R v Hassan - [2004] VSC 85

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1481 of 2003

THE QUEEN

MOHAMUD HASSAN

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 January 2004 to 30 January 2004
DATE OF RULING:	28 January 2004
CASE MAY BE CITED AS:	R v Hassan
MEDIUM NEUTRAL CITATION:	[2004] VSC 85

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Ruling No. 2

Application to exclude account given by accused in the course of a psychiatric assessment – Account given for purposes of Parts 2, 3 and 4 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Court approving need for assessment - Whether accused's account capable of amounting to consciousness of guilt – Whether account reliable – Unfairness - Section 76 – Evidence excluded.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr G. Lyon	Victoria Legal Aid

HIS HONOUR:

The prosecution has given notice of its intention to adduce evidence of a portion of a psychiatric report which contains an account by the accused, Mohamud Hassan, of his movements at the time of the commission of the offence with which he is charged.

The defence has objected to such evidence being introduced on the grounds that it is inadmissible or should be excluded in the exercise of the court’s discretion.

At the time the accused gave this account to the psychiatrist, he had been charged with murder and was in custody. The medical assessment had been requested by the Office of Public Prosecutions (hereafter OPP) for two express purposes. The assessment was to determine whether or not the accused was fit to plead and whether there was evidence that may support a defence of mental impairment.

At the conclusion of submissions I ruled that I would not permit the Crown to call such evidence. These reasons for so ruling must of necessity be less than comprehensive having regard to the time constraints of the trial and the limited manner in which the matter was argued.

The accused was first diagnosed as suffering from schizophrenia in February 2002 and was prescribed a typical anti-psychotic medication. During the months of May and June 2002, it appears that he failed to attend four appointments with his psychiatrist. On 14 June 2002 it is alleged that the accused stabbed Andrew Smith who died from this injury on 11 July 2002. The accused was arrested in August 2002 and has been in custody ever since, bail having been refused. The accused’s mental condition deteriorated as a consequence of his remand at the Melbourne Assessment Centre and he was transferred to the Thomas Embling Hospital from the Melbourne Assessment Prison on 31 October 2002 under s.16(3)(b) Mental Health Act 1986.

The accused’s trial on one count of murder was fixed for hearing on 19 January 2004. When the matter came before me for mention on 19 December 2003, I was informed by both parties that they were intending to obtain…

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 Hassan

Details

AGLC: R v Hassan [2004] VSC 85
Case: [2004] VSC 85
Decision Date: 28 January 2004

CaseChat Overview and Summary

The case of R v Hassan involved an application to exclude an account provided by the accused during a psychiatric evaluation. The court was asked to determine the admissibility of this account for the purposes of Parts 2, 3, and 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The primary issue was whether the account could be considered as evidence of the accused's consciousness of guilt, and if it was reliable enough to be admissible under the Act.

The court had to assess the admissibility of the account in light of Section 76 of the Evidence Act, which pertains to the exclusion of evidence on the grounds of unfairness. The court considered whether the account's admission would be unfair to the accused, potentially violating the principles of natural justice. The court's reasoning involved a detailed analysis of the circumstances surrounding the account's procurement, its contents, and the overall fairness of allowing it as evidence.

After thorough deliberation, the court concluded that the account was not reliable and its admission would indeed be unfair to the accused. Consequently, the court ruled to exclude the account from being used as evidence in the trial. The exclusion was based on the account's lack of reliability and the potential for unfairness, which outweighed any probative value it might have had. This decision ensured that the trial proceeded in a manner that adhered to the principles of fairness and justice.

Orders