R v Larizza - [2004] SASC 360

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LARIZZA
Judgment of The Honourable Justice Gray
12 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
Accused charged with murder - fitness of the accused to stand trial was heard separately and before any other issue pursuant to section 269L Criminal Law Consolidation Act - court ordered psychiatric assessments pursuant to section 269WA - accused diagnosed with overt psychotic state - court found accused unfit to stand trial pursuant to section 269H.
Criminal Law Consolidation Act 1988 (SA) s 269H, s 269I, s 269J, s 269K, s 269L, s 269M, s 269MA, s 269WA, referred to.
R v Larizza (2003) 142 A Crim R 249; R v Eastman (2000) 203 CLR 1; R v Sexton (2000) 77 SASR 405; R v Presser [1985] VR 45; R v Ngatayi (1980) 147 CLR 1; R v Kesvavarajah (1994) 181 CLR 230, considered.

R v LARIZZA
[2004] SASC 360
Criminal
GRAY J
Introduction

On 28 December 2001, the accused Guiseppie Larizza was charged with murder of his wife Antonia Larizza. An issue has arisen as to his medical fitness to stand trial.
Part 8A of the Criminal Law Consolidation Act 1988 (SA) came into effect in 1996 as a consequence of amendments introduced by the Criminal Law Consolidation (Mental Impairment) Act 1995. Prior to the amendment the Attorney-General during the Second Reading Speech observed:
The test for legal “insanity” and criminal responsibility, the court procedures by which this matter is dealt with and the outcome of a successful defence have all occasioned increasing disquiet and dissatisfaction in recent times. So far as the test is concerned, it has remained unchanged in form since 1843. Varying interpretations by the courts since that time have held that a severe anti-social personality disorder is not, or may not be, a mental illness, while, on the other hand, psychomotor epilepsy has been held to be a mental illness.
…
The result of all this is that the role of mental impairment and intellectual disability in the criminal justice system is massively understated with consequent personal and systemic injustice[1].
[1] South Australia, Parliamentary Debates, House of Assembly, 21 November 1995, 617, (S J Baker)
These concerns were addressed by the introduction of Part 8A which provides a comprehensive manual of law and procedure relevant to an accused person’s fitness to stand trial and the ‘defence’ of mental impairment.
The Medical History
On 15 November 2002 counsel for the accused at a directions hearing tendered a report from a psychiatrist Dr Michelle Trowse, expressing the opinion that the accused may not be fit to stand trial due to a mental condition. In February 2003 psychiatric registrar Dr Natasha Chow expressed the view that the accused was unfit to stand trial.
On 28 February 2003 a judge of this court acting pursuant to section 269WA of the Criminal Law Consolidation Act ordered that a further psychiatric report be obtained from a psychiatrist, Dr Andrew Czechowicz. Section 269WA provides:
(1)     If in pre-trial proceedings it appears to the court that it might expedite the trial to order the examination of the defendant under this section in anticipation of trial, the court may, by order—
(a)     require the defendant to undergo an examination by a psychiatrist or other appropriate expert; and
(b)     require that the results of the examination be reported to the court.
(2)     The prosecution and the defence are entitled to access to the report.
On 9 May 2003 Dr Czechowicz reported to the court on the question of the accused’s fitness to stand trial:
On the issue of prognosis – at this stage it is uncertain - however because he is obviously psychotic and frail. It is difficult to transfer him to the gaol environment because he is still in active treatment and needs to be closely observed.
His psychotic symptoms, which persist to this day, continue to affect his fitness for trial – ie he is still unfit although his mood has marginally improved.
On 27 June 2003 pursuant to section 269K of the Criminal Law Consolidation Act a judge of this court ordered that a further report be prepared by Dr Czechowicz and that a report be prepared by another psychiatrist Dr Kenneth O’Brien. Section 269K provides:
(1)     Before formally embarking on an investigation under this Division of a defendant's mental fitness to stand trial, a court may require production of psychiatric or other expert reports that may exist on the defendant's mental condition and may, if it thinks fit, itself have a report prepared on the defendant's mental condition.
