R v Lipohar

[2024] NSWDC 374

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lipohar [2024] NSWDC 374

Hearing dates:

13 August 2024

Date of orders:

26 August 2024

Decision date:

13 August 2024

Jurisdiction:

Criminal

Before:

Bennett SC ADCJ

Decision:

The Accused is Unfit for Trial

Catchwords:

Mental Health Fitness Hearing – Accused’s fitness to stand trial

Legislation Cited:

Crimes Act 1900 s33(1)(b)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Part 4

Cases Cited:

Kesavarajah v The Queen [1994] HCA 41

