Wales. He also has given expert evidence in many courts in New South Wales.

46. He interviewed Mr Al-Harazi on 14 November 2016. He took a detailed history, which I do not need to set out or summarise. It was generally consistent with the history taken by Dr Allnutt. He, too, conducted a Mental Status Examination.

47. Professor Greenberg clearly had access to the Crown brief of evidence and he set out in his report relevant passages from the material supplied, noting or emphasising various parts of it. In particular, he detailed the medical records of Mr Al-Harazi that were available, as had Dr Allnutt.

48. Professor Greenberg's opinion as to Mr Al-Harazi's mental condition was as follows:

I'm of the opinion that at this time, on balance, Mr Al-Harazi's claims of psychotic symptoms are largely related to his personal and situational stresses, and environmental pressures (Adjustment Disorder), rather than due to an underlying major mental illness such as a functional psychotic disorder. I am of the view that there is a strong cultural and religious component to his presentation. There also may be related personality problems. His reports of psychotic symptoms may not be malingered, but rather factitious in nature (Factitious Disorder) in that he claims he is not clearly presenting with these symptoms for primary gain. The motivation for feigning associated with factitious disorders is a desire to assume a 'sick role' (secondary gain) rather than obvious external incentives such as avoiding legal outcomes. His reports of psychotic symptoms appear to be gradually embellished or increased over his incarcerated period. Over time these symptoms have become more bizarre in nature. There been inconsistencies in his various reports of him hearing voices over time. Also, the content of the voices related to hearing his children or family, but later changed and he now claims he hears God's voice which informs him about all his bizarre beliefs. His self-reported religiosed, grandeosed [sic] or paranoid beliefs have also changed over time.

In summary, I am of the opinion at this time, that Mr Al-Harazi presentation is on balance, related to his current stressful legal situation and prevailing psychosocial stresses. There is also likely a personality element to his presentation. His presentation is likely related to his adjustment disorder and possibly factitious disordered symptoms. As mentioned, I'm of the view that there is strong cultural and religious component to his presentation. There may be an element of malingering with his claims of his symptoms.

I note that after he was admitted to Canberra Hospital, the discharge summary recommended an organic work up to exclude underlying organic causes. In my view, these investigations should be completed.

I'm of the opinion that on balance, Mr Al-Harazi is not at this time, suffering from an acute psychotic disorder where he would fall within the terms of having a mental illness as defined in the 'ACT Mental Health Act' 2015 and requiring involuntary treatment under the 'Act'.

49. As to Mr Al-Harazi's fitness to plead, Professor Greenberg considered each of the criteria in s 311 of the Crimes Act in detail. He concluded:

I am therefore of the opinion that in regard to section 311 of the Crimes Act 1990 and on balance of probability, Mr Al-Harazi is currently fit to plea within the meaning of section 311 of the Crimes Act 1900.

Mr Al-Harazi expressed his sadness with the absence of contact with his children and the fact that he believes he's innocent and should not be in jail. He misses his family in Yemen. He speaks very limited English. It is reported that he has had access to an Iman, a few Arabic speaking inmates and Arabic speaking psychologists. He has some telephonic access to his family in Yemen. During his incarceration, he has received psychological support from the Corrections Services staff. During his trial, he should continue to receive support during this stressful period. He is not been prescribed any medication by ACT Health.

50. I have carefully read and considered the reports from Dr Allnutt, Dr Burhan and Professor Greenberg.

51. Acknowledging the linguistic and cultural advantage that Dr Burhan had in assessing communications and understanding Mr Al-Harazi, I nevertheless do not think that Dr Burhan's guarded acceptance that Mr Al-Harazi "probably" meets the criteria for being fit to plead is any reason to doubt the clearer and unqualified opinions of Dr Allnutt and Professor Greenberg.

52. I note, too, that, despite the earlier concerns of Mr Al-Harazi's lawyers, which appropriately led to this investigation (as to which, see R v Al-Harazi (No 2) at [30]-[31]), no submissions were made to me from his counsel that I should find Mr Al-Harazi unfit to plead.

53. I have carefully considered the reports I have received and I find that Mr Al-Harazi is not unfit to plead.

54. Accordingly, I decided that Maged Mohammed Ahmed Al-Harazi is not unfit to plead. These are my reasons for that decision.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.