Regina v Grant

LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990

R v Presser (1958) VR 45 CASES CITED : R v Rivkin (2004) 59 NSWLR 284 Subramaniam v The Queen (2004) 211 ALR 1; [2004] HCA 51

PARTIES : Regina (Crown) Craig James Grant (Accused)

COUNSEL : Mr MM Hobart SC (Crown) Mr M J Ierace SC (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 JOHNSON J: On 28 July 2008, I conducted an inquiry under the provisions of the Mental Health (Criminal Procedure) Act 1990 as to whether the Accused, Craig James Grant, is unfit to be tried for the offences of murder and attempted murder. 2 The Accused has been arraigned in this Court upon an indictment alleging that, on 30 July 2007, at Fairfield he did murder Jasmine Bell and that on and at the same date and place he did attempt to wound with intent to murder Andrew O'Grady. 3 At the conclusion of the hearing on 28 July 2008, having considered the evidence and submissions of the parties, I announced my finding that the Accused was unfit to be tried and made consequential orders and an associated recommendation. This judgment contains my reasons for making those orders and the recommendation.

Evidence Adduced in the Inquiry 4 By consent, the Crown tendered a number of documents in the inquiry including the indictment, Crown case statement, statement of Mr O'Grady dated 30 July 2007, transcript of the ERISP interview with the Accused on 30 July 2007 together with reports of Dr Olav Nielssen dated 27 November 2007, 22 January 2008 and 29 April 2008 and a report of Dr Samson Roberts dated 16 June 2008. Dr Nielssen examined the Accused at the request of the Accused's solicitor and Dr Roberts did so on behalf of the Crown. No oral evidence was adduced in the inquiry. 5 Both Dr Nielssen and Dr Roberts expressed the opinion that the Accused was unfit to be tried. Both the Crown and Mr Ierace SC, for the Accused, submitted that a finding that the Accused was unfit to be tried ought be made. It remains, of course, for the Court to determine, on the balance of probabilities, whether the Accused is unfit to be tried and, as part of that determination, to record the principles of law applied and the findings of fact on which the Court has relied: s.11(2) Mental Health (Criminal Procedure) Act 1990. 6 In circumstances where the evidence points in one direction and both the Crown and the Accused submit that a finding of unfitness to be tried ought be made, my reasons for reaching such a conclusion may be stated relatively briefly.

Relevant Legal Principles 7 Section 12(3) Mental Health (Criminal Procedure) Act 1990 provides that the onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The proceedings are by way of inquiry which is not to be conducted in an adversary manner: s12(2). 8 The sole question to be determined is whether I am satisfied on the balance of probabilities that the accused is unfit to be tried for the alleged offences of murder and attempted murder: s.6. 9 This issue falls to be determined by application of the Presser test. That test emerges from the decision of Smith J in R v Presser (1958) VR 45 at 48. This is the test concerning fitness to be tried to be applied in an inquiry of this type: R v Rivkin (2004) 59 NSWLR 284 at 294-295 [279]-[286]. 10 In Subramaniam v The Queen (2004) 211 ALR 1; [2004] HCA 51, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ, in a joint judgment, summarised the Presser test in the following way at 5 [9] (footnote 2): "In his reasons, Smith J suggested that before a trial could proceed without unfairness or injustice an accused should meet certain 'minimum standards'. Such minimum standards include the ability to understand the offence with which the accused has been charged, the nature of the proceedings, and the effect of any evidence given against the accused. Additionally, his Honour said that an accused should possess sufficient capacity to be able to decide whether he or she will rely upon a defence, and, if so, be in a position to communicate, either to the court or counsel, the facts necessary for the defence."

It is the Presser test, summarised in that way, which I apply in this case.

