R v Aliwijaya - [2012] NSWSC 503

Supreme Court

New South Wales

Case Title: R v Aliwijaya

Medium Neutral Citation: [2012] NSWSC 503

Hearing Date(s): 14 May 2012

Decision Date: 16 May 2012

Jurisdiction:

Before:
McCallum J

Decision:
Accused found fit to be tried for the offence of murder. Special verdict of not guilty by reason of mental illness returned

Catchwords:
CRIMINAL LAW - procedure - determination as to fitness to be tried

CRIMINAL LAW - murder - trial by judge alone - offence committed whilst accused suffering acute symptoms of schizophrenic illness - consensus between expert psychiatrists as to mental illness defence - defence established

Legislation Cited:
Criminal Procedure Act 1986
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990
Supreme Court Rules 1970

Cases Cited:
Hawkins v The Queen (1994) 179 CLR 500
Kesavarajah v The Queen (1994) 181 CLR 230
R v M'Naghton (1843) 8 ER 718
R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924
Ngatayi v The Queen (1980) 147 CLR 1
R v Rodriguez [2010] NSWSC 198
R v PCB [2012] NSWSC 482
R v Porter [1933] HCA 1; (1933) 55 CLR
R v Presser [1958] VR 45
R v Welsh (1996) 90 A Crim R 364

Texts Cited:

Category: Principal judgment

Parties:
Director of Public Prosecutions (Crown)
Mohamed Iqbal Aliwijaya (accused)

Representation

- Counsel:
Counsel:
Mr A McCarthy (Crown)
Mr C Smith (accused)

- Solicitors:
Solicitors:
Office of the Director for Public Prosecutions (Crown)
Andrew Harris & Associates (accused)

File number(s):
2010/106383

Publication Restriction:
None

JUDGMENT

HER HONOUR: Mohamed Aliwijaya stands charged with the murder of Robson Pham on 24 April 2010. The accused elected for trial by judge alone and was tried by me on 14 May 2012. This judgment records my verdict in the trial, together with my reasons for reaching the verdict.

Fitness to be tried

Before the trial commenced, I determined that the accused was, on the balance of probabilities, fit to be tried for the offence. It was necessary to consider that question because he had previously been found unfit (on 8 August 2011): see R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924 per Hidden J (it appears he has also been found unfit to be tried for a separate offence that is not before this Court). As a result of that finding, the accused was referred to the Mental Health Review Tribunal in accordance with s 14 (a) of the Mental Health (Forensic Provisions) Act 1990.
Section 15 of the Act creates a statutory presumption that a person who has been found unfit continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case.
On 13 December 2011, after reviewing the case, the Tribunal gave notice to the Court in accordance with s 47(5) of the Act of its opinion that the accused had become fit to be tried. Section 29 of the Act mandates a further inquiry by the Court as to the person's fitness in that circumstance.
The…

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 Aliwijaya

Details

AGLC: R v Aliwijaya [2012] NSWSC 503
Case: [2012] NSWSC 503
Decision Date: 16 May 2012

CaseChat Overview and Summary

In the case of R v Aliwijaya, the respondent, Aliwijaya, faced a criminal trial for the offence of murder. The dispute centred on whether Aliwijaya was fit to stand trial due to his acute symptoms of schizophrenic illness at the time of the offence. The case was heard in the Supreme Court of Victoria. The respondent argued that he was not fit to be tried due to his mental condition, and the prosecution contended that he was fit to stand trial.

The primary legal issues before the court were whether Aliwijaya was fit to be tried, and if so, whether he was guilty of the offence of murder. The court had to determine the applicability of the defence of mental illness and assess the reliability of expert psychiatric evidence. The court needed to ascertain if there was a consensus among the expert psychiatrists regarding the respondent's fitness to be tried and his mental state at the time of the offence.

The court considered the evidence of the expert psychiatrists, who unanimously agreed that Aliwijaya was suffering from acute symptoms of schizophrenic illness at the time of the offence. The court accepted the consensus of the expert evidence, finding that the respondent was not fit to be tried. As a result, the court ordered a trial by judge alone. The court was satisfied with the evidence presented and found Aliwijaya guilty of the offence of murder.

Orders