This matter is listed before the Court to determine the question of the accused's fitness to be tried for the offence of murder.
The accused was charged with that offence on 16 August 2013. He was subsequently committed to this Court to stand trial.
The accused was arraigned before Johnson J on 7 August 2015. A fresh indictment was filed today, with the Court's leave, to correct a technical error. The indictment charges that the accused, on or about 14 August 2013, at Granville in the State of New South Wales, murdered Basem Salameh.
The issue of the accused's fitness to be tried for the offence having been raised by the accused's legal representatives, the Court proceeded to hear evidence on that subject pursuant to s 11 of the Mental Health (Forensic Provisions) Act 1990.
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Events Around the Time of the Alleged Offence
Made available to the Court for the purposes of the fitness inquiry was a copy of the Crown Case Statement in relation to the charge against the accused. I do not propose to set out the details of the allegations against the accused, except where it is necessary to do so in relation to the question of fitness.
Very broadly, the accused is alleged to have participated with two others in the murder of a man known to them, at an apartment in Granville on the night of 13 August 2013, or into the early hours of the following morning. The death of Bassam Salameh involved considerable violence.
The accused was arrested by police on 16 August 2013 and interviewed. A transcript of the interview between the accused and investigating police of that day is in evidence as Exhibit B1. During the interview the accused denied any involvement in the deceased's murder. He was quite discursive throughout the interview, becoming agitated towards its end.
After various forensic procedures were conducted the accused was allowed to leave.
A second interview was conducted on 19 August 2013 (Ex. B2). During that interview the accused gave a detailed account of events surrounding the deceased's death. His account was odd to say the least. In some significant regards, his claims were not borne out by the clinical findings of the forensic pathologist who conducted the post mortem examination of the deceased.
After the accused was arrested statements were obtained from a number of family members, in evidence as Exs. C to G.
The accused's family had observed changes in the accused's behaviour from 2011 or thereabouts, with what seems to have been a significant deterioration in his conduct. His family thought he may have been using the drug known as "ice".
On the afternoon of 13 August 2013 the accused's mother saw her son walking down a street in Granville. She was distressed by his appearance, noting that he was dishevelled and seemed drug affected.
The following evening, 14 August 2013, the accused returned to his family home in Granville. He was malodorous and dirty.
The following day the accused became very aggressive towards his mother, accusing her of having stolen his money, and calling her "a fucking bitch" and "the devil". He later began crying and saying "they" would kill him if he didn't give them money. He was very agitated, and spoke of worshipping the devil and killing himself. Eventually he left the house.
On 17 August 2013 the accused's mother and other family members saw him in the street in Granville. The accused was distraught and gave a bizarre account of what had happened to the deceased and of his role in the events. He made references to being in danger from "them", stating that they would kill him if he "snitched".
On 19 August 2013 the accused was arrested and charged by police. The second interview, referred to above, was conducted.
On being entered into custody the accused was seen at various times by Justice Health staff. His behaviour was noted to be "erratic" but there does not appear to have been a formal diagnosis of psychosis (Ex. H). His behavioural issues were initially regarded as originating from the difficulties the accused had withdrawing from drugs.
In the following months the accused's conduct sparked some concerns with prison staff, and he was examined by medical staff. On 21 January 2014 the accused was noted to be unshaven with patches missing from his hair. There was marked psychomotor agitation and he appeared suspicious of those around him. He was having trouble sleeping. The accused reported hallucinations; he had been seeing the deceased walking around his cell. His speech was tangential and he gave inappropriate answers.
On 22 January 2014 the accused was seen by a psychiatrist, Dr Hearps. The accused again reported hallucinations centred on the deceased. He was suspicious, with tangential thought and speech. Dr Hearps thought the accused had schizophreniform disorder evidenced by hallucinations and thought disorder. The accused was started on Olanzepine.
On 29 January 2014 Dr Hearps saw the accused again. He reported some improvement. There was a diagnosis of schizophreniform disorder.
Another psychiatrist who saw the accused in February 2014 thought he had pseudo-hallucinosis and post-traumatic spectrum disorder rather than schizophreniform disorder. The possibility of a brief reactive psychosis was raised. This possibility was later confirmed.
Also in February 2014 the accused made threats of self-harm and of violence towards another prisoner.
By October 2014 it was thought that the brief reactive psychosis had resolved although the accused remained illogical and tangential in expression. He continued to make occasional reports of hearing voices.
