R v Ahmic

[2022] NSWDC 372

District Court

New South Wales

Medium Neutral Citation:

R v Ahmic [2022] NSWDC 372

Hearing dates:

18 August 2022

Date of orders:

25 August 2022

Decision date:

25 August 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 The accused is fit to stand trial.

Catchwords:

MENTAL HEALTH — Criminal proceedings — Person fit to be tried

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318

Eastman v The Queen (2000) 203 CLR 1

R v Dashwood [1943] 1 KB 1

R v Rivkin (2004) 59 NSWLR 284

Category:

Sentence

Parties:

Regina (Crown)
Ekrem Ahmic (Offender)

Representation:

Counsel:
T O’Rourke (Offender)

Solicitors:
Office of Director of Public Prosecutions (Crown)

File Number(s):

2018/373223

Publication restriction:

None

Judgment

Introduction

1. This is an inquiry into the accused’s fitness to stand trial.

2. At the date of the hearing of the inquiry, two eminently and highly respected forensic psychiatrists agreed that the accused was fit to stand trial, on the basis that some modifications could be made to the trial process to facilitate the accused’s understanding and effective participation in the trial.

3. For the reasons that follow, I am satisfied that the opinion of the psychiatrists should be accepted and that the accused is fit to stand trial.

The Charges

4. The indictment presented, charges the accused with participating in a criminal group and dealing with money that he knew was the proceeds of crime, based on his alleged involvement in a fraudulent scheme to issue certificates to students which they could use to apply for a trade licence.

5. The Crown case is that the accused was the director of a company ESTB Management Pty Ltd (ETSB) that operated a business that trained and assessed students on their competency in carpentry, small business management and building and construction. ETSB was contracted to provide training and assessment services to Daily Update Pty Ltd trading as Green Skills Australia (GSA). GSA was a registered training organisation (RTO) entitled to deliver vocational education and training (VET). GSA was authorised by its registration with the Australian Skills Quality Association (ASQA) to issue certificates on completion of a VET course that allowed a student to apply for a trade licence. Cameron Russell was the director of GSA and Fay Russell, his spouse, was the secretary.

6. Once a student had been trained and assessed by the accused on behalf of ETSB, he would send documents to GSA for verification and issue of the appropriate certificate. The certificate was issued in the name of GSA, had a unique identifying number and bore the electronic signature of Mr Russell.

7. On 25 June 2015 GSA’s authorisation to issue certificates was revoked by ASQA after it failed a compliance audit. ASQA directed that GSA provide it with a list of names of students it had trained and assessed between 2011 and 2015. Mr Russell complied with this direction and sent a list to ASQA. The list contained the names of genuine students who were trained and certified before 25 June 2015. The names of students who were provided with fraudulent certificates (because they were not trained and/or assessed) were not included on the list.

8. GSA continued to issue certificates after 25 June 2015. It is alleged that the certificates were backdated so that they would be accepted by licencing authorities. It is alleged that Mr and Mrs Russell and the accused acted in a joint criminal enterprise to issue certificates in the period 25 June 2015 to November 2018.

9. The Crown case relies on telephone intercept material, evidence from an undercover operative (UCO) who was issued with three fraudulent certificates in November 2018 in return for payment of $25,000 and evidence recovered on the execution of a search warrant identifying the issue of 592 fraudulent certificates by GSA to 242 people enrolled by ETSB.

Procedural History

10. The accused was committed for trial to the District Court on 5 September 2019. His trial was fixed for 1 June 2020, with an estimate of four weeks. The first trial date was vacated due to the impact of the COVID-19 pandemic and relisted for 4 November 2020.

11. On 29 October 2020, the second trial was vacated on the application of the accused because he needed to care for his mother and was relisted for 31 May 2021, with the same estimate.

12. On 27 May 2021, the accused’s legal representatives raised his fitness to stand trial. The third trial date was vacated. The Crown’s estimate for the trial was at that time increased to six weeks.

13. The accused was referred for assessment by Dr Olav Nielssen, psychiatrist. Dr Nielssen prepared a report dated 20 July 2021. He opined that by reference to the matters set out in s 36 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) the accused was unfit to stand trial at the time of the report, but that he may become fit at a later time.

14. On 25 November 2021, the accused consulted Dr Adam Martin, psychiatrist, at the request of the Crown. In Dr Martin’s report dated 6 December 2021, he opined that by reference to the matters set out in s 36 of the Act, that the accused was fit to stand trial, but that his mental condition may present some problems for the Court.

