R v Degei

[2020] NSWSC 1267

Supreme Court

New South Wales

Medium Neutral Citation:

R v Degei [2020] NSWSC 1267

Hearing dates:

On the papers

Decision date:

17 September 2020

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

1. Imaueli Jone Degei is unfit to be tried.

2. He is referred to the Mental Health Review Tribunal in accordance with s 14(a) of the Mental Health (Forensic Provisions) Act.

3. The proceedings are adjourned pending any determination of the Mental Health Review Tribunal.

4. Mr Degei is remanded in custody pending any determination of the Mental Health Review Tribunal.

Catchwords:

MENTAL HEALTH – criminal proceedings – fitness to be tried – Presser principles – agreement of parties and experts – accused unfit to be tried

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990 (NSW), s 6

Cases Cited:

Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41

R v Presser [1958] VR 45

Category:

Principal judgment

Parties:

Imaueli Jone Degei (Accused)
Crown

Representation:

Counsel:
P Johnson (Accused)
F Veltro (Crown)
J Sfinas (Crown)

Solicitors:
Aquila Lawyers
Solicitor for Public Prosecutions

File Number(s):

2018/261828

Judgment

1. HIS HONOUR: Mr Imaueli Degei (the accused) is charged with the murder of Ms Kristina Kalnic at Carramar on 25 August 2018. A question has been raised as to his fitness to be tried.

2. The accused first came under notice of authorities for being mentally ill at the age of 17 when he was hospitalised in May 2017. He was released on a community treatment order in October 2017 but hospitalised again in January 2018. He was released on 8 August 2018 with follow up by the Macarthur Assertive Treatment team.

3. Ms Kristina Kalnic, lived with her partner of more than 30 years, Mr Zivan Gajic. On 25 August 2018, Mr Gajic was working on his car when he observed the accused walking unsteadily up the road and around their apartment block. At one point, thinking the accused had collapsed, Mr Gajic asked Ms Kalnic to call the police and ambulance.

4. Ms Kalnic came down from their unit and approached the accused. When she turned away, he punched her in the face. He then stomped on her head three times, killing her.

5. This was an unspeakably tragic loss of life. My deepest sympathies go to Ms Kalnic's family and friends.

6. The parties agree that an inquiry should be held as to whether the accused is fit to be tried pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act). The parties agree that the matter may be dealt with on the papers.

7. I have the benefit of submissions from the Crown and counsel for the accused, as well as reports by forensic psychiatrists, Dr Richard Furst and Professor David Greenberg.

Principles

8. A person’s fitness to be tried is determined according to the standards in R v Presser [1958] VR 45 at 48:

“He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

9. This formulation was approved by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 245 (Mason CJ, Toohey and Gaudron JJ; Deane and Dawson JJ agreeing at 249); [1994] HCA 41. The plurality added (at 246) that the length of the trial is also a factor – the accused must be fit not just at the start but throughout the trial.

10. Section 6 of the Act provides that the inquiry be determined on the balance of probabilities.

Evidence

Report of Dr Richard Furst

11. Dr Furst examined the accused in late 2018. Throughout that examination, the accused appeared at times to be catatonic, and at times distracted by hallucinations.

12. Dr Furst produced a report dated 4 February 2019. He diagnosed the accused with chronic and treatment resistant schizophrenia. The accused experienced religious and paranoid delusions – he claimed to be hearing the voices of angels and demons.

13. While Mr Degei appeared to comprehend the charge, he had a very limited understanding of the roles of the various participants (judge, lawyers, witnesses and the jury). He did not understand what evidence was, or the differences between a plea of guilty and a plea of not guilty.

14. Dr Furst was of the opinion that the accused would be unable to follow or participate in proceedings because of his psychosis. He would struggle to instruct his lawyers or heed their advice. He did not have enough insight into his mental illness to raise it as a defence.

15. Dr Furst concluded that Mr Degei was unfit to stand trial, and unlikely to become fit within 12 months.

Report of Professor David Greenberg

16. About a year later, Professor Greenberg examined the accused and produced a report dated 23 February 2020. In his examination, the accused appeared “blunted”, appeared to laugh spontaneously in response to hallucinations, claimed to have magic powers and said that God and the devil controlled his thoughts.

17. Professor Greenberg diagnosed the accused with schizophrenia, as well as with a substance use disorder (a history of cannabis and ice use).

18. In Professor Greenberg’s view, the accused could understand – to a very rudimentary extent – the charge, the pleas, evidence and the roles of the participants. However, the interference of delusions and hallucinations would prevent him from following and engaging in the trial, appreciating the effect of any evidence, giving evidence himself and instructing his representatives.

19. Prof Greenberg concluded that Mr Degei was unfit to stand trial. He differed from Dr Furst in opining that Mr Degei would likely become fit to be tried within the next 12 months, if he received appropriate care.

Determination

20. The accused appears to have expressed a better understanding of some of the basic features of a trial in Prof Greenberg’s report than he had in Dr Furst’s report, such as the nature of the charges, the available pleas and the roles of the judge, counsel, witnesses and the jury.

21. Critically, however, both experts agreed that the accused would be unable to follow the course of proceedings, give evidence or instruct his lawyers on account of his hallucinations. I find it significant that both experts came to this view in examinations held a year apart.

22. Having regard to the submissions of counsel and the opinions of both experts, I find on the balance of probabilities that the accused is unfit to be tried.

Orders

23. I make the following orders:

1. Imaueli Jone Degei is unfit to be tried.

2. He is referred to the Mental Health Review Tribunal in accordance with s 14(a) of the Mental Health (Forensic Provisions) Act.

3. The proceedings are adjourned pending any determination of the Mental Health Review Tribunal.

4. Mr Degei is remanded in custody pending any determination of the Mental Health Review Tribunal.

5. The Supreme Court Registry is to provide copies of the following documents to the Mental Health Review Tribunal:

1. This judgment and the orders made;

2. Report of Dr Richard Furst dated 4 February 2019;

3. Report of Professor David Greenberg dated 23 February 2020; and

4. The Crown Case Statement.

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Decision last updated: 17 September 2020