The accused Ihsas Khan has pleaded not guilty on the grounds of mental illness to an indictment alleging that on or about 10 September 2016 at Minto in the State of New South Wales, he engaged in a terrorist act and in the alternative, that he wounded Wayne Greenhalgh with intent to murder him. The first of those counts is contrary to s 101 of the Criminal Code 1995 (Cth) ("the Code"). The alternative count is contrary to s 27 of the Crimes Act 1900 (NSW) ("the Act").
The Crown case is that on 10 September 2016, the accused was armed with a knife, and saw Mr Greenhalgh walking along a street in Minto. He stabbed him repeatedly, shouting "allahu akbar" and making reference to (inter alia) "brothers being killed in Syria". There is no dispute about the circumstances of the attack on Mr Greenhalgh. The sole issue, as would be evident by the accused's pleas, concerns his mental state at the time of the attack.
The accused's trial initially commenced before me on 30 April 2018, but the jury was discharged on 2 May 2018 for reasons given at the time: R v Khan (No 1) [2018] NSWSC 577. The current trial commenced on 2 May 2018. By 9 May 2018, the proceedings had reached the stage where the totality of the evidence surrounding the incident had been adduced by the Crown, leaving only the Crown's expert, Professor Greenberg, to give evidence before the closure of the Crown case.
On 10 May 2018, it was reported to me that the accused had acted inappropriately towards a number of Corrective Services officers who were responsible for his custody. His behaviour was reported to have been violent and to have involved, amongst other things, spitting at those officers. As a consequence, and with the assistance of Dr McKinnon, the Co-Director, Forensic Mental Health (Clinical) at the Justice Health and Forensic Mental Health Network, the accused was examined in custody on Friday, 11 May 2018 by Dr Watts, Psychiatrist. The results of that examination were reported to the court by Dr McKinnon and are summarised in MFI31 in the following terms:
The diagnosis is one of a relapse of the accused's schizophrenic condition due to his non-compliance with his prescribed medication, namely Olanzapine 15mg.
The accused stopped taking his medication approximately 5 to 6 days ago, which has resulted in that relapse. His symptoms upon relapse included hearing voices of the devil telling him to do things (which explains the spitting at the officers) as well as delusions of reference, meaning that he thinks that people are talking about him.
When accused patients go to court early, the ingestion of any prescribed medication cannot be supervised. They are given the medication to take later in the day. This is what occurred with the accused. It would appear that despite being given it, the accused has not taken his medication for the past 5 or 6 days.
He is now taking his medication again and that will be supervised. This will hopefully lead to a stabilisation of his condition.
Dr Watts' opinion is that the accused is 'OK' from the point of view of fitness to stand trial. Specifically, the accused understood the proceedings and was able to give instructions to his lawyers. The accused expressed a wish to proceed with the current trial.
Ideally the accused would benefit from a longer period of supervision in the order of 10 days to 2 weeks so as to confirm the stabilisation of his condition.
Following the examination by Dr Watts, arrangements were made by those representing the accused for an examination to be conducted by Dr Jonathon Adams, Psychiatrist, on 14 May 2018. In the intervening period, I was provided with an affidavit of Helen Shaw, the accused's solicitor, of 11 May 2018. It is not necessary for present purposes to recount the entirety of Ms Shaw's affidavit. It is sufficient to note that she deposed to various conversations that she has had with the accused over the past several days, and various observations that she has made of him in the course of the proceedings, which have caused her to have concerns about his fitness to stand trial. Equally, it might be said that at least some of the matters to which Ms Shaw deposed indicate, at least at a prima facie level, that despite his difficulties the accused has remained able to understand the proceedings.
Dr Adams examined the accused and provided a report to the court on 15 May 2018. He conducted an assessment of the accused's fitness to stand trial by reference to the criteria set out in R v Presser [1958] VR 45 at 48. Dr Adams expressed the view that the accused's level of thought disorder, the intrusiveness of his delusional beliefs, and his mood, all had an impact upon "important areas of the Presser standards". He questioned the accused's "capacity to fully understand the evidentiary issues as a result of his psychotic symptoms". He also considered that concerns expressed by the accused regarding the fairness of the trial process, and his legal representatives, were indicative of an underlying paranoia which was compounded by a misunderstanding of the legal process, all of which had been brought about by his deteriorating mental state. All of these matters, in Dr Adams' opinion, impacted on the accused's capacity to provide instructions to his legal representatives.
Dr Adams concluded by stating the following:
Therefore, I have significant concerns regarding Mr Khan's capacity to satisfy the Presser minimum standards. I also have significant reservations regarding Mr Khan's capacity to follow a potentially lengthy criminal trial, given the trajectory of his mental state thus far, and the likelihood of a further deterioration...Hence, at the time of my assessment in my view the Court would most likely find Mr Khan unfit to stand trial.
Following the examination by Dr Adams, the Crown arranged for Professor Greenberg to examine the accused on 15 May. Professor Greenberg's examination was hampered by the fact that he was unable to interview the accused in the usual legal offices at the Metropolitan Remand and Reception Centre. This was due to the fact that it had been reported by Corrective Services that the accused had spat at an officer that morning, and had reportedly kicked another officer in an unprovoked manner. Understandably, there were concerns, not only for the safety of Corrective Services staff, but for the safety of Professor Greenberg, as a consequence of which a decision was made that the accused would not be moved from his cell for the purposes of the examination. This led to a situation where Professor Greenberg interviewed the accused through a locked steel door, in circumstances where a number of other prisoners from the unit remained outside the door and in the immediate vicinity. Professor Greenberg reported that the accused was co-operative in speaking with him. He said that he could hear him fairly clearly, although at times he had to repeat questions he asked of him.
The report of Dr Greenberg which was provided to the court following this examination is a lengthy one. However as I commented to the Crown, it seems to me that a number of fundamental propositions can be distilled from it. Firstly, and stemming from the matters that I have just summarised, the circumstances in which Professor Greenberg examined the accused were, to say the least, less than ideal, although I accept that they were put in place for very good reason. Secondly, whilst the accused asserted to Dr Greenberg that he did not understand his pleas, that he did not understand the course of the proceedings, and that he did not understand the nature of the proceedings, Professor Greenberg appears to have viewed at least some of those assertions with what might be described as a degree of scepticism. Thirdly, Professor Greenberg came to the view that he could not fully assess the accused, and could not form an opinion as to whether or not the accused appreciated the substantial effect of the evidence which had been given. Fourthly, Professor Greenberg expressed the view that he could not fully assess the accused, or express any opinion as to whether or not the accused could properly decide on his defence. Fifthly, he expressed uncertainty as to whether or not the accused would have difficulty instructing counsel. Ultimately, he concluded that he was unable to express an opinion that the accused was currently fit to stand trial.
In reaching those views, Professor Greenberg noted that part of his difficulty stemmed from the lack of unfettered access to the accused. He also expressed concern about those parts of the affidavit of Ms Shaw in which reference was made to the accused's inability to give instructions. In the end result, Professor Greenberg was of the opinion that further psychiatric assessment, care and treatment were required, in order to enable him to reach an affirmative conclusion about the issue of the accused's fitness to stand trial.
The position in which I now find myself is complicated by the fact that the indictment presented against the accused contains one count contrary to the Code and an alternative count contrary to the Act. As a consequence, there are two separate regimes governing the assessment and determination of the accused's fitness to stand trial. The differences in those regimes was discussed by Whealy J in R v Sharrouf [2008] NSWSC 1450 commencing at [5]. However, although many aspects of the respective regimes are different, the first step to be taken is common to both, and is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFPA"). Section 9 of the MHFPA is in the following terms:
9 Procedure where question of unfitness raised after arraignment
If the question of a person's unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence.
Section 10 of the MHFPA sets out the procedure which must be adopted when a question of unfitness is raised. That section is in the following terms:
10 Procedure on raising question of unfitness
(1) If, in respect of an offence:
(a) the Court determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or
(b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence, the Court must (except as provided by this section), as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.
(2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.
(3) Before conducting an inquiry, the Court may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the accused person bail in accordance with the Bail Act 2013,
(c) remand the accused person in custody for a period not exceeding 28 days,
(d) request the accused person to undergo a psychiatric examination or other examination,
(e) request that a psychiatric report or other report relating to the accused person be obtained,
(f) discharge any jury constituted for the purpose of those proceedings,
(g) make any other order that the Court considers appropriate.
(4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.
Section 10(1)(b) makes reference to the question of a person's unfitness being "raised". As far as I can ascertain, there has been no judicial determination of what is meant by raising the question and accordingly, the phrase is to be given its normal meaning. Clearly, the reports of Dr Watts, Dr Adams and Professor Greenberg raise the question of the accused's fitness. Although Dr Adams and Professor Greenberg are presently unable to come to an affirmative conclusion about the accused's fitness, the threshold set by s 10(1)(b) requires only that the issue be raised. That is a low threshold. It does not require that the issue of fitness be determined at this point.
Where the question of fitness is raised in good faith, s 10 mandates the course to be followed, even if that necessitates the discharge of the jury: R v Zhang [2000] NSWCCA 344. There is certainly no issue that the question of the accused's fitness has been raised in good faith in the present case: R v Tier [2001] NSWCCA 53.
Accepting all of that to be the case, both the Crown and senior counsel for the accused have submitted that s 10 mandates that the jury be discharged, and a separate hearing take place before a judge alone for the specific purpose of determining the accused's fitness to stand trial. I agree.
Necessarily, because of the present state of the expert evidence, further medical assessments will have to be carried out. In light of the evidence before me, it is in my view preferable, if not essential, that those assessments not be carried out until a period of three to four weeks has elapsed, during which period the accused's state should be closely monitored by Justice Health. In particular, his adherence to the medication regime which has been prescribed should be closely monitored. That will hopefully result in some greater stability in his mental state, so as to facilitate further assessments being carried out for the assistance of the court. I will have these views conveyed to Dr McKinnon.
For all of those reasons I make the following orders:
1. The jury is discharged.
2. The proceedings are listed before me for further directions at 9.15am on Monday, 9 July 2018 with a view to setting a hearing date to determine the issue of the accused's fitness to stand trial.
[2]
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: 17 May 2018