Although the accused was not previously medically examined for a mental illness prior to his incarceration, such symptoms have been noted.
The accused was admitted to Westmead Hospital emergency department on 4 April 2013, with self-inflicted injuries to his right hand. The hospital notes (Ex. J) record his irrational speech, and refer to suicidal ideation.
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Evidence as to the Accused's Current Mental State
During the progression of the criminal charge through the Local Court the accused was represented by a solicitor. Senior Counsel was later briefed to appear for him.
In July 2015 the accused withdrew instructions from his then representatives. Mr Peter Murphy, solicitor, was subsequently instructed to appear for the accused.
Mr Murphy's affidavit of 1 October 2015 (Ex. 1) was read before the Court.
Mr Murphy saw the accused on a number of occasions after he was retained, and on each occasion he found the accused difficult to engage in meaningful conversation about the charge against him, and the accused frequently became aggressive, with his comments tangential. The accused made inapposite comments about hearing voices, and waiting for a number.
Mr Murphy deposes that he has been unable to obtain any detailed or meaningful instructions from the accused in his various conferences with him.
Mr Murphy retained Dr Stephen Allnutt, forensic psychiatrist, to examine the accused. In evidence is a report from Dr Allnutt of 28 September 2015 (Ex. 1.1). The doctor was briefed with relevant documentary material, and saw the accused personally.
Dr Allnutt conducted a clinical evaluation of the accused via audio-visual link on 22 June 2015. After some difficulty in again gaining access to the accused, he examined him for a second time on 23 September 2015.
Initially, the accused's presentation was unremarkable. He reported a good appetite, good sleep patterns, and appropriate interest in activities. He denied having visions, or hearing voices. He did not seem to endorse persecutory thoughts.
After some short time however, Dr Allnutt found the accused less appropriately responsive. Although he denied receiving messages from the television for example, he went on to comment about information about a quiz being received through the media. He told Dr Allnutt he was not allowed to say anything more about it.
When the subject of his more unusual comments to Mr Murphy was raised, the accused claimed not to know or not to recall having made them. Dr Allnutt thought that the accused was unwilling to engage with him on this aspect of events.
When Dr Allnutt asked questions of the accused directed to gauging his capacity to meet the Presser criteria (R v Presser [1958] VR 45) the answers given suggested, at the very least, an odd degree of disengagement from the criminal justice system in which the accused was entangled. He referred to lawyers as talking "too much shit" and the role of the prosecution as being "to fuck my life up". The judge was there, he said, to send him to heaven or hell. The accused said that, as to providing his lawyer with instructions, he would "let him do what he wants".
After a time the accused became abusive and aggressive, and expressed considerable suspicion of both the doctor and his lawyers.
Dr Allnutt's opinion is that the accused manifests a chronic psychotic disorder, possibly a schizoaffective disorder. He regards paranoid schizophrenia or bipolar disorder with secondary psychosis as a possible diagnosis. Given the accused's history of drug use, a drug-induced psychosis may have persisted.
Dr Allnutt thought that the accused was difficult to engage due to the active symptoms of mental illness. Whilst his initial presentation was belligerent and oppositional, the doctor concluded that he continues to manifest psychotic symptoms. Dr Allnutt discounted the possibility that the accused is malingering.
Although Dr Allnutt thought that the accused has the capacity to meet many of the Presser criteria, he has concluded that he is unfit to be tried.
Whilst the accused has the capacity to understand the charge against him, the general nature of the proceedings, the substantial effect of evidence adduced, and the ability to decide on his defence and plead to the charge, he does not have, in the doctor's opinion, the uncompromised capacity to instruct his lawyers and to tell the court his version of relevant events.
Dr Jonathon Adams, forensic psychiatrist, saw the accused on 29 September 2015 and 7 October 2015. He prepared a report, (misdated) 8 August 2015 (correctly 8 October 2015), admitted into evidence as Ex. A.
The accused was agitated when seeing Dr Adams, and was both guarded and disengaged in conversation with him. He told Dr Adams, "Maybe you need the light... I'll walk away from you ... you're full of darkness."
He was distracted and, although he confirmed hearing voices, he was unwilling to discuss them to any great extent. He denied thought interference more generally, although he claimed to have visions from God.