(2)     If it appears from a report that the defendant is mentally unfit to stand trial but there is a reasonable prospect that the defendant will regain the necessary mental capacity over the next 12 months, the court may adjourn the defendant's trial for not more than 12 months.
(3)     If after the adjournment the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may revoke the order for the investigation and the trial will then proceed in the normal way.
On 14 Aug 2003 Dr Czechowicz reported:
…it has been evident that Mr Larizza has not been fit to stand trial over the past year. It is my opinion that he will not become fit to stand trial in the next 12 months nor as I stated above in the foreseeable future...[I]n my opinion the person is unable to respond rationally to his charges nor is he in a position to give rational instructions nor would he be able to understand and follow evidence likely to be presented during the court proceeding.
Dr O’Brien in his report of 25 Aug 2003 expressed the following opinion:
…[I]t is possible for an individual to be psychotic and still be fit to stand trial, provided that the psychotic beliefs do not directly impinge on his/her understanding of the court proceedings and do not interfere with the capacity of the defendant to instruct defence counsel, follow proceedings, etc. In his reports, Dr Czechowicz has quite correctly emphasised the continuing presence of Mr Larizza’s psychotic illness, about which I have no disagreement. However, on the basis of two separate interviews with Mr Larizza with respect specifically to his fitness to plead, I do not have quite such a pessimistic view about Mr Larizza’s ultimate capacity to become fit. Indeed, it may well be possible for him to further improve on his fitness level to an extent that he could be fit to plead within twelve months (Dr Czechowicz is quite pessimistic about this). Whilst there is not a significant disagreement of opinion between Dr Czechowicz and I, I do believe that the circumstances warrant the ordering of a third and independent psychiatric report addressing two questions, namely (1) his current fitness to plead, and (2) his capacity within the next twelve months to achieve an adequate level of fitness, should he be considered unfit at the present time.
On 14 October 2003 a judge of this court ordered that the accused’s trial be adjourned. The judge had particular regard to the opinion of Dr O’Brien that the accused’s condition might improve within the next 12 months to the point where he would be fit to stand trial. The judge ordered that further reports be provided by Dr Czechowicz and Dr O’Brien.
Dr Czechowicz reported on 26 March 2004:
The psychosis although more encapsulated seems not to have abated at all in intensity but it is not in the foreground. However if subjected to stress especially if his children were to be called to give evidence I suspect that his capacity to respond normally to the court process would be significantly compromised.
On the balance of probabilities he continues to be unfit to plead and I do not see any hope of a change in the near future. Two years have elapsed – inclusive of one year of reasonably intensive treatment without much change – as outlined above.
The only issue that remains is the possibility of malingering….I have considered this issue and although I cannot rule out simulation I have not been convinced that there is clear proof of simulation.
Dr O’Brien reported on 12 May 2004:
In general terms, there has been a gradual improvement in Mr Larizza’s condition. However, he retains a variety of entrenched delusional beliefs particularly about the welfare of all three of his children but in particular his son Dominic. When talking about his son he becomes somewhat distressed and teary. He is quite preoccupied about this. Whilst he has a general knowledge about the technical aspects of the court proceedings, it is my view that his delusional belief system, and its intrusiveness, interferes with his capacity to concentrate on the court proceedings or to meaningfully engage in them. His belief system also, may impinge on his ability to instruct his lawyer. There is also a suggestion in his belief system that lawyers and judges are involved in the detention of his three children which might further impact on his fitness to plead/stand trial.
…
As a result of my two recent examinations of Mr Larizza, I am of the view that at the present time he continues to be unfit to plead/stand trial. Notwithstanding some improvement in the past few months, I am now pessimistic about his capacity to regain his fitness, at least for a protracted period of time.
