R v Charles Robert Moyano
[2015] NSWSC 1444
•28 September 2015
|
New South Wales |
Case Name: | R v Charles Robert Moyano |
Medium Neutral Citation: | [2015] NSWSC 1444 |
Hearing Date(s): | 28 September 2015 |
Date of Orders: | 28 September 2015 |
Decision Date: | 28 September 2015 |
Jurisdiction: | Common Law - Criminal |
Before: | Mathews AJ |
Decision: | 1. Pursuant to section 14 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) I formally find that the accused, Charles Robert Moyano, is unfit to be tried for the offence of murder of Keith William Lee on 5 December 2014. |
Catchwords: | CRIMINAL LAW – procedure – murder – fitness to be tried – “Presser” principles – accused unfit to be tried |
Legislation Cited: | Mental Health (Forensic Provisions) Act 1990 |
Cases Cited: | R v Presser [1958] VR 45 |
Category: | Principal judgment |
Parties: | Crown |
Representation: | Counsel: |
File Number(s): | 2014/359290 |
Publication Restriction: | Not Applicable |
Judgment
The accused, Charles Robert Moyano, has been committed for trial on a charge that on 5 December 2014, he murdered Keith Lee. An issue has been raised as to the accused's mental condition, both at the time of the alleged offence and continuing to the present. Accordingly, on 11 September 2015, an order was made that an enquiry should be conducted as to the accused's fitness to be tried for this offence.
The hearing of that enquiry this morning has been very brief indeed, as both counsel, Mr Bailey, for the Crown, and Ms Loukas of senior counsel for the defence, are in agreement as to the appropriate finding, and the vast majority of the relevant documentation had been provided to me in advance of the hearing.
The accused has been interviewed by psychiatrists on behalf of both the Crown and the defence, in order to assess his fitness to be tried for this offence. Dr Adam Martin saw the accused on behalf of the defence on 17 April 2015 and submitted a report dated 23 April 2015. Dr Olav Nielssen saw him on behalf of the Crown on 3 June 2015 and submitted a report on 16 June 2015. Both psychiatrists considered that the accused suffers from a mental illness, although there was a slight variation as to the precise nature of the illness. Dr Nielssen's diagnosis was that he suffers from chronic schizophrenia, noting in his report that the accused has had three long hospital admissions since 2005, with affirmed diagnose of schizophrenia. Dr Martin considered that the accused suffers from schizo-affective disorder, with an alternative diagnosis of bi-polar disorder or schizophrenia.
Both doctors concluded that the accused was unfit to stand trial at the time of their assessments, although both agreed that, with appropriate medication, it was likely that he would recover sufficiently to become fit for trial within the next 12 months.
The reports, as already noted, were written some months ago now, but, as I shall mention shortly, the situation appears to be essentially unaltered at the present time.
Section 11 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) requires that the judge, in determining a person's fitness to stand trial, is to include the findings of fact which were made and the principles of law which were applied.
As to the principles of law applicable in these proceedings, it has long been accepted that the appropriate principles are those enunciated in R v Presser [1958] VR 45. To very briefly summarise those principles, they require that, in order to be fit to stand trial, a person needs to:
understand the charge against him,
be able to plead to that charge,
understand generally the nature of the proceedings and follow the course of those proceedings,
be able to make his defence,
if represented by counsel, be able to give counsel appropriate instructions.
Dr Martin considered that the accused would have great difficulty communicating to the Court in a coherent manner, and would have significant problems in concentrating on legal processes. This would impact detrimentally on his ability to make a rational defence. At the time of his assessment the accused appeared unable to understand, or communicate the defences which might be available to him, particularly the defence of not guilty on the ground of mental illness, nor could he understand the nature of the legal processes or follow the course of the proceedings. Dr Martin therefore considered that, applying the Presser principles, the accused was at that time unfit to be tried for the present offence.
Dr Nielssen, as already mentioned, concurred with Dr Martin's conclusion. He considered that the accused was aware of the charge against him, but was unable to make his defence as he did not recognise that he was mentally ill at the time of the killing. His grossly disorganised thinking would, in the doctor's opinion, prevent him from following the proceedings in a meaningful way, or providing reliable instructions to his legal representative.
Accordingly, both experts were of the view that the accused essentially fails all but the first of the Presser principles I mentioned earlier.
These reports, of course, date back some months, over five months in the case of Dr Nielssen's report. However at the hearing today the defence, by consent, presented the affidavit of Helen Shaw dated 24 September 2015. Ms Shaw is the solicitor from Legal Aid who has represented the accused throughout these proceedings. The first two times she saw the accused were in December 2014 and January 2015, at which time she formed the view, as a result of his inappropriate responses, that he was unfit to be tried. She saw him again last Thursday, 24 September 2015, when he again gave inappropriate answers and showed a complete lack of understanding of the legal processes involved in his trial. Ms Shaw could see no improvement in his condition over the period that she has been seeing him.
Even more significantly, Dr Martin this morning saw the accused in the cells, before the hearing of this matter. He gave evidence that the mental state of the accused has not greatly changed. He was thought disordered, and kept coming back to problems of hygiene in his current accommodation. He had elevated mood and was suffering from paranoia. The doctor said that he tried to go through the Presser criteria and, essentially, nothing had changed in relation to those criteria since his report of 23 April. The doctor concluded that, in his opinion, the accused does not meet the Presser criteria.
In cross-examination he said that with appropriate medication the accused does have the potential to become fit to be tried within a 12 month period.
Section 12 of the Act provides that an enquiry as to a person's fitness to be tried is not to be conducted in an adversarial manner. That has certainly been adhered to here where, as already mentioned, counsel for both the Crown and the defence agree that the appropriate finding in this case is that the accused is at present unfit to be tried for this offence. On the basis of the whole of the evidence, in particular the expert evidence, which is all one way on this issue, I am more than satisfied that this is the only appropriate finding.
Accordingly, pursuant to s 14 of the Act:
(1)I formally find that the accused, Charles Robert Moyano, is unfit to be tried for the offence of murder of Keith William Lee on 5 December 2014.
(2)In accordance with section 14 of the Act, I refer this matter to the Mental Health Review Tribunal.
(3)Pursuant to section 14(b)(iii) of the Act I remand the accused in custody, pending the determination of the Mental Health Review Tribunal, under section 16 of the Act.
(4)I direct the Supreme Court Registry to provide the following documentation to the tribunal:
(a)A copy of these findings.
(b)A copy of any orders made for detention.
(c)A transcript of these proceedings.
(d)A copy of the Crown papers tendered at this enquiry, which include
(i)A copy of any psychiatric reports tendered to the Court during these proceedings, and
(ii)The Crown Case Statement.
(e)Any other exhibits tendered to the Court in the enquiry.
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