The Crown Case Against the Accused 11 It is the Crown case that, in May 2007, the deceased, Jasmine Bell, and her partner, Andrew O'Grady, moved into a guesthouse in Harris Street, Fairfield. Also living in the guesthouse was the Accused. 12 At around 11.30 am on 30 July 2007, Mr O'Grady woke to a knock at the door of their room. He sat up and saw Ms Bell (who was pregnant) standing in the doorway and the Accused trying to push his way into the room. He heard the deceased say "Go away Andrew is asleep". Mr O'Grady then said "What are you doing, get the fuck out" to which the Accused replied "What cunt?". 13 The Accused then produced a knife and moved further inside the room. The knife was approximately 27 centimetres long with a single flat blade. The deceased saw the knife and screamed and tried to move backwards into the room. The Accused said to Mr O'Grady "Say sorry cunt", to which he replied "Sorry". The Accused then said "What are you sorry for, what are you sorry for?" and Mr O'Grady replied "I'm sorry for being rude". At this stage, the Accused was holding the knife out towards both the deceased and Mr O'Grady. The deceased then tried to get around the Accused to get out of the room. As she did this, the Accused lunged forward and stabbed the deceased in the chest. The Accused then swung the knife towards Mr O'Grady who moved backwards to avoid being stabbed. The Accused again made a stabbing motion towards Mr O'Grady's stomach. Mr O'Grady then grabbed the knife and both men struggled over the knife until the blade snapped off in Mr O'Grady's hands. Mr O'Grady then chased the Accused outside the room with the knife blade. 14 Once outside, Mr O'Grady saw the deceased lying on the ground not far from the front door of their room. The Accused ran passed the deceased, out the front yard and jumped the gate running up Harris Street towards Fairfield Railway Station. Emergency assistance was sought for the deceased. However, the treatment was to no avail and she was pronounced dead on arrival at hospital. The deceased died from a stab wound to the chest which pierced her lung and then entered the aorta and pulmonary artery. Mr O'Grady suffered five superficial cuts to his left hand. In addition, he suffered a superficial puncture wound to the left side of the upper chest. 15 At about 12.30 pm on 30 July 2007, the Accused presented himself to Fairfield Police Shop Front and was conveyed to Cabramatta Police Station where he participated in an ERISP in the presence of his uncle. It is fair to observe that the ERISP, which formed part of the evidence at the present inquiry, revealed a significant level of thought disorder in the Accused shortly after the offences.

The Medical Evidence Concerning the Accused 16 The Accused was born in 1979 and was 28 years of age at the time of the tragic events of 30 July 2007. 17 The Accused has a long history of admissions to psychiatric hospitals and a history of substance abuse. 18 Dr Nielssen examined the Accused for the first time on 28 September 2007. He observed that it was not possible to obtain a complete history from the Accused "as it soon became clear that he was still affected by a communication disorder arising from his severe chronic mental illness that had either failed to respond to the treatment he had received in gaol or was resistant to treatment with antipsychotic medication". 19 Dr Nielssen observed that the Accused's answers in the ERISP revealed disorganisation in a way that was consistent with the pattern of his communication on interview. There were elements of delusional and persecutory beliefs. Dr Nielssen diagnosed the Accused as suffering from chronic treatment resistant schizophrenia and substance abuse disorder (in remission). In his report of 27 November 2007, Dr Nielssen concluded (page 7):