On 28 of July 2004 a judge of this court directed that there be a hearing on the issue of the accused’s fitness to stand trial.[2] Further reports from Dr Czechowicz and Dr O’Brien were ordered.
[2] R v Larizza (2003) 142 A Crim R 249
In his final report of 14 Sept 2004 Dr Czechowicz observed:
[The accused] is still unfit to plead. I reiterate the opinion that I expressed a year ago (6/8/03) and that I reiterated in my formal report on 14/8/2003.
His condition is unlikely to change in the next 2 or 3 years but I consider him relatively a “good risk” to consider potential ongoing treatment as a forensic patient under strict conditions of licence.
I still consider malingering is a possibility but unlikely given the reasons stated previously.
…
Originally I considered that the paranoid delusional symptoms might also have been a symptom of severe depression however these symptoms rather than abating seem to have crystallised and seem to be firmer now that depression has been treated and improved.
Dr O’Brien’s final report of 24 September 2004 concluded:
I put a series of questions to Mr Larizza to evaluate his fitness to plead/stand trial. He is aware of the nature of the charge against him, he is aware that Mr Mancini is representing him but told me he does not trust Mr Mancini. He is aware that a barrister, Miss Nelson, is also involved in the case although he has not met her. With respect to his views about Miss Nelson he told me “she is linked to Mancini, Mancini found her”. He said that he was uncertain about her.
He understood the role and function of a judge. Notwithstanding his distrust of a previous judge, he told me he did not have any concerns about the honesty/integrity of the current judge. He understood the role of a prosecutor. He understood the concept of a jury and its role. He told me that if he could not follow court proceedings he would ask Mr Mancini. In view of his earlier statement that he did not trust Mr Mancini, I asked him to reconsider this answer but he told me that even though he did not trust him he would still ask him relevant questions.
…
Again, Mr Larizza has, in my opinion, an adequate knowledge about the technical aspects of the court proceedings. However, I continue to hold significant concerns about his ongoing mental health. His delusional belief system about his children continues, notwithstanding treatment. This should now be regarded and [sic] chronic and almost intractable. Previously, I have given my opinion that “his delusional belief system, and its intrusiveness, interferes with his capacity to concentrate on court proceedings or to meaningfully engage in them”. I have no reason to alter that opinion. Furthermore, since my previous interview with him his belief system about the malign influence of a lawyer and judge has become more specific and targeted and I believe that this also adversely affects his fitness to plead/stand trial.
…
As a result of my most recent interview with Mr Larizza, I continue to hold the opinion that he is unfit to plead/stand trial. I reiterate my previous opinion that I am pessimistic about his capacity to regain his fitness, at least for a protracted period of time.
The Hearing
On 27 September 2004 the hearing proceeded to determine the accused’s fitness to stand trial. The court ordered pursuant to section 269L of the Criminal Law Consolidation Act that the question of fitness to stand trial be considered separately from and before any other issue.[3] At the hearing the accused assumed the role of dux litis.
The Evidence
[3] Section 269L provides:
Dr O’Brien gave evidence. His reports of 25 August 2003, 12 May 2004 and 24 September 2004 were tendered. Relevant extracts have been referred to earlier in these reasons. Dr O’Brien confirmed his opinion that the accused was unfit to stand trial. Dr Czechowicz also gave evidence. His reports of 9 May 2003, 14 August 2003, 26 March 2004 and 14 September 2004 were tendered. Relevant extracts have also been referred to earlier. Dr Czechowicz confirmed his opinion that the accused was unfit to stand trial. Reports from psychiatrists Dr Trowse, Dr Chow and Dr Branson were also tendered. An extract from the records of the South Australian Mental Health Services concerning the treatment of the accused was tendered.
Counsel for the Crown tendered declarations by consent from a number of witnesses concerning the circumstances of the killing. These declarations also contained evidence of admissions made by the accused about his involvement in the killing.
