R v Al-Harazi (No 2) - [2016] ACTSC 273

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Al-Harazi (No 2)
Citation:	[2016] ACTSC 273
Hearing Date(s):	5 September 2016
DecisionDate:	6 September 2016
Before:	Refshauge J
Decision:	1. The trial date of 7 September 2016 be vacated. 2. The trial be adjourned to 19 September 2016. 3. The proceedings be mentioned on 15 September 2016.
Catchwords:	PROCEDURE – CRIMINAL LAW – Adjournment of trial – adjournment for psychiatric evaluation – assessment of the defendant’s mental state – defendant exhibiting potential symptoms of mental illness – potential difficulty in providing counsel instructions – potential lack of understanding of trial process – possible question of fitness to stand trial – fitness to plead – real or substantial question about fitness to plead – determination of fitness to plead
Legislation Cited: Texts Cited:	Crimes Act 1900 (ACT), ss 311, 311(1), 312(1), 312(2), 314, 315, 315A, Div 13.2 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 11 Mental Health (Forensic Provisions) Act 1990 (NSW), s 10(2) Macquarie Dictionary
Cases Cited:	Eastman v The Queen (2000) 203 CLR 1 Kesavarajah v The Queen (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 R v Dashwood [1943] KB 1 R v DM (2011) 253 FLR 349 R v Dunn [2015] 2 Qd R 407 R v Khallouf [1981] VR 360 R v Monaghan [2009] ACTSC 61 R v Presser [1958] VR 45 R v Taylor (1992) 77 CCC (3d) 551 SM v The Queen (2011) 33 VR 393 Tier (2001) 121 A Crim R 509
Parties:	The Queen (Crown) Maged Mohommed Ahmed Al-Harazi (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr K Archer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number(s):	SCC 207 of 2015

REFSHAUGE J:

On 17 March 2015, Saba Al-Mdwali died apparently from multiple stab wounds. Her husband, Maged Mohommed Al-Harazi, the accused, has been charged with her murder.

A trial is listed to commence on 7 September 2016, and the estimated time for the trial is six weeks.

In August 2016, the Court was given notice that there may be an issue as to the fitness of Mr Al-Harazi to plead to the indictment. As Gaudron J explained in Eastman v The Queen (2000) 203 CLR 1 at 21-2; [62]:

If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead or if that issue is not determined in the manner which the law requires, ‘no proper trial has taken place [and the] trial is a nullity’ [R v Begum (1985) 93 Cr App R 96 at 100, Watkins LJ]. To put the matter another way, there is a fundamental failure in the trial process.

Accordingly, the question of a person’s fitness to plead or otherwise is a most important and serious matter that cannot be ignored nor overlooked. See also R v Dashwood [1943] KB 1 at 4.

The issue

For an accused…

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.

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Details

Case: [2016] ACTSC 273
Decision Date: 6 September 2016

CaseChat Overview and Summary

The defendant in this case, Al-Harazi, was facing a criminal trial. The trial was initially set for 7 September 2016, but the defendant's legal team sought an adjournment to allow for a psychiatric evaluation. This evaluation was deemed necessary due to the defendant's exhibited symptoms that suggested potential mental illness. Concerns were raised about the defendant's ability to provide counsel instructions and understand the trial process. The court was required to decide whether there was a real or substantial question about the defendant's fitness to plead.

The legal issues before the court involved whether the concerns raised by the defence about the defendant's mental state were sufficient to warrant an adjournment for psychiatric evaluation. The court had to consider whether there was a real or substantial question about the defendant's fitness to stand trial and plead. The defence argued that the defendant's symptoms indicated a potential lack of understanding of the trial process and difficulties in following counsel instructions. The prosecution did not oppose the adjournment, acknowledging the importance of determining the defendant's fitness to plead.

The court found that there was indeed a real or substantial question about the defendant's fitness to plead, based on the evidence presented regarding the defendant's mental state. It was determined that an adjournment was necessary to conduct a psychiatric evaluation and to ensure that the defendant could properly participate in the trial. The trial was vacated and rescheduled for 19 September 2016, with a mention set for 15 September 2016 to review the results of the psychiatric evaluation. This decision was made in the interest of ensuring a fair trial and protecting the defendant's rights.

The orders issued by the court included vacating the trial date of 7 September 2016 and setting a new trial date of 19 September 2016. The court also ordered that the proceedings be mentioned on 15 September 2016 to review the psychiatric evaluation. These orders were made to facilitate the assessment of the defendant's fitness to plead and to ensure that the trial could proceed in a manner that was fair and just for all parties involved.

Orders

Orders of the court

1. The trial date of 7 September 2016 be vacated.

2. The trial be adjourned to 19 September 2016.

3. The proceedings be mentioned on 15 September 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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