15. On 18 July 2022 the accused consulted Dr Nielssen for the purpose of preparing an updated report. In his report dated 19 July 2022, Dr Nielssen opined that the accused was fit to stand trial if allowances could be made to provide for his mental condition.

16. On 28 July 2022 the accused consulted Dr Martin for the purpose of preparing an updated report. In his report dated 4 August 2022, Dr Martin maintained his earlier opinion and agreed with Dr Nielssen’s assessment and opinion in his later report.

The Relevant Law

17. The common law guarantees to an accused person the right to a fair trial, one aspect of which is that a trial cannot proceed unless the accused person is fit to plead: Eastman v The Queen (2000) 203 CLR 1 at [64].

18. It is a cardinal principle of the common law that no person can be tried for a crime unless they are in a mental condition to defend themselves: R v Dashwood [1943] 1 KB 1 at 4.

19. Where there is an unresolved question of fitness to be tried, or the question of fitness is not determined properly in accordance with law, there is a fundamental failure in the trial process: Eastman at [62] and Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [115]-[118] per Heydon J.

20. Unfitness can arise by reason of the accused’s mental health or by reason of some physical or intellectual disability, or a combination of both: R v Rivkin (2004) 59 NSWLR 284 at [284]. The condition may be entirely physical, for example, coronary artery disease. There does not need to be any underlying illness or formal diagnosis as long as there is an impaired or disordered mental process: R v Sexton (2000) 77 SASR 405 at [46] and [54].

The test

21. Section 36 of the Act provides:

(1)   For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following--

(a)   understand the offence the subject of the proceedings,

(b)   plead to the charge,

(c)   exercise the right to challenge jurors,

(d)   understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

(e)   follow the course of the proceedings so as to understand what is going on in a general sense,

(f)   understand the substantial effect of any evidence given against the person,

(g)   make a defence or answer to the charge,

(h)   instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary,

(i)   decide what defence the person will rely on and make that decision known to the person's legal representative and the court.

(2)   This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.

Procedure

22. Section 38 of the Act provides:

The question of a defendant's unfitness to be tried for an offence is to be determined on the balance of probabilities.

23. Section 44 of the Act provides:

(1)   The question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone.

(2)   At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows.

(3)   An inquiry is not to be conducted in an adversarial manner.

(4)   The onus of proof of the question of a defendant's unfitness to be tried for an offence does not rest on any particular party to the proceedings.

(5)   In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following--

(a)   whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial,

(b)   the likely length and complexity of the trial,

(c)   whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.

Note : The test for determining whether or not a person is unfit to be tried for an offence is set out in section 36.

(6)   A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.

24. Section 46 of the Act provides:

If a defendant is found fit to be tried following an inquiry, the proceedings brought against the person in respect of the offence are to recommence or to continue in accordance with the appropriate criminal procedures.

Consideration

Dr Nielssen’s first report

25. In his first report of 20 July 2021, Dr Nielssen opined that the accused suffered from a depressive illness, alcohol use disorder (in remission) and possible alcohol related brain damage. The accused provided digressive and irrelevant answers to every question, only stopping his responses when interrupted. He described himself as depressed and seemed to have persecutory beliefs about the fairness of the proceedings and the trustworthiness of this legal representatives.

26. Dr Nielssen assessed his ability to concentrate and register and retrieve information to be “quite impaired”. Dr Nielssen did not believe that he was deliberately exaggerating his inability to provide sensible answers to the questions that he was asked.

27. Dr Nielssen opined that the accused was unfit to stand trial in his first report on the following bases. First, Dr Nielssen could not elicit a clear response that he understood the charges he was facing. Second, that he had a condition that affected his ability to concentrate and retain information, meaning that he would require more frequent updates from his legal representatives as to what was going on. Third, it was difficult to assess if he would understand the substantial effect of any evidence given against him because he did not stop talking. Fourth, while he could give his account, Dr Nielssen could not assess if it was rational.

28. Dr Nielssen opined that it was likely that the accused’s condition would fluctuate during a trial and probably deteriorate over a long and complex trial. On the basis of his presentation, Dr Nielssen opined that the accused would be at a significant disadvantage if he was required to give evidence.

29. Dr Nielssen opined that the accused’s condition was treatable and was likely to get better over time and lead to the position that he would be fit to stand trial.

Dr Martin’s first report

30. In his first report of 6 December 2021, Dr Martin opined that based on his history and the independent material available that the accused presented with anxiety and depression and as being vulnerable to stress that has caused problems with his concentration. Dr Martin opined that the accused’s condition was more likely an adjustment disorder rather than a major depressive disorder, accepting that it was possible that he had some alcohol induced brain damage as suggested by Dr Nielssen. Dr Martin noted that he was living independently and caring for his mother and could concentrate on the interview with him.