It was agreed that the declarations were before the Court as the evidence that the declarants would give on oath had they been called to give evidence.
The Legal Issues
Pursuant to section 269J(1) of the Act, if there are reasonable grounds to suppose a person is mentally unfit to stand trial, the court may order an investigation of that person’s mental fitness.
This hearing is governed by the provisions of section 269M of the Act which provides:
(1)     The court—
(a)     must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and
…
(3)At the conclusion of the trial of the defendant's mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and—
(a)     if so—must record a finding to that effect;
(b)     if not—must proceed with the trial in the normal way.
An accused’s fitness to plead and fitness to stand trial is presumed, unless it is established by an investigation into the accused’s mental state that the accused is unfit.[4] The court must determine whether it has been established by an accused on the balance of probabilities that the accused is unfit to stand trial.[5] The statutory test is set out in section 269H of the Act:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
[4] See section 269I of the Criminal Law Consolidation Act 1935 (SA)
[5] See section 269MA(3) of the Criminal Law Consolidation Act 1935 (SA)
In Eastman[6] Gaudron J, when addressing the ACT legislative scheme, noted that the common law guarantee of a fair trial and confirmed that an accused person should not be tried unless he or she is fit to plead:
Traditionally, an accused person has not been put on trial unless fit to plead because of 'the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing'. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.
It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication. There is nothing in s 428E to suggest any departure from the common law's guarantee of a fair trial according to law or, if there be a difference, the common law's requirement that an accused person not to be tried unless he or she is fit to plead. On that basis, s 428E is to be construed as doing no more than directing the trial judge as to the steps to be taken if 'on the trial of a person ... the issue of fitness to plead ... is raised'. It says nothing as to the situation if, for whatever reason, there is a question as to the accused's fitness to plead but the issue is not raised at the trial.
These observations are of relevance to this State’s statutory regime. Section 269H identifies the same criteria as exist at common law. At common law the issue of fitness to plead is left to the jury. In Sexton[7] it was observed:
It is to be observed that [section 269H] makes reference to mental unfitness, in contrast to mental illness. Mental unfitness is identified as a disorder or impairment to a person's mental process so that the person is, in general terms, unable to understand the trial process and their part in that process.
A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause is the relevant criterion to determine unfitness for trial. Section 269H encapsulates the same criterion as the common law in regard to the determination of unfitness for trial.
[6] (2000) 203 CLR 1 at 22-23
[7] (2000) 77 SASR 405 at 413-414
In order to be fit to stand trial, an accused can be expected to have the mental capacity to understand the charge, plead to the charge, exercise the right of challenge, understand the nature of the proceedings in a general sense, understand the substantial effect of the evidence and defend or answer the charge through instructing counsel.
An accused must have sufficient capacity to instruct counsel and to make the accused’s version of the facts known to counsel and the court.
Counsel for the Crown referred to the decision of Presser[8] where Smith J observed:
[The accused] needs, I think 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 the nature of the proceeding, namely, that it is an inquiry as to whether he did what he was 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 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 to and to make his defence and his version of the facts known to the court and to his counsel, if any.
These remarks were approved in Ngatayi,[9] Kesvavarajah,[10] Eastman[11] and Sexton.[12]
[8] [1958] VR 45 at 48
[9] (1980) 147 CLR 1
[10] (1994) 181 CLR 230
[11] (2000) 203 CLR 1
[12] (2000) 77 SASR 405

The test of mental fitness to stand trial needs to be applied in a reasonable and commonsense fashion. The question is whether the accused, because of disordered or impaired mental process, fails to attain certain minimum standards which need to be achieved before an accused can be tried without any injustice.
Discussion of the Evidence
Dr O’Brien gave evidence at the hearing in amplification of his written reports. He confirmed that the accused when first examined in September 2002 was suffering from acute depression with an indication that he was also suffering from a psychotic illness. Following successful treatment of the depression the psychotic symptoms remained. Dr O’Brien then formed the opinion that the accused was suffering from acute psychosis. This, he explained, is a recognised psychiatric illness.
