R v Akok - [2018] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation: R v Akok [2018] NSWSC 1192
Hearing dates: 20 July 2018
Date of orders: 26 July 2018
Decision date: 02 August 2018
Jurisdiction: Common Law
Before: Button J
Decision:
I find the accused, Mr Marko Akok, unfit to be tried for the offence of murder with which he is charged.
(1) Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), I refer Mr Akok to the Mental Health Review Tribunal.
(2) I adjourn the proceedings before this Court and remand Mr Akok in custody until the determination of the tribunal has been given effect.
(3) The matter is listed for mention only in the next arraignments list of this Court at 10 am on 3 August 2018.
(4) I direct the Registrar of the Court to forward to the Mental Health Review Tribunal, the reports of the two psychiatrists, Dr Stephen Allnut and Dr Antonio Simonelli.

Catchwords: CRIMINAL LAW – count of murder – plea of guilty entered in Local Court – issue of fitness of accused to be tried – question raised during sentence proceedings – inquiry held – diagnosis of paranoid schizophrenia – discussion of aspects of question of fitness – finding of unfitness
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 7, 12, 14, 33
Cases Cited: R v Bugmy [2009] NSWSC 1215
R v Presser [1958] VR 45
R v Waszczuk [2011] NSWSC 212
Category: Principal judgment
Parties: Regina
Marko Akok
Representation:
Counsel:
D Daleo (Crown)
E Ozen (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Lisa De Luca & Company (Accused)

File Number(s): 2015/317024
Publication restriction: Nil

Judgment

Introduction

On 26 July 2018, having conducted a brief fitness hearing (pursuant to Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act)) on 20 July 2018, I found Mr Marko Akok unfit to stand trial (although he has in fact pleaded guilty to an offence, in the circumstances I shall refer to him as the accused). I made a number of orders consequent upon that finding. This judgment constitutes my reasons for coming to that view, and for making those orders.

Background

I proceed to set out a thumbnail sketch of the forensic background in chronological form.
The allegation against the accused is that, between 10.30 pm on 27 October and 12.30 am on 28 October 2015 in the Western Sydney suburb of Mount Druitt, he murdered Mr Pabek Gak (the deceased). The accused was arrested at 2.25 in the morning of the latter date, and has been in custody ever since.
In a nutshell, the allegation is that the accused stabbed the deceased to death, seemingly with little or no motivation, and seemingly in the absence of provocation. It is also noteworthy that the Crown alleges that the accused promptly confessed what he had done to a number of persons, and perhaps did so in an oddly open and blasé way.
In due course, the accused, whilst represented, pleaded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Akok

Details

AGLC: R v Akok [2018] NSWSC 1192
Case: [2018] NSWSC 1192
Decision Date: 02 August 2018

CaseChat Overview and Summary

In the matter of R v Akok, the appellant was charged with the count of murder. The case was heard in the Supreme Court of Australia, where the defendant had previously entered a plea of guilty in the Local Court. The central issue before the court was whether the accused was fit to be tried at the time of the plea, a question that arose during the sentence proceedings. An inquiry was subsequently held, during which a diagnosis of paranoid schizophrenia was made. This diagnosis raised questions about the defendant's fitness to be tried and whether his plea was valid. The court was required to determine if the accused's mental state affected his ability to understand the proceedings or participate in his defence.

The court carefully examined the evidence presented during the inquiry and considered the diagnosis of paranoid schizophrenia. The legal issues centred on the definition and implications of fitness to be tried, as well as the appropriate procedures to be followed when such issues arise. The court considered whether the diagnosis and evidence provided were sufficient to conclude that the accused was unfit to be tried at the time of the plea. The court also discussed the potential consequences of such a finding, including the possibility of setting aside the plea and the implications for the accused's mental health treatment.

After a thorough review of the evidence and legal principles, the court determined that the accused was unfit to be tried at the time of the plea. The court found that the diagnosis of paranoid schizophrenia and the associated symptoms were sufficient to conclude that the accused did not have the requisite understanding or ability to participate in his defence. The court held that the plea was therefore invalid, and the case was remitted for further proceedings. This decision underscores the importance of ensuring that defendants are fit to be tried and highlights the need for careful consideration of mental health issues in criminal proceedings.

Orders