R v Azar
[2016] NSWSC 480
•18 April 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Azar [2016] NSWSC 480 Hearing dates: 18 April 2016 Date of orders: 18 April 2016 Decision date: 18 April 2016 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: 1. That the accused Daniel Azar is fit to be tried for the offence of murdering Basem Salemah.
2. That the matter be listed before the Arraignments Judge on 3 June 2016.
3. Bail not being applied for is refused in the meantime.Catchwords: Mental Health Fitness Enquiry Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Category: Principal judgment Parties: Director of Public Prosecutions (Crown)
Daniel Azar (Accused)Representation: Counsel:
Solicitors:
Mr TW Thorpe (Crown)
Mr GP Craddock SC (Accused)
Solicitor for Public Prosecutions (Crown)
Peter Murphy Criminal Solicitors (Accused)
File Number(s): 2013/00252292
REASONS FOR Judgment
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MATHEWS AJ: On 18 April 2016 a brief hearing took place as to the accused’s fitness to stand trial for the murder of Basem Salemah on 14 October 2013. At the close of the hearing I made the following orders:
1. That the accused Daniel Azar is fit to be tried for the offence of murdering Basem Salemah.
2. That the matter be listed before the Arraignments Judge on 3 June 2016.
3. Bail not being applied for is refused in the meantime.
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I said that I would deliver my reasons later.
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These, then, are my reasons for making those orders.
Background
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In the early hours of the morning of 14 August 2013 Basem Salemah was killed in his unit at Granville by three men. A considerable amount of violence was involved. On 16 August 2013 the accused was interviewed by police in relation to this matter. He denied any involvement in the killing and was thereupon released. Three days later, on 19 August 2013, he was again interviewed by police. On this occasion he admitted being involved in the killing of Mr Salemah. Towards the end of the interview he became abusive and difficult. He was thereupon arrested and charged with the murder of Mr Salemah. Bail was refused.
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During the following months the accused displayed erratic behaviour in prison, including reporting visual hallucinations. Accordingly, on 22 January 2014 he was seen in prison by Dr Matthew Hearps, psychiatrist. The accused reported that he was having hallucinations centred on the deceased. The doctor considered that he was suffering from a schizophreniform disorder and started him on medication. When the doctor saw him a week later, on 29 January, he considered that there had been a slight improvement.
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Another psychiatrist who saw the accused in February 2014 thought he might have a brief reactive psychosis rather than schizophreniform disorder. This possibility was later confirmed, and by October 2014 it was considered that the brief reactive psychosis had resolved, even though the accused remained illogical and tangential in expression and continued to make occasional reports of hearing voices.
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During the time that followed, the murder charge was continuing through the court system. In July 2015 the accused withdrew instructions from his then legal representatives, and Mr Peter Murphy, solicitor, was instructed to appear for him. Thereafter Mr Murphy saw the accused on a number of occasions. He found the accused difficult to engage in meaningful conversation about the charge against him. The accused frequently became aggressive and sometimes made comments about hearing voices.
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At Mr Murphy’s request, Dr Stephen Allnutt, the forensic psychiatrist, interviewed the accused on 22 June and again on 23 September 2015. At first the doctor found the accused’s presentation unremarkable. However the accused became progressively irrational through the course of the second interview. He became abusive and aggressive, particularly in relation to lawyers and the courts. Dr Allnutt considered that the accused was probably suffering from a chronic psychotic disorder and possibly a schizoaffective disorder. The doctor asked the accused a number of questions for the purpose of gauging his capacity to meet the criteria set out in R v Presser [1958] VR 45 (“the Presser criteria”). In the result, the doctor considered that the accused had the capacity to meet some but not all of those criteria. He therefore concluded that he was unfit to be tried.
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Dr Jonathon Adams, forensic psychiatrist, saw the accused on 29 September and 7 October 2015. In his report dated 8 October 2015 he described the accused as becoming increasingly disengaged during the course of the interviews. He concluded that the accused manifested symptoms of psychosis which were most likely indicative of a schizophrenic illness or a schizoaffective disorder. He considered that the accused did not satisfy the Presser criteria to a minimum standard.