Symptoms experienced by the accused included delusional thought processes accompanied by auditory hallucinations. The accused apparently believes that three of his children are in custody and are being tortured. His son Dominic is said by the accused to be having a particularly difficult time. The auditory hallucinations include conversations that Dominic has with the accused. These take place through air conditioning ducts, and sometimes by satellite. Dr O’Brien was of the opinion that the accused’s mental condition was unlikely to improve in the foreseeable future.
In Dr O’Brien’s opinion the accused would not be able to rationally respond during a trial when in a psychotic state. It was Dr O’Brien’s view that circumstances would arise during the course of the trial that would give rise to delusional thought processes. As a result it was probable that the accused would not be able to properly understand what was going on or be able to provide instructions to counsel. Dr O’Brien in his report of 24 September 2004 concluded that the accused’s capacity to undertake such tasks is compromised by his delusional thoughts.
Counsel for the Crown closely cross-examined Dr O’Brien. He accepted the possibility that a carefully managed trial may minimise stressors on the accused. However he considered that the accused, when faced with even a carefully managed trial, would on the probabilities be unable to cope. The circumstances of the trial would almost inevitably lead to delusional thought processes and the development of an overt psychotic state. His view remained that on the probabilities the accused was unfit to stand trial.
Dr Czechowicz confirmed his initial opinion that the accused was unfit to stand trial. He confirmed his diagnosis that the accused suffered from a psychotic illness. He explained that the accused’s mental illness displayed features of schizophrenia. It was Dr Czechowicz’s view that any discussion about the murder or the killing of the accused’s wife would lead the accused to have thoughts about his children. This would necessarily lead to the development of irrational and delusional thought processes. This pattern was evident from his past history and was disclosed in the treatment records tendered at the hearing. For example the treatment notes record a discussion about the killing that led Mr Larizza to experience the following delusional thoughts about his children:
They are in prison because of what their lawyer did. It’s their lawyer’s fault. When asked how the lawyer caused this, the patient said that he ‘found out that the lawyer was dishonest and so on and so forth’.
Counsel for the Crown closely cross-examined Dr Czechowicz. He agreed that there were many aspects of the ordinary trial procedure the accused could comprehend. However, difficulty would arise when the accused’s mental functioning moved from a state of rationality to irrationality. Dr Czechowicz considered that this was likely to occur during the course of the trial.
It was Dr Czechowicz’s opinion that the trial would be unmanageable for the accused. He remained of the opinion that it was likely that the mental illness of the accused would render him unfit to stand trial. He explained that it was difficult to pinpoint the precise point of time when the accused’s rational thought ceased and delusional thought commenced.
Both Drs O’Brien and Czechowicz considered that it was possible that the accused was a malingerer or fabricator. Dr Czechowicz considered the possibility to be highly unlikely.
Findings
I find on the probabilities that the accused suffers from a mental condition known as an overt psychotic state. The accused’s condition manifests itself in delusional or irrational thought. Its more likely than not in the course of a trial that the accused will suffer from delusional and irrational thoughts about his children, the lawyers in the case, court officials, and the judge. This overt psychotic state will preclude the accused from a rational understanding of his trial, and of the ability to rationally instruct his advisors. The accused needs to be able to rationally follow and understand and instruct. On the probabilities this cannot occur. In these circumstances a fair trial cannot be held.
I accept the evidence of Dr O’Brien and Dr Czechowicz and I accept their opinions that it is probable that the accused’s mental condition will so impede his ability to understand trial processes and to instruct counsel that he is unfit to stand trial.
I find that the accused unfit to stand trial.

If the court orders an investigation into a defendant's mental fitness to stand trial, the question of the defendant's mental fitness to stand trial may, at the discretion of the trial judge, be separately tried before any other issue that is to be tried or after a trial of the objective elements of the alleged offence.