R v Benbrika & Ors (Ruling no 22)

[2008] VSC 446

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544  of 2006

THE QUEEN

v

ABDUL NACER BENBRIKA, AIMEN JOUD, SHANE KENT, FADL SAYADI, HANY TAHA, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, EZZIT RAAD,   MAJED RAAD, and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2008
DATE OF RULING:	28 April 2008
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 22)
MEDIUM NEUTRAL CITATION:	[2008] VSC 446

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CRIMINAL LAW -Trial - accused suffering from anxiety - fitness to stand trial - ss 6 and 9 Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC with Mr N Robinson SC, Mr D Lane and Ms L Taylor	Commonwealth DPP
For the Accused Benbrika	Mr R Van de Wiel QC with Mr A Halphen	Doogue & O’Brien
For the Accused Joud	Mr T E Wraight	Lethbridges
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Bassam Raad	Mr B Lindner	Revill & Papa Lawyers
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid
For the Accused Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Majed Raad	Mr G P Mullaly	Slades & Parsons
For the Accused Haddara	Mr A Trood	Robert Stary & Associates

HIS HONOUR:

1. On Wednesday last, 23 April, one of the accused in this case, Ahmed Raad, was not brought to court by Corrections Victoria because he was apparently suffering from some type of psychiatric or psychological problem which rendered him unwell. 

1. The court heard evidence from a psychiatric registrar employed by Forensicare, the forensic psychiatry provider for the prison system in this State, Dr Steven Talents, who had seen Mr Raad the previous evening.  The substance of  Dr Talents' evidence was that Mr Raad was not fit to attend court on 23 April and that he would not be fit to attend the next day.  Dr Talents described Mr Raad as suffering from anxiety.  He said he was agitated, somnolent, and complaining of back pain radiating to his legs.  He said he had urinary symptoms. 

1. Dr Talents described Mr Raad's medications, which included an antidepressant and an antipsychotic drug, although he said he had ceased the antipsychotic and withheld the antidepressant because of their sedative effects which could have been contributing to Mr Raad's somnolence.

1. Having regard to the Anzac Day holiday due last Friday, the trial was adjourned until today. 

1. Although no question of Mr Raad's unfitness to be tried was raised by Dr Talents, he was asked to consider that issue or have it considered by any other psychiatrist who had the care of Mr Raad over the weekend so as to be able to assist the court today with an up to date assessment of Mr Raad's condition.  His attention was specifically directed to the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic).

1. Today Mr Raad attended court and Dr Alexandra Welborn, a consultant psychiatrist also employed by Forensicare, gave evidence of having examined him on Thursday, 24 April, and again this morning.  She said that on Thursday he had prominent symptoms of anxiety, shakiness, light headedness and tingling in the fingers.  She thought his main problem was this anxiety.  She gave him instructions on breathing techniques to overcome a tendency to hyperventilation and commenced a low dose of Alprazolam, or Xanax.  She said that he thought he was marginally better this morning and that although he was under stress, he wanted to get through the court process.

1. Dr Welborn thought that Mr Raad was fit to stand trial according to the criteria set out in s 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic), with which she said she was familiar. She considered him not to be psychotic and thought he had not been during the time he had been at the Metropolitan Assessment Prison, about six weeks.

1. She was asked, "What do you see as likely to happen if things continue in the way that they presently are?"  She answered:

I would like to recommend that he have some psychological assistance with anxiety reduction methods, such as I was trying to teach him, some breathing exercises and relaxation exercises, and I was hopeful that they would diminish all his symptoms.  I'm really unable to comment how he is going to go.  He hasn't improved markedly over the weekend, however, I would hope that he would improve and most people do settle with anxiety to some degree or another. 