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At this stage it is appropriate to say a little more about the Presser criteria.
Presser Criteria
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It is now firmly established that if an issue arises as to an accused person’s fitness to stand trial, it is to be adjudicated upon the basis of the person’s capacity to meet the Presser criteria. The following is an encapsulation of the seven criteria specified in that case.
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In order to be fit to stand trial an accused person needs to be able to:
Understand the nature of the charge
Plead to the charge and exercise his right of challenge
Understand generally the nature of the proceedings
Follow the course of the proceedings, and understand the effect of the evidence given against him
Make his defence or answer to the charge
Instruct his counsel as to his version of events
Decide what defence he will rely upon.
First Fitness Hearing
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On 9 October 2015 a hearing was convened before Wilson J of this Court in order to determine the question of the accused’s fitness to be tried for the present offence. Having reviewed the history of the matter and considered the psychiatric reports, her Honour determined that, pursuant to s. 14 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) the accused was unfit to be tried for the offence of murder. As required by the Act, the matter was referred to the Mental Health Review Tribunal (“the Tribunal”).
Subsequent Events
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On 3 November 2015 the accused was admitted to the Long Bay Hospital and received psychiatric treatment from Dr Hearps and Dr Ma.
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On 10 December 2015 the Tribunal found that the accused was unfit to be tried and likely to become fit within 12 months of the Court’s finding.
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On 24 March 2016 the matter was again reviewed by the Tribunal pursuant to s. 46(1) of the Act. The Tribunal considered the reports of Dr Hearps and Dr Shweta Sharma, psychiatry registrar. Both expressed the view that the accused had made good progress whilst on anti-psychotic medication. They considered that the accused now met all Presser criteria and was therefore fit to be tried. Accordingly, the Tribunal determined that the accused had become fit to be tried for the offence for which he was charged. Pursuant to s. 47 of the Act the Tribunal notified the Court and the Director of Public Prosecutions as to its findings.
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On 8 April 2016 the matter was listed in the arraignments list before Johnson J of this Court. His Honour ordered that a fitness enquiry should take place. Accordingly the matter was listed before me on 18 April 2016 for that purpose.
The Fitness Hearing
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The hearing was very brief, as both parties were in agreement as to the ultimate outcome. The Crown tendered, by consent, various documents relating to the history of the matter, including the determinations of the Tribunal and the medical reports which were before it. These included a report dated 14 March 2016 of Dr Sharma, psychiatry registrar.
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In her report, Dr Sharma reviewed the history of the matter, including the medication taken by the accused. She noted that during the fitness assessments in February and March 2016 the accused had been much more relaxed and forthcoming and had not shown any overt psychotic symptoms. He was aware of the charge against him and the pleas available to him. Having regard to the Presser criteria, the treating team (Dr Sharma and Dr Hearps) were of the opinion that, on the balance of probabilities, the accused had sufficient capacity to be able to make his defence and his version of facts available to the Court, and that he was currently fit to be tried.
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The only document presented by Mr Craddock S.C., for the accused, was an affidavit dated 15 April 2016 of Peter Murphy, the solicitor for the accused. In it Mr Murphy referred to his previous affidavit dated 1 October 2015. He said that since that time he had noticed a significant improvement in the accused’s demeanour and in his capacity to engage with Mr Murphy. He said that the accused is now able to communicate effectively without displaying paranoia or becoming agitated, and is able to provide responsive and cohesive answers to questions put to him. He now understands the charge that he faces and the functions and role of a jury. He is now capable of giving of coherent account of the evidence and of giving adequate and cohesive instructions to his legal representatives as to the allegations against him.
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On the basis of this material both parties were in agreement that the accused is now fit to be tried for the current offence. Accordingly, I made the orders set out in paragraph 1 of these reasons.
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Decision last updated: 20 April 2016
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