Director of Public Prosecutions v Natale

[2017] VSC 26

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0170

DIRECTOR OF PUBLIC PROSECUTIONS

v  

ROCCO NATALE

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 FEBRUARY 2017
DATE OF RULING:	2 FEBRUARY 2017
CASE MAY BE CITED AS:	DPP v NATALE
MEDIUM NEUTRAL CITATION:	[2017] VSC 26

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CRIMINAL LAW – fitness to stand trial – psychiatric examination of accused – adjournment of trial  –  orders for future medical examination  –  Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 9(2), 10(1)(d)(i) and (ii) and 11 and pts 2 and 3.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr T Gyorffy QC	Office of Public Prosecutions
For the defence	Mr R Edney & Mr J Hofman	Emma Turnbull Lawyers

HIS HONOUR:

1. The prosecution and the defence have applied for the adjournment of this trial.

1. The accused was arrested on 31 July 2014 and has been in custody on remand since that date.  Therefore he has been in custody awaiting trial in this court for nearly two and a half years, which is a long time.   

1. The charges brought against the accused by indictment are:

·incitement to murder

·extortion

·threatening to kill.

In short, the prosecution alleges that the accused incited, made demands of and threatened to kill a person (and his family) in relation to a plan by the accused that the person kill the family of the wife of the accused.  The person brought these matters to the attention of the police, which led to the arrest of the accused.

1. The court has attempted to commence the trial of the charges brought against the accused on several occasions.  Those attempts have been frustrated by a number of circumstances, including doubts about the fitness of the accused to stand trial.  Psychiatric reports have been provided on that subject, with mainly positive but never with very convincing opinions either way.

1. In the trial of the charges, I conducted directions hearings in November 2016 and commenced the actual trial on the 28^th of that month. After three days of hearing, under s 9(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’) it appeared to me that a real and substantial question arose about the fitness of the accused to stand trial. This was based upon a number of considerations, including:

·the frequent changes of legal representation that the accused had brought about

·the in-court behaviour of the accused, including his behaviour when giving evidence during an evidentiary hearing

·the unconvincing nature of the psychiatric opinions previously expressed

·the reservations expressed by counsel for the prosecution and the defence in relation to the fitness of the accused to stand trial

·oral and written statements made by the accused, which contained irrational content

1. In consequence, on 6 December 2016 I made the following order:

The accused is to undergo an examination by [a registered medical practitioner] pursuant to s 10(1)(d)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and pursuant to s 10(1)(d)(ii) the results of that examination are to be put before the court.

I adjourned the trial until 2 February 2017 pending the production of the report on the condition of the accused.

1. In response to this order and taking into account certain material which I provided (with the agreement of the prosecution and the defence), a psychiatrist at Forensicare supplied the court with a report on 1 February 2017.  The opinion of the psychiatrist was that the accused was unfit to be tried but that he might be so within 12 months.  The psychiatrist noted that difficulties had been encountered when interviewing the accused and, further, that he needed psychiatric treatment at the Metropolitan Remand Centre, where he is being detained, and which he had not previously been receiving. 

1. The hearing resumed on 2 February 2017. The accused reacted badly to the seeing the report and dismissed his counsel (whom I gave leave to withdraw) but not his solicitor, who continues to act. New defence counsel is to be engaged. It was not possible to commence an investigation into the fitness of the accused to stand trial under s 11 of the Act. With the consent of the prosecution and the defence (through the solicitor for the accused), I adjourned the trial to a date to be fixed and fixed 1 May 2017 as a date upon which a directions hearing would be held. I extended the remand of the accused accordingly. No application for bail was made. Previous applications have been refused.

1. In relation to the charges brought against the accused, the question is whether the prosecution proves beyond reasonable doubt that the accused committed the offences, as to which the accused had pleaded not guilty.   The following remarks are made without derogating from that fundamental proposition.

1. In relation to the psychiatric condition of the accused, there are several important questions in this proceeding, most particularly:

·whether the accused is fit to stand trial (if the accused remains unfit stand trial on 1 May 2017, it may be necessary to give directions for the determination of this question pursuant to an investigation under s 11 of the Act)

·if the accused is found not fit to stand trial in such an investigation, whether he is not guilty of the alleged offences because, at the time of allegedly committing them, he was mentally impaired (if this question arises, it will have be determined pursuant to a special hearing under pt 3 of the Act)

·if the accused is fit to stand trial on 1 May 2017, whether he is not guilty of the offences charged because, at the time of allegedly committing them, he was mentally impaired (if this question arises, it will have to be determined at a normal trial but pursuant to pt 4 of the Act).

These are different questions and medical opinion is critical to the resolution of each of them.

1. Without being definitive, it appears to me that the accused has been suffering from a mental illness of some kind while he has been in detention on remand for which he has not been receiving treatment.  It may be that, with proper treatment whilst on continued remand, the accused will recover his health and start to behave normally such that he will be capable of effective participation in the trial process.  He may or may not have been suffering from a mental illness at the time that the alleged offences were committed.  It may or may not be the case that the illness developed as a consequence of his extended incarceration, having regard to his age (he is 76 years old) and poor language skills (he speaks good Italian and poor English). 

1. It is therefore important in the first instance that proper medical treatment be administered to the accused.  I note that the psychiatrist from Forensicare intends to ensure that this occurs and I will so direct.

1. It is also important that, once the medical condition of the accused is known and treated, attention is given to whether he is fit or unfit to stand trial and (whatever be the answer to that question) whether he has a defence of mental impairment with respect to the alleged offences.  He may have other defences, as to which I make no comment here.

1. The accused speaks very poor English and needs the assistance of a qualified Italian interpreter (preferably 3 level).  He appears to relate best to male interpreters.  Many difficulties have been encountered previously when medical practitioners have interviewed the accused via video link rather than personally and then expressed medical opinions about the state of his mental health.  It is imperative that, at least in the initial stages, psychiatric examination of the accused be personal. 

1. Accordingly, on 2 February 2017 I issued the following order:

(1)The trial is adjourned until a date to be fixed before the Honourable Justice Bell.

(2)       There will be a directions hearing on 1 May 2017 at 9.30 am.

(3)       The accused is remanded in custody until that date to this court.

(4)Forensicare is to ensure that the accused is provided with all necessary health care in relation to his psychiatric and any other related medical conditions.

(5)By 4.00pm on 20 April 2017, Forensicare is to provide the court with a psychiatric report or reports in relation to:

(a)the psychiatric condition of the accused, particularly the diagnosis and prognosis, and present and proposed treatment;

(b)whether the accused is fit to stand trial, and, if not, whether he might be fit in the foreseeable future;  and

(c)whether or not the accused is fit or unfit to stand trial, whether he was suffering from a mental impairment at the time that the alleged offences were committed.

(6)Both parties have liberty to apply to the court on reasonable notice to the other and the court.

When the report is provided, it will be distributed to the prosecution and the defence so that consideration can be given to what course should be adopted at the directions hearing on 1 May 2017.