1. Today the court also heard from Dr Douglas Bell, the authorised psychiatrist and Assistant Clinical Director, Inpatient Operations of Forensicare.  Dr Bell commented on a number of matters, although he had not, himself, examined Mr Raad.  With respect to the difficulty of anticipating what would happen in the future in the light of Dr Welborn's evidence, he said:

Dr Welborn has given evidence that Mr Raad is able to follow the course of proceedings, he's able to give instruction and he's able to understand the nature of the trial and so on.  What we cannot predict is whether at some stage in the future the cumulative stressors which counsel has outlined and the impact on his mental state will be such at some stage in the future, in a categorical sense, as to his no longer being able to meet the requisite standard.

1. Further on, he said:

From our perspective, I think it's a matter of a day to day and a week to week proposition.  Mr Raad is currently being assessed as being fit to stand trial and there are interventions which Dr Welborn has referred to that cannot be expected to ameliorate his anxiety symptoms but hopefully may take some of the more severe elements of his anxiety away, that they may be to some extent subdued.  He will remain anxious; he will remain distressed.  That is to be expected.  The question is with appropriate support and psychological interventions, they may to some extent be contained. 

1. It should be noted that both Dr Talents and Dr Welborn have had involvement with Mr Raad when he and another of the accused, Shane Kent, were first removed from Barwon Prison and placed in the Metropolitan Assessment Prison on 14 March.  They each had depressive symptoms and were unfit to attend court for some days which caused some disruption to the trial immediately prior to Easter.  It will be recalled that shortly after Easter, on 31 March, the conditions under which all of the accused were then incarcerated and transported were ameliorated somewhat as a result of a ruling of this court given on 20 March.  No question of Mr Raad's unfitness to be tried was raised by his counsel or by the court at this stage.

1. Section 9(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) requires a trial judge to initiate an inquiry under the Act into the fitness of a person to stand trial if it appears to him at any stage of the trial that a "real and substantial question as to the defendant's fitness to stand trial" has arisen, whether any such question is raised by either the Crown or the accused, himself.

1. In Kesavarajah v The Queen,[1] the question of fitness to be tried under the Victorian procedure then prevailing was considered by the High Court in the context of federal offences in 1994. Those provisions which were then contained in s 393 of the Crimes Act 1958 (Vic) were somewhat less extensive than is now the case. The High Court held that a judge should leave the issue of fitness to be tried to the special jury, unless no reasonable jury properly instructed could find that the accused was not fit to be tried. However the current Act sets out the criteria to be applied by the judge in determining whether to hold an inquiry, which now is the substitute for the original jury decision.

   [1] (1994) 181 CLR 230.

1. For it to appear to the trial judge that a real and substantial question has arisen, it must appear that, on the evidence before him or her, a jury properly instructed could find that unfitness was made out.  Further, in Kesavarajah the majority concluded that in reaching its decision, a jury would have to consider the accused's prognosis as revealed by the evidence.  It must follow that in considering whether there is a real and substantial question, the judge must also consider any evidence there might be as to the accused's psychiatric prognosis.

1. In this case, having regard to the evidence of Dr Talents, Dr Welborn and, to the extent that it is relevant, Dr Bell, there is not at this stage a real and substantial question to be determined as to Mr Raad's fitness to stand trial.  That is not to say, of course, that such a question might not arise in the future. 

1. Mr McMahon, for Mr Raad, urged the court to consider this question in the context of the bail application which Mr Raad has now commenced, Mr McMahon arguing that the question of Mr Raad's fitness to stand trial will be affected on the evidence by whether he is or is not granted bail.

1. As seductive as this submission might be, it must be rejected. Mr Raad is in gaol. There is a presumption that he will remain there. He has no entitlement to bail. He must overcome the hurdle of s 15AA of the Crimes Act 1914 (Cth) in order to obtain a grant of bail. The question which arises under s 9(2) of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) must be answered on the facts as they currently are, when the question of the existence of a real and substantial question is raised either actually or, as in this case, notionally. Should the question as to whether such an issue exists arise again, either when the accused is on bail, if he is granted bail, or when he is still in custody, the circumstances then prevailing will be as relevant then as those prevailing today are currently relevant. No real or substantial question of Mr Raad's capacity to stand trial is currently apparent and accordingly the trial will proceed uninterrupted.

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