R v Al-Harazi (No 3) - [2016] ACTSC 290

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Al-Harazi (No 3)
Citation:	[2016] ACTSC 290
Hearing Dates:	21 September 2016
Decision Date: Reasons Date:	21 September 2016 29 September 2016
Before:	Refshauge ACJ
Decision:	21 September 2016 1. The question about the fitness to plead of Maged Mohammed Ahmed Al-Harazi be reserved for investigation under s 315 of the Crimes Act 1900 (ACT). 2. The trial be adjourned pending the investigation. 3. The trial date of 27 September 2016 be vacated. 23 September 2016 4. Under s 315A(1)(b)(ii) of the Crimes Act 1900 (ACT), Maged Mohammed Ahmed Al-Harazi be required to be examined by Professor David Greenberg on Monday 14 November 2016 for the purposes of assessing his fitness to plead.
Catchwords:	PROCEDURE – CRIMINAL LAW – Vacation of trial – fitness to plead – psychiatric evaluation – real or substantial question about fitness to plead – question of inquiry – adjournment for further psychiatric evaluation – Div 13.2 of the Crimes Act 1900 (ACT)
Legislation Cited: Cases Cited:	Crimes Act 1900 (ACT), ss 311, 312(3), 315, 315(2)(c) Eastman v The Queen (2000) 203 CLR 1 R v Al-Harazi (No 2) [2016] ACTSC 273 R v Goodwin (2009) 233 FLR 473 Tier (2001) 121 A Crim R 509
Text Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (American Psychiatric Association, 5^th ed, 2013) William James, Varieties of Religious Experiences (Harvard University Press, 1985)
Parties:	The Queen (Crown) Maged Mohammed 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 Numbers:	SCC 207 of 2015

REFSHAUGE ACJ:

Determining whether a person is unfit to plead is a complex matter but the consequences whether the person is fit or unfit to plead are high. If a person is not fit to plead but the trial proceeds, it will be a nullity and there will have been a miscarriage of justice: Eastman v The Queen (2000) 203 CLR 1 at 21-2; [62].

In this case, the accused, Maged Mohammed Ahmed Al-Harazi, has been charged with the murder of his wife on 17 March 2015 and the trial was set to commence on 7 September 2016. Prior to that time, however, his counsel raised an issue as to the fitness of Mr Al-Harazi to plead. I heard initial argument and then adjourned the trial so that Mr Al-Harazi could be further examined by a psychiatrist, in particular a psychiatrist who was fluent in Arabic. See R v Al-Harazi (No 2) [2016] ACTSC 273.

Mr Al-Harazi was examined by Dr Abdulatif Burhan on 16 September 2016 for two and a half hours. He set out the details he obtained on his examination. I do not need to repeat them in these reasons.

He assessed Mr Al-Harazi against the criteria set out in s 311 of the Crimes Act 1900 (ACT), which are the statutory criteria for a finding that a…

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 290
Decision Date: 29 September 2016

CaseChat Overview and Summary

In the matter of R v Al-Harazi (No 3), the defendant, Maged Mohammed Ahmed Al-Harazi, faced a criminal trial that was initially scheduled for 27 September 2016. The dispute centred around the defendant's fitness to plead, with concerns raised about his ability to participate effectively in the trial proceedings. The case was heard in the ACT Supreme Court, where the presiding judge was required to determine whether there was a real or substantial question about the defendant's fitness to plead.

The legal issues before the court included whether there was sufficient evidence to warrant an adjournment for further psychiatric evaluation of the defendant, and whether the criteria under Division 13.2 of the Crimes Act 1900 (ACT) were met to warrant a reservation of the question of fitness to plead. The court had to assess whether the evidence presented by the prosecution was adequate to raise a real or substantial question about the defendant's fitness to plead, and whether it was appropriate to adjourn the trial to allow for further psychiatric evaluation.

In its reasoning, the court found that there was indeed a real or substantial question about the defendant's fitness to plead, justifying the reservation of the question under section 315 of the Crimes Act 1900 (ACT). The court ordered that the trial be adjourned and that the defendant be examined by Professor David Greenberg on 14 November 2016 for the purposes of assessing his fitness to plead. The trial date was subsequently vacated, and the court made orders under section 315A(1)(b)(ii) of the Crimes Act 1900 (ACT) to facilitate the required psychiatric evaluation.

The final orders of the court included the reservation of the question about the defendant's fitness to plead for investigation under section 315 of the Crimes Act 1900 (ACT), the adjournment of the trial pending the investigation, and the vacating of the original trial date of 27 September 2016. Additionally, the court ordered that the defendant be examined by Professor David Greenberg on 14 November 2016 to assess his fitness to plead.

Orders

Orders of the court

21 September 2016

1. The question about the fitness to plead of Maged Mohammed Ahmed Al-Harazi be reserved for investigation under s 315 of the Crimes Act 1900 (ACT).

2. The trial be adjourned pending the investigation.

3. The trial date of 27 September 2016 be vacated.

23 September 2016

4. Under s 315A(1)(b)(ii) of the Crimes Act 1900 (ACT), Maged Mohammed Ahmed Al-Harazi be required to be examined by Professor David Greenberg on Monday 14 November 2016 for the purposes of assessing his fitness to plead.

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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