"Mr Grant's communication was so disorganised at the time of the recent assessment that I believe he would be unable to follow any proceedings in a meaningful way or give reliable instructions. However, he has only recently resumed treatment with antipsychotic medication after a long period without medication and he may eventually respond to treatment to the extent that he will become fit for trial. I would be happy to review Mr Grant again after a period of consistent treatment and also to review any medical records of his treatment in the community and since his arrest." 20 Dr Nielssen examined the Accused again on 7 December 2007 and provided a further report dated 22 January 2008. The Accused was receiving treatment with a relatively high dose of the antipsychotic medication, Olanzapine (Zyprexa) 30 mg per day. Dr Nielssen observed that the second interview confirmed his opinion that the Accused had a chronic schizophrenic illness which was "relatively treatment resistant in the sense that he has persisting delusional beliefs despite four months treatment with high doses of antipsychotic medication" (page 2). In his report of 22 January 2008, Dr Nielssen was of the view that the Accused was fit to be tried (pages 2-3): "As of 7.12.07 Mr Grant was assessed to be fit to enter a plea and fit for trial. He was more coherent in his communication, demonstrated a reasonable understanding of the nature of the proceedings and was assessed to be able to follow the proceedings in a general sense and give reliable instructions to his legal representatives. In particular, he recognised that he had a mental illness, even if he was unable to recognise the symptoms of his illness, and did not object to his illness being raised in his defence. He should remain fit for trial provided he continue to receive treatment with an adequate dose of antipsychotic medication in the period leading up to the trial." 21 Dr Nielssen interviewed the Accused again on 17 April 2008, leading to his report of 29 April 2008. 22 Dr Nielssen recounted that his report of 22 January 2008 had concluded that the Accused was "on balance fit for trial, as he was able to give an account of the events that could be understood and it seemed clear that he intended to plead not guilty on the grounds of mental illness". Dr Nielssen continued (page 1): "Of concern at that time was that he was still affected by a fairly severe form of communication disorder that would affect his ability to give evidence on his own behalf and that he was also continuing to experience symptoms of mental illness despite three months treatment. However, he was assessed to be 'fit enough' to give his account of what happened to psychiatrists assessing him for court and to enter a plea." 23 At interview on 17 April 2008, however, Dr Nielssen noted that it soon emerged that the Accused's "mental state had not continued to improve despite consistent treatment with higher doses of medication and that he was affected by active symptoms of a chronic mental illness". The Accused was taking the high dose of 40 mg of Olanzapine per day in combination with regular injections of long-acting antipsychotic medication. Dr Nielssen observed that the Accused had not taken the atypical antipsychotic medication, Clozapine, that is usually reserved for treatment-resistant patients, nor had the Accused discussed taking Clozapine with his treating doctor. 24 Dr Nielssen concluded (page 2): "After the most recent interview I am now of the opinion that Mr Grant is unfit to plead and is unfit for trial. His mental state has not continued to improve and if anything is worse than it was at the time of the interview in November. He expressed fixed delusional beliefs about the victim and the events surrounding the offence and appeared to be distracted by active auditory hallucinations during the interview. He initially said that he was willing to enter a plea of not guilty due to mental illness, but was unable to say how he was mentally ill and later contradicted himself by saying that he wanted to plead guilty to get a fixed term. Hence I now believe Mr Grant is unfit for trial, as his interpretation of events is likely to be affected by ongoing auditory hallucinations and fixed and evolving delusional beliefs, and he would be unable to give reliable instructions whilst affected by acute symptoms of treatment resistant schizophrenia. Mr Grant may become fit for trial within 12 months if he responds to treatment with the atypical antipsychotic medication clozapine. About thirty percent of treatment resistant patients have a significant response to clozapine treatment and Mr Grant should be referred to the psychiatric ward of Long Bay Hospital for a trial of this treatment." 25 Dr Samson Roberts examined the Accused on behalf of the Crown at the Metropolitan Reception and Remand Centre, Silverwater on 5 June 2008. Following a detailed account of the Accused's psychiatric, substance-use and medical history and family and developmental history, Dr Roberts turned to an assessment of the Accused's fitness to stand trial. Dr Roberts provided a diagnosis of schizophrenia (paranoid type), psychostimulant abuse (in sustained full remission) and cannabis abuse in a controlled environment. Dr Roberts concluded his report in the following way (pages 15-16): "Mr Grant is a 29 year old man who provides an unclear account of himself so affected by delusional content that it is not possible to determine with certainty which aspect of his account is reflective of reality. It is evident that Mr Grant has a history of psychiatric illness which has led to hospitalisations in the past. Based on his account, his treatment has been characterised by a need for involuntarily [sic] treatment both in hospital and in the community. His psychiatric condition has been compromised by non compliance with medication and illicit substance use. During his incarceration he has been under the care of psychiatric services. Despite being in receipt of supervised psychiatric treatment, Mr Grant continues to exhibit symptoms of his illness. If his account of the pharmacological treatment prescribed to him is an accurate reflection of fact, his condition is being treated aggressively. Based on the contents of Dr Nielssen's reports, it is apparent that despite a protracted period of supervised treatment, Mr Grant's symptoms have not improved over time. In considering Mr Grant's fitness to stand trial, it is apparent that he has an understanding, albeit imperfect, of those issues outlined in Presser . The nature and severity of his illness however is such that delusional material continues to intrude upon his understanding of issues relating to the offences for which he is before the Court. Additionally, his conduct is demonstrated by the self-inflicted burn aimed at removing a tattoo, indicates that his psychiatric condition continues to impact upon his day to day life. It is therefore expected that his psychiatric illness will adversely impact upon his ability to follow Court proceedings and will intrude upon instructions given to his solicitor. Although he expresses a superficial understanding of the plea of Not Guilty by reason of mental illness and has expressed a desire to enter such a plea, he stated the perception that he will receive a fixed term of incarceration indicating limited understanding of the ramifications of such a plea. In conclusion, it is my opinion that in the absence of improvement in Mr Grant's mental state, he will remain unfit to enter a plea and unfit to stand trial." 26 The Crown confirmed that documents produced on subpoena indicated that the Accused was receiving medication in dosages referred to in the medical reports. 27 Dr Roberts agreed with Dr Nielssen's recommendation concerning a trial of Clozapine treatment (page 16): "I concur with Dr Olav Nielssen's opinion with respect to the recommendation that a trial of Clozapine be instituted. Given the lengthy period that Mr Grant has remained unwell despite consistent treatment, it is expected that in the absence of a response to Clozapine, he will remain unwell for the foreseeable future and therefore is expected to be unfit to stand trial for in excess of a further twelve months."

