R v Al-Harazi (No 5) - [2017] ACTSC 61

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Al-Harazi (No 5)

Citation:

[2017] ACTSC 61

Hearing Date:

10 February 2017

DecisionDate:

Reasons Date:

10 February 2017

31 March 2017

Before:

Refshauge J

Decision:

It is decided that Maged Mohammed Ahmed Al-Harazi is not unfit to plead.

Catchwords:

CRIMINAL LAW – JURISIDICTION, PRACTICE AND PROCEDURE – Fitness to plead – conclusions of investigation into the fitness of the accused undertaken – accused not unfit to plead – s 311 of the Crimes Act 1900 (ACT)

Legislation Cited:

Crimes Act 1900 (ACT), ss 311, 312, 312(1), 314(1), 315, 315(1), 315A, 315A(1)(b), 315A(1)(b)(ii),

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 12(2)
Juries Act 1967 (ACT), s 31
Mental Health (Forensic Provisions) Act 1990 (NSW), s 12(2)

Cases Cited:

Eastman v The Queen [2000] HCA 29; 203 CLR 1

Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
R v Al-Harazi (No 2) [2016] ACTSC 273
R v Al-Harazi (No 3) [2016] ACTSC 290
R v Bugmy [2009] NSWSC 1215
R v Monaghan [2009] ACTSC 61
R v Presser [1958] VR 45

Texts Cited:

Dan Howard SC and Bruce Westmore, Crime and Mental Health Law in New South Wales (LexisNexis, Butterworths, 2^nd ed, 2010)

Parties:

Representation:

The Queen (Crown)

Maged Mohammed Ahmed Al-Harazi (Accused)

Counsel

Mr S Drumgold & Ms E Beljic (Crown)

Mr K Archer (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 207 of 2015

REFSHAUGE J:

On 21 September 2016, I reserved for investigation under s 315 of the Crimes Act 1900 (ACT) a question about the fitness to plead of Maged Mohammed Ahmed
Al-Harazi. See R v Al-Harazi (No 3) [2016] ACTSC 290.

By the time I made my decision to reserve the question for investigation, Mr Al-Harazi had already been examined by two psychiatrists retained by his lawyers. The first was Dr Stephen Allnutt, a well-known and respected consultant forensic psychiatrist who came to the view that he was “suspicious that [Mr Al-Harazi] might have a mental illness” but was “unable to be definitive at this stage”.

He sought a further opportunity to re-assess him prior to concluding his opinion. See R v Al-Harazi (No 2) [2016] ACTSC 273 at [33]-[34].

I also noted at [36]-[37] that Dr Allnutt recommended that an Arab-speaking psychiatrist should examine Mr Al-Harazi and an Arab-speaking psychiatrist was located.

Because of that opportunity, and the uncertainty of the question about Mr Al-Harazi’s fitness to plead, I vacated the trial date and adjourned the matter. Subsequently, I received the report from the Arab-speaking psychiatrist, Dr Abdulatif Burhan, the second psychiatrist, and it was on the basis of his comments, where he expressed doubts about Mr Al-Harazi’s ability to follow the course of the proceedings and found that he lacked the capacity to understand the substantial effect of any evidence in support of the prosecution against him, that I vacated…

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: [2017] ACTSC 61
Decision Date: 31 March 2017

CaseChat Overview and Summary

The case of R v Al-Harazi (No 5) involves the determination of the fitness of Maged Mohammed Ahmed Al-Harazi to stand trial. The dispute arose in the context of criminal proceedings in the ACT Magistrates Court, where questions about the defendant's capacity to comprehend the proceedings and participate in his own defence were raised. The matter was referred to the court for a determination under section 311 of the Crimes Act 1900 (ACT).

The primary legal issue for the court to decide was whether Al-Harazi was fit to plead. This involved assessing whether he had a sufficient understanding of the proceedings against him, could instruct counsel, and could comprehend the possible consequences of a conviction. The court considered expert psychiatric evidence and the observations of the legal representatives about Al-Harazi's ability to engage in the trial process.

In its reasoning, the court thoroughly examined the evidence provided by the experts, which concluded that while Al-Harazi suffered from a mental disorder, this did not impede his capacity to understand the nature of the proceedings or to participate in his defence. The court accepted the findings that, despite his psychiatric condition, Al-Harazi was capable of following the trial, making decisions about his defence, and communicating with his legal representatives. Therefore, the court ruled that Al-Harazi was fit to plead, leading to the decision that the proceedings could continue as normal.

The final order of the court was that Maged Mohammed Ahmed Al-Harazi is deemed fit to plead, and the criminal proceedings against him will continue. This decision allows the trial to proceed without further delay concerning the issue of his fitness to stand trial.

Orders

Orders of the court

It is decided that Maged Mohammed Ahmed Al-Harazi is not unfit 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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