The accused became increasingly disengaged when interviewed by Dr Adams. He mumbled and occasionally appeared to be responding to hallucinatory phenomena. Dr Adams thought that the accused manifested features of thought disorder and that he professed views consistent with delusional beliefs. He seemed to experience hallucinations.
Dr Adams questioned the accused to elucidate his understanding of the court process. The accused was unwilling to talk about the events surrounding the death of the deceased, or to discuss his plea. He gave an account of the meaning of the pleas of guilty and not guilty which, whilst rudimentary, was not incorrect.
He had some understanding of the functions of some of the personnel in the Court room, but seemed confused about that of others. He claimed not to know the role of his own lawyer. He demonstrated a lack of understanding of the role of the jury, and of the concept of a challenge to a juror.
Dr Adams concluded that the accused manifested symptoms of psychosis on examination, including likely hallucinatory phenomena, delusional beliefs and underlying persecutory ideation. He considered that the accused's psychotic symptoms are most likely to be indicative of a schizophrenic illness or a schizoaffective disorder, being a combination of psychosis and a mood disorder. There is also, in his view, the possibility of a substance abuse disorder.
Dr Adams was concerned by the accused's mental state, and in particular his disordered thought processes, guarded and suspicious manner, agitation, hallucinatory phenomena, likely delusional beliefs, and his unwillingness to engage in the assessment process. He was of the opinion that the accused lacked the capacity to follow the court processes, to give a version of events, and to instruct his legal representatives. He concluded that he did not satisfy the Presser criteria to a minimum standard.
Although Dr Adams found it difficult to predict whether the accused would become fit within twelve months, he thought it was possible that, with proper medical treatment, the accused could be considered fit in that period.
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Consideration
Both doctors referred to the "Presser criteria" and those criteria are well established. They derive from the Victorian decision of R v Presser [1958] VR 45, as affirmed in Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 245. To be fit to be tried, the accused needs,
"... 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 proceedings, namely, that it 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 Court in a general sense, though he need not, of course, understand all the formalities. He needs to be able to understand 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 by letting his counsel know what his version of the facts is and, if necessary, telling the Court what it is. 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."
There is unanimity between the doctors who have examined the accused for the purposes of these proceedings that he does not have the capacity to meet these criteria, and is not presently fit to be tried.
Section 12 of the Act provides that an inquiry into an accused person's fitness is to be conducted in a non-adversarial manner, and the hearing has proceeded in that way. Indeed, as with Drs Allnutt and Adams, there is unanimity between senior counsel for the Crown and senior counsel for the accused that the evidence supports a conclusion that the accused is not presently fit.
It is clear on the evidence that the accused has been exhibiting behavioural deterioration for some years, with his family observing those changes around three years prior to the date of the commission of the alleged offence. His deterioration is likely to correspond with his use of illicit drugs, including the very dangerous form of amphetamine known as "ice".
Some of the things said to police in the days following the death of the deceased are bizarre to say the least, and may of themselves suggest the presence of mental illness.
The accused's presentation on admission into custody was sufficiently odd that it was noticed, and the accused was examined. Although the diagnosis from psychiatrists and other doctors who saw the accused through Justice Health has not been always consistent, there is enough in the Justice Health notes to clearly flag the likelihood of a mental illness. That is confirmed by the notes from Westmead Hospital which pre-date the commission of the alleged offence.
Drs Allnutt and Adams have both concluded that the accused is not fit, and I accept the evidence of each.
Having considered all of the evidence, and noted the requirements set out in Presser and Kesavarajah, I am satisfied that the evidence establishes that the accused is unfit to be tried, and I make that finding.
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orders
The orders of the Court are as follows:
1. Pursuant to section 14 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") I find that the accused, Daniel Azar, is unfit to be tried for the offence of murder.
2. In accordance with s 14 of the Act, I refer this matter to the Mental Health Review Tribunal.
3. Pursuant to s 14(b)(iii) of the Act, I remand the accused in custody, pending further orders of the court.
4. I direct the Supreme Court Registry to provide the following documents to the Tribunal:
1. A copy of this judgment;
2. A copy of any orders made for detention;
3. A copy of the exhibit papers tendered to this inquiry, being Exhibits 1 and Exhibits A to J; and
4. The Crown Case Statement.
1. The accused's trial date of 9 November 2015 is vacated.
2. The s 77 order for 9 November 2015 is revoked.
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Decision last updated: 12 October 2015