Determination 28 The sole question to be determined is whether the Accused is presently unfit to be tried. 29 The Presser test sets out the minimum requirement for an Accused to stand trial. It is apparent that the Accused has a long history of mental illness. The reports of Dr Nielssen disclosed some improvement in the later months of 2007 before deterioration in the Accused's mental state in April 2008, despite administration of strong antipsychotic medication. Examination by Dr Roberts in June 2008 revealed significant concerns about the Accused's mental state despite ongoing treatment with antipsychotic medication. 30 Both Dr Nielssen and Dr Roberts have reached the same conclusion, by application of the Presser test, that the Accused is unfit to be tried. 31 Having regard to the evidence, I am satisfied on the balance of probabilities that the Accused is unfit to be tried. It is apparent that the Accused's ongoing auditory hallucinations and his fixed and evolving delusional beliefs intrude upon his understanding of the trial process and restrict his capacity to communicate effectively the facts necessary for his defence. 32 Having reached such a conclusion at this inquiry, the criminal proceedings against the Accused must not be continued, and I am required to refer the Accused to the Mental Health Review Tribunal: s.14(a) Mental Health (Criminal Procedure) Act 1990. It will be for that Tribunal to determine, as soon as practicable, whether, on the balance of probabilities, the Accused will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences: s.16(1) Mental Health (Criminal Procedure) Act 1990. Depending upon the Tribunal's determination, s.17 or s.19 of the Act may have application to the Accused. 33 It is appropriate to make an order under s.14(b)(iii) of the Act remanding the Accused in custody until the determination of the Tribunal under s.16 has been given effect to. 34 I was asked by the Crown and Senior Counsel for the Accused to make the recommendation advanced by Dr Nielssen, and supported by Dr Roberts, concerning a trial of Clozapine treatment for the Accused. In the circumstances of the case, I am satisfied that such a recommendation is appropriate and I will make it, although it will be a matter for the Accused's treating psychiatrist within Justice Health to determine what treatment is appropriate for the Accused. To permit a proper assessment of the recommendation of Dr Nielssen, supported by Dr Roberts, it is appropriate that the Accused's treating psychiatrist be provided with a copy of the three reports of Dr Nielssen together with the report of Dr Roberts. 35 It was for these reasons that I made the following orders and recommendation at the conclusion of the hearing on 28 July 2008:

(a) I find that the Accused, Craig James Grant, is unfit to be tried for the offences of the murder of Jasmine Bell on 30 July 2007 and the attempted murder of Andrew O'Grady on 30 July 2007.

(b) In accordance with s.14 of the Mental Health (Criminal Procedure) Act 1990 , I refer the Accused to the Mental Health Review Tribunal.

(c) Pursuant to s.14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s.16 of that Act.

(d) I recommend that the attention of the Accused's treating psychiatrist within Justice Health be drawn to the recommendation of Dr Olav Nielssen, supported by Dr Samson Roberts, that the Accused be referred to the psychiatric ward of Long Bay Hospital for a trial of Clozapine treatment.

(e) I direct that the reports of Dr Olav Nielssen concerning the Accused dated 27 November 2007, 22 January 2008 and 29 April 2008 and the report of Samson Roberts dated 16 June 2008 be placed in a sealed envelope addressed to the Treating Psychiatrist, Metropolitan Reception and Remand Centre, Silverwater and that the envelope accompany the Accused when he is returned to his former custody as a result of the orders made today. **********

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.