R v Esau

[2016] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ESAU

[2016] SASCFC 143

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Lovell)

21 December 2016

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED

Appeal against conviction.

The appellant was found guilty after a trial in the District Court of importing a commercial quantity of a border controlled drug.

During the course of the trial, the appellant’s counsel initially expressed concerns whether the appellant was fit to stand trial. After the close of the prosecution case the appellant’s counsel made an application for an investigation into the appellant’s fitness to plead but was then instructed by the appellant to withdraw the application.

On the hearing of the appeal, a psychiatrist provided reports expressing the opinion that the appellant had been suffering from schizophrenia at the time of the trial and had been unfit to plead. The respondent did not oppose the appeal being allowed in these circumstances.

Held by the Court:

1. It has been established that the appellant was unfit to plead at the time of his trial (at [12]).

2. Appeal allowed, verdict set aside and matter remitted to the District Court (at [17]).

Crimes Act 1914 (Cth) s 20B; Criminal Code (Cth) s 307.1; Criminal Law Consolidation Act 1935 (SA) s 269J, s 269W, referred to.

R v ESAU
[2016] SASCFC 143

Court of Criminal Appeal: Blue, Nicholson and Lovell JJ

THE COURT:

1. This is an appeal against conviction. These are the Court’s reasons for making orders on 2 December 2016 allowing the appeal, setting aside the appellant’s conviction and remitting the matter to the District Court.

2. The appellant, Terry Esau, was in April 2016 found guilty by a jury in the District Court of importing a commercial quantity of a border controlled drug.[1]

   [1]    Criminal Code (Cth) s 307.1(1).

3. The appellant originally appealed against his conviction on grounds including that the Judge erred in refusing to order an investigation as to his fitness to stand trial.

4. Before the jury was empanelled, counsel for the appellant informed the Judge that there were concerns whether he fully understood the evidence, was rational in his responses and instructions as to the allegations and the evidence, and was fit to stand trial. Counsel informed the Judge that he had nonetheless decided at that stage not to exercise a discretion under section 269W of the Criminal Law Consolidation Act 1935 (SA) (the Act).

5. On occasions during the prosecution case, counsel for the appellant reiterated his concerns about the appellant’s fitness to stand trial but did not make an application for an investigation under section 20B of the Crimes Act 1914 (Cth) and section 269J of the Act into the appellant’s fitness to plead.

6. At the close of the prosecution case, counsel for the appellant applied to the Judge to conduct an investigation into the appellant’s fitness to plead but, after a short adjournment, told the Judge that he was instructed by the appellant not to proceed with the application.

7. The appellant then gave evidence in his own case which included answers characterised by the prosecutor in his closing address to the jury as “nonsensical”.

8. During the hearing of the appeal, the question was raised whether an expert psychiatric opinion should be obtained concerning the appellant’s mental competence and fitness to plead at the time of his trial in April 2016. Senior counsel on appeal was instructed by the appellant not to seek such an opinion but invoked the power under section 269W to exercise his own independent judgement to do so in the best interests of the appellant. The hearing of the appeal was adjourned for this purpose.

9. Dr Brereton, a forensic psychiatrist, was requested to interview the appellant and express an opinion, having regard to the available material, whether there were reasonable grounds to suppose that the appellant was mentally unfit to stand trial at the time of his trial. Dr Brereton provided a report dated 8 September 2016 in which he reported that he attempted to interview the appellant; that he spoke to the appellant for ten minutes, and that the appellant told him that he did not wish to talk to him. He expressed the opinion, based on reading the trial transcript and underlying communications between the appellant and purported Nigerian officials and his ten minute interview, that there were reasonable grounds to suppose the appellant was mentally unfit to stand trial at the time of his trial.

10. After Dr Brereton’s initial report was provided, the appellant was admitted to James Nash House on 24 October 2016. Dr Brereton attempted to interview the appellant again on 25 November 2016 and spoke to him for 15 minutes. Dr Brereton referred to the notes prepared by the appellant’s treating doctors at James Nash House. Dr Brereton provided a report dated 28 November 2016 in which he expressed the opinion that the appellant has a psychotic illness, the most likely diagnosis being schizophrenia; that the appellant is presently being given antipsychotic medication against his will under an Inpatient Treatment Order; and expressed the opinion that the appellant has been suffering from schizophrenia and symptoms of psychosis for at least three years and that his prognosis is reasonably poor. He expressed the opinion that the appellant was unfit to plead at the time of his trial. He said that two psychiatrists at James Nash House concurred with his diagnosis.

11. At the resumed hearing of the appeal on 2 December 2016, senior counsel for the appellant applied for permission to amend the notice of appeal to substitute for the existing unfit to stand trial ground a ground that “fresh evidence in the form of two medical reports from Dr W Brereton dated 8 September and 28 November 2016 show that on the balance of probabilities the appellant was mentally unfit to stand trial at the time of his trial and that as a result there has been a substantial miscarriage of justice”. Senior counsel for the respondent consented to the amendment and the reception of Dr Brereton’s reports as fresh evidence and informed the Court that the respondent did not oppose disposition of the appeal on the basis that the appeal be allowed, the verdict set aside and the matter remitted to the District Court.

12. We were satisfied that Dr Brereton’s reports should be received as fresh evidence, that the appellant had been unfit to plead at the time of the trial and that the appeal should be allowed. We made orders allowing the appeal, setting aside the verdict and remitting the matter to the District Court. Although it will be a matter for the District Court, it may be expected that there will be an investigation under section 269J into the appellant’s fitness to plead and perhaps at the same time his mental competence to commit the offence, which investigation is unlikely to be opposed by the respondent.