R v Larizza No. Sccrm-02-114

R v LARIZZA
[2003] SASC 366

SULAN J: Giuseppe Larizza was charged that on 28 December 2001 at Somerton Park he murdered Antonia Larizza. The trial was listed to commence on 14 October 2003. On that day I made an order pursuant to s 269K of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) that the trial be adjourned until 16 February 2004. I considered various psychiatric reports, including a report of Dr A S Czechowicz, psychiatrist at the Royal Adelaide Hospital, dated 14 August 2003 in which he concluded that the accused was not fit to stand trial. In a report dated 25 August 2003, Dr K P O’Brien, Clinical Director and Consultant Forensic Psychiatrist at the Royal Adelaide Hospital, also concluded that the accused was unfit to stand trial. Dr O’Brien was of the opinion that there was a reasonable prospect of the accused becoming fit to plead within twelve months. Mr Brebner for the Director of Public Prosecutions and Miss Nelson QC for the accused both applied for an adjournment of the trial for up to twelve months. I adjourned the trial and directed that Dr Czechowicz and Dr O’Brien each provide a further report on or before 9 February 2003 addressing the question of whether the accused’s mental condition has changed and whether it is likely that there is a reasonable prospect that the accused’s mental condition will change over the ensuing eight month period, to the extent that he is or that there is a reasonable prospect that he will be fit to plead. I indicated that I would deliver reasons for my decision in due course.
Background
On 28 December 2001, the accused was arrested and charged with murder of his wife, after police officers had attended at his home at 243 Brighton Road, Somerton Park. Upon arriving at the premises, the police officers observed the deceased in a room at the back of the premises. The deceased had been stabbed. She had died as a result of a stab wound to the left side of her neck. The police observed that the accused had blood on his hands and clothing.
The accused was arraigned in the Supreme Court on 13 May 2002 when he pleaded not guilty. The case was listed for trial to commence on 5 November 2002. That trial date was varied to 18 November 2002. It was then vacated.
On 15 November 2002 at a directions hearing, Mr Mancini, solicitor for the accused, provided a short report from Dr Michelle Trowse, a consultant psychiatrist, who expressed concern that, because of the accused’s mental condition, he may not be sufficiently fit to stand trial. The directions hearing was adjourned until 28 February 2003. On 26 February 2003, Dr Natasha Chow, a psychiatric registrar, reported that she was of the view that the accused was unfit to stand trial. On 28 February 2003, pursuant to s 269WA of the Act, the court ordered that a report be obtained from Dr Czechowicz. On 27 June 2003, pursuant to s 269K of the Act, the court directed two further psychiatric reports be provided, one from Dr Czechowicz and the other from Dr O’Brien.
Section 269K of the Act 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.”
The matter was listed for trial to commence on 13 October 2003.
On 14 August 2003, Dr Czechowicz reported that he was of the opinion that the accused was unfit to stand trial. He observed that the accused was unable to respond rationally to the charges and that he was not in a position to give rational instructions, nor would he be able to understand and follow evidence likely to be presented during the court proceedings. He concluded that the accused was unlikely to become fit to stand trial within the next twelve months.
Dr O’Brien reported on 25 August 2003 that he had seen the accused on 11 July 2003 and again on 15 August 2003. He agreed with the opinion of Dr Czechowicz that the accused has a “chronic, almost intractable psychotic illness” and that he was unfit to stand trial. Dr O’Brien was of the opinion that the accused may ultimately have the capacity to plead and stand trial. He provided a further report on 10 September 2003 in which he concluded that, in his opinion, there was a reasonable prospect of the accused becoming fit to plead within twelve months.
The application to adjourn
On 14 October 2003, Miss Nelson QC advised the court that the accused was currently unable to provide her with instructions due to his mental condition. Section 269W provides that if a defendant is unable to instruct counsel on questions relevant to an investigation under Part 8A of the Act, then counsel may act in the exercise of an independent discretion in what counsel genuinely believes to be in the defendant’s best interests. Miss Nelson QC considered that it was in the accused’s best interest to support the application for an adjournment in order for the accused’s mental capacity to be further assessed over the next twelve months. A question has arisen about the procedure which I should follow.
Mr Brebner submitted that before an order could be made pursuant to s 269K, it was necessary for the court to order an investigation pursuant to s 269J of the Act. Section 269J(1) and (2) provide:
“(1)   If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant’s mental fitness to stand trial.
(2)    The court’s power to order an investigation into the defendant’s mental fitness to stand trial may be exercised –
(a)     on the application of the prosecution or the defence; or
(b)    if the judge considers the investigation necessary to prevent a possible miscarriage of justice – on the judge’s own initiative.”
Mr Brebner submitted that an order under s 269K(2) could only be made after an investigation had been ordered pursuant to s 269J. He submitted that s 269K(3) must be read together with s 269K(1). He submitted that the investigation referred to in s 269K(3) is the investigation ordered pursuant to s 269J and it follows that, before an order under s 269K(2) can be made, an investigation must have been ordered under s 269J.
Miss Nelson QC submitted that s 269K(2) does not exclusively refer to a report ordered pursuant to s 269K(1). She submitted that sub‑section (3) simply gives the court power to revoke any order for a s 269J investigation, if such investigation had been ordered and no further investigation is required.
The law
Part 8A of the Act came into operation on 2 March 1996. It was envisaged that Part 8A provide a code to deal with the issues of mental competence of an accused, both at the time of the commission of an alleged crime, and of an accused’s mental competence to stand trial. One purpose of the legislation was to define the role of the judge and jury in cases where the mental competence of an alleged offender is in issue. The provisions enable the court to undertake investigations and order psychiatric and other expert assessments in cases where the mental condition of a defendant is called into question.
The scheme of the legislation empowered the court to direct and undertake an investigation into an accused person’s fitness to stand trial if there were reasonable grounds to suppose that a person was mentally unfit to stand trial. The court can order the investigation on the application of the prosecution or defence, or on its own motion if the court considers it necessary to prevent a possible miscarriage of justice (s 269J of the Act). When Part 8A was originally enacted, the only procedure available to the court when an issue of mental fitness of an accused to stand trial arose and where there were no reports available to the court, was to order an investigation under s 269J. Section 269K(1) provides that before formally embarking on an investigation of an accused’s mental fitness to stand trial, the court may require the production of psychiatric or other expert reports that may exist on the defendant’s mental condition and may itself, if it thinks fit, have a report prepared on the accused’s mental condition. Section 269K(2) provides that if it appears from a report that the accused is mentally unfit to stand trial, but there is a reasonable prospect that the accused will regain the necessary mental capacity over the next twelve months, the court may adjourn the accused’s trial for not more than twelve months. Section 269K(1), by its terms, presupposes an investigation has been ordered but, before formally embarking upon it, the court may make an order for reports.
After Part 8A of the Act had been in force for some years, it was recognised that there may be circumstances when it is appropriate to obtain psychiatric reports and other expert reports as to a defendant’s mental condition before the matter was formally set for trial and as part of the pre‑trial proceedings. On 29 October 2000, s 269WA was enacted, which empowered the court, if it considered it might expedite the trial, to order the examination of an accused, requiring the accused to undergo an examination by a psychiatrist or other appropriate expert, and that the results of that examination be provided to the court. As a consequence, reports could be obtained before a formal investigation of the accused’s mental fitness to stand trial had been ordered.
In this case, reports were obtained pursuant to s 269WA which addressed the questions of the accused’s mental fitness to stand trial and whether there is a reasonable prospect that the defendant will regain the necessary mental capacity over the next twelve months. The court had sufficient information upon which it could grant an adjournment pursuant to s 269K(2) without having to make an order for reports pursuant to s 269K(1).
I agree with the submissions of Miss Nelson QC that it is not mandatory that an investigation be ordered pursuant to s 269J before the court can make an order pursuant to s 269K(2). In my view, s 269K(3) has application in the case where an investigation pursuant to s 269J has been ordered, but there is no requirement that there be an order pursuant to s 269J before the powers of the court pursuant to s 269K(2) can be invoked.
For the reasons expressed, I made the orders referred to earlier in my reasons.

[2003] SASC 366

22 October 2003