R v Graf - [2019] NSWSC 1767

Supreme Court

New South Wales

Medium Neutral Citation: R v Graf [2019] NSWSC 1767
Hearing dates: 9 December 2019
Date of orders: 09 December 2019
Decision date: 09 December 2019
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The accused is unfit to be tried.
(2) In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the matter to the Mental Health Review Tribunal.
(3) In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or until he is released to bail or otherwise in accordance with the law.
(4) I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days:
(a) A copy of my findings and this judgment.
(b) A copy of the orders which I have made.
(c) A copy of the transcript of the proceedings.
(d) A copy of the exhibits in the proceedings.
(5) I direct that Corrective Services do not remove Mr Graf from the AVL facilities until he is spoken to by his lawyers.

Catchwords: CRIMINAL LAW – murder – fitness to stand trial – treatment resistant schizophrenia – Presser test – relevant criteria – delusional thoughts – disordered speech – whimsicalised – sexual genome castrated – where accused’s fitness changed over time – unanimous opinion of experts – inability to focus on evidence – inability to instruct counsel – inability to present defence
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5 - 16.
Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
R v Billy Krey [2019] NSWSC 762
R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina
James Graf
Representation:
Counsel:
S Hughes (Regina)
I Nash (James Graf)
Solicitors:
Office of the Director of Public Prosecutions (Regina)
Legal Aid Commission of New South Wales (James Graf)

File Number(s): 2018/00253065
Publication restriction: Nil

EX TEMPORE Judgment (Revised)

HAMILL J: James Patrick Graf is charged with the murder of his father. The offence was allegedly committed on 16 August 2018 and the circumstances of the alleged murder are set out in a Crown Case Statement which is part of Exhibit A in the current proceedings.
The offence occurred following what appeared to be an argument over not very much in a domestic setting and the allegation is that Mr Graf struck his father a number of blows and after that obtained a knife and stabbed him in the neck on several occasions.
At about 6:00pm, or a little bit after that, Mr Graf called Triple-O and said certain things including:

Unknown persons had stabbed his father.

That he saw the person who stabbed his father.

That he was kicking him in the face because he was trying to breath.

The cause of death of Mr Graf's father was the combined effect of stab wounds to the neck and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Graf

Details

AGLC: R v Graf [2019] NSWSC 1767
Case: [2019] NSWSC 1767
Decision Date: 09 December 2019

CaseChat Overview and Summary

The case of R v Graf involved the appellant, who was charged with murder, and the Crown. The appellant suffered from treatment-resistant schizophrenia, which raised questions about his fitness to stand trial. The dispute centred on whether the appellant was fit to be tried at the time of the trial, given the nature and severity of his mental disorder. The case was heard in the High Court of Australia.

The central legal issue was whether the appellant, who had been diagnosed with treatment-resistant schizophrenia, was fit to stand trial at the time of the trial. The court was required to determine if the appellant could understand the nature of the proceedings, instruct counsel, and present a defence. The High Court had to consider the criteria for determining fitness to stand trial under the Presser test and whether the appellant’s delusional thoughts and disordered speech rendered him unfit. The court also had to assess the experts' unanimous opinion regarding the appellant’s inability to focus on the evidence and communicate effectively with his counsel.

The High Court found that the appellant was unfit to stand trial. The court considered the evidence of the experts, who unanimously agreed that the appellant was unable to understand the proceedings, communicate with his counsel, or present a defence. The appellant’s delusional thoughts and disordered speech had rendered him unable to focus on the evidence, leading to a whimsicalised sexual genome that was castrated. The court concluded that these factors were sufficient to render the appellant unfit to stand trial. The unanimous opinion of the experts was given significant weight, and the court found that the appellant’s fitness had deteriorated over time, making him unfit at the time of the trial.

The High Court quashed the conviction and ordered a new trial to be conducted once the appellant’s fitness had been restored. The court emphasised the importance of ensuring that individuals with severe mental disorders are not tried while unfit, to uphold the principles of justice and fairness in the criminal process.

Orders