R v Aliwijaya

Judgment 1HER HONOUR: Mohamed Aliwijaya stands charged with the murder of Robson Pham on 24 April 2010. The accused elected for trial by judge alone and was tried by me on 14 May 2012. This judgment records my verdict in the trial, together with my reasons for reaching the verdict.

Fitness to be tried 2Before the trial commenced, I determined that the accused was, on the balance of probabilities, fit to be tried for the offence. It was necessary to consider that question because he had previously been found unfit (on 8 August 2011): see R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924 per Hidden J (it appears he has also been found unfit to be tried for a separate offence that is not before this Court). As a result of that finding, the accused was referred to the Mental Health Review Tribunal in accordance with s 14 (a) of the Mental Health (Forensic Provisions) Act 1990. 3Section 15 of the Act creates a statutory presumption that a person who has been found unfit continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case. 4On 13 December 2011, after reviewing the case, the Tribunal gave notice to the Court in accordance with s 47(5) of the Act of its opinion that the accused had become fit to be tried. Section 29 of the Act mandates a further inquiry by the Court as to the person's fitness in that circumstance. 5The question of fitness is to be determined by the judge alone: see s 11(1) of the Act. The determination must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 11(2) of the Act. 6The principles for determining whether a person is fit to be tried are stated in R v Presser [1958] VR 45 at 48 per Smith J. Those principles have since been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 at 8 and Kesavarajah v The Queen (1994) 181 CLR 230 at 246.6. In Presser, Smith J said: [An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in a court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able 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, if any. 7The Crown submitted that the Court should be satisfied on the balance of probabilities that the accused was fit, as at the time of his trial, to be tried for the offence. Mr Smith, who appeared for the accused, joined in that submission. 8The evidence relied upon by the Crown on the issue of fitness was the determination of the Mental Health Review Tribunal to which I have already referred together with a report dated 20 January 2012 obtained by the Crown from Professor David Greenberg, forensic psychiatrist, and a report dated 23 April 2012 obtained on behalf of the accused from Dr Richard Furst, consultant forensic psychiatrist (collectively marked Exhibit C). 9The determination of the Mental Health Review Tribunal arose from the Tribunal's fourth review of the case of the accused. In conducting that review, the Tribunal had the benefit of a detailed report from the accused's multidisciplinary treating team. The Tribunal also heard oral evidence from the accused's legal representative, Ms Dalumpines (from the Mental Health Advocacy Service); Dr John Kasinathan, the accused's treating psychiatrist and Ms Lekahiyn, the accused's mother. 10Dr Kasinathan assessed the accused to be fit to stand trial and fit to plead by reference to the Presser criteria. In his oral evidence before the Tribunal, Dr Kasinathan explained the reason the treating team had reached that conclusion notwithstanding earlier unfitness findings by two courts. Dr Kasinathan stated that his assessment had to be understood in the context of the fact that the accused is a young man with treatment resistant schizophrenia who was only commenced on the drug Clozapine within the last year. 11Dr Kasinathan explained that Clozapine takes time to take effect and that earlier fitness assessments had been conducted at a time before the accused had responded to the drug. It was Dr Kasinathan's opinion that the dose of Clozapine administered to the accused had resulted in a gradual but sustained improvement in his psychosis and that, whilst he is not cured, he is much improved from his earlier condition. 12The accused's solicitor, Ms Dalumpines, had also taken him through the Presser criteria and, having done so, concurred with Dr Kasinathan's report. The accused's mother gave evidence that she had noted a great improvement in her son's condition since his admission as a forensic patient. 13Following the determination of the Tribunal that the accused was fit to be tried, the accused was re-assessed by Professor Greenberg and Dr Furst. Professor Greenberg assessed the accused on 4 January 2012 by reference to the Presser criteria. He concluded that the accused was fit to plead and stand trial, stating: Mr Aliwijaya understands the charges he is currently facing. Mr Aliwijaya understands the various pleads to the charge, including the plead of guilty, not guilty and not guilty by reason of mental illness. He generally understands the nature of the proceedings, that it is an enquiry into the veracity of allegations against him. I am of the view that he generally could understand the course of proceedings and the functions of the officers in Court. He stated that the role of the Judge was to give judgment based on the evidence and pass sentence. He stated that his lawyer's role was to defend him whilst the prosecutor prosecutes him. He initially did not know how many members there were on the jury but after being reminded it was twelve and not ten, he retained this information. He understood how the jury was selected and their role if he had a jury in Court. In my opinion he had the capacity to exercise his right to challenge the jurors. He understood that he was the accused and the role of the witnesses. 14Dr Furst was of the same opinion. He stated: He now has a better understanding of the charges he is facing in the legal options available to him. He was able to make his version of the events known to myself and could probably do so in a trial setting if so required. He understood the various roles of the judge, jury, his own legal representatives and the public prosecutor. He understood what evidence was and had sufficient cognitive capacity to pay attention to what was said in court and understand court proceedings in the general sense. 15After considering that material, I asked counsel for the accused, Mr Smith, whether he had been able to communicate with the accused on the morning of the trial and comfortably obtain such instructions as he required. He indicated without any equivocation that he had been able to do so. 16I accepted the uncontested opinions of the two psychiatrists, Professor Greenberg and Dr Furst, that the accused was fit to be tried. I also had regard to the fact that there was consensus between them as to the availability of the defence of mental illness, which meant that the complexity of the trial would be substantially reduced. Further, I took into account the fact that the estimated length of the trial was only one day: cf Kesavarajah at 246. In the circumstances, I was satisfied on the balance of probabilities that the accused was fit to be tried.