31. Dr Martin did not find any impairment of the accused’s ability to undertake the matters set out in s 36 of the Act.

32. Dr Martin opined that the accused was fit to stand trial but was likely to be prone to anxiety and feeling stressed by reference to his predicament and that this could pose problems for the Court.

Dr Nielssen’s second report

33. In his second report of 19 July 2022, Dr Nielssen stated that he found the accused’s attention and concentration better in the second interview. He displayed a good grasp of the details of his mother’s medical care and his own. Dr Nielssen opined that the accused also suffered from an anxiety disorder on the basis of a history of panic attacks.

34. By reference to the factors in s 36 of the Act, Dr Nielssen opined that the offender was fit to stand trial. In the course of the second interview, he demonstrated knowledge of the number of charges and the nature of them, an understanding of the general nature of the proceedings and would be able to understand the substantive effect of the evidence and provide instructions on the charges and give evidence. Dr Nielssen opined that the accused would need regular breaks in the trial to assist his ability to concentrate and retain information. He further opined that the accused would be a difficult client because of his impaired emotional regulation and style of communication, meaning that his legal representatives would require extra time during the trial to take instructions and to ensure that he understood what was going on.

35. Dr Nielssen gave evidence at the inquiry hearing that the accused was likely to suffer anxiety symptoms during the trial that would make it difficult for him to focus and think clearly. He proposed that the accused would need breaks at these times to compose himself and to calm down. Dr Nielssen also thought that his legal representatives may need more time than usual to take instructions from him, because there was likely to be a need to clarify his instructions with him to ensure that they were what he wanted. In his evidence, Dr Nielssen confirmed his overall opinion that the accused’s presentation was better in July 2022 than it had been a year earlier.

Dr Martin’s second report

36. In his second report of 4 August 2022, Dr Martin opined that the accused was probably distressed, unhappy and/or anxious and that could impair his concentration and memory, but it was not causing any major disability because he had significant functional capacity to care for his mother and himself.

37. Dr Martin opined that he was probably suffering from a persistent depressive disorder with anxious distress.

38. Dr Martin stated that he had not changed his opinion from his first report as to the accused’s fitness to stand trial and that he agreed with Dr Nielssen’s latest assessment in this regard.

39. Dr Martin stated that while Mr Ahmic was quite a challenging and digressive historian, he understood the matters and could participate in the activities referred to in s 36 of the Act.

Assessment

40. From the histories given to the psychiatrists, the answers given by the accused to them and their opinions, I am satisfied for the following matters referred to in s 36 of the Act.

41. The accused understands the offences the subject of the proceedings. I note that the charges present a different approach to what is in essence an allegation of fraud over an extended period. However, that approach is available to the prosecution and in the circumstances appropriate. It is clear on the evidence that the accused understands that he is being prosecuted for his role in the issue of the fraudulent certificates.

42. The accused is adamant that he wants to plead not guilty and there is no reason to doubt that he does not understand that he has an alternative course open to him.

43. On what he has told the psychiatrists it appears that the accused understands his right to challenge jurors and how that can be exercised and the general nature of the proceedings.

44. I accept Dr Nielssen’s opinion that the accused will be able to follow the course of the proceedings and understand the substantial effect of the evidence against him, but this will be assisted by providing him with extra time to alleviate the impact of any anxiety symptoms that he may experience in the course of the trial. He may need to take breaks to alleviate his anxiety symptoms and to avoid their impact on his ability to concentrate.

45. The accused is capable of making a defence to the charge, to provide instructions to his legal representative to mount a defence on his version of the facts and to decide what defence to rely on. I accept Dr Nielssen’s evidence that he is likely to be a difficult client and that he may need additional time to give instructions and to be provided with advice.

46. I note that the trial may take between six and eight weeks. I accept Dr Nielssen’s opinion that the accused’s ability to participate may deteriorate over the course of a long and complex trial. His fitness will need to be monitored throughout the course of the trial and appropriate accommodation made for him. The trial judge will be in the best position to determine the need for such measures and what they should be.

47. It is not necessary to resolve the dispute as to diagnosis. The psychiatrists agree on the level of impairment that the accused is experiencing from his symptoms and that his impairment has not rendered him unfit to stand trial.

48. I note that the accused is not represented at present. He was ably represented by Ms O’Rourke on a pro bono basis for the inquiry. I note that the accused is ineligible for Legal Aid because he has assets.

Orders

49. For all of these reasons, I find that the accused is fit to stand trial.

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Decision last updated: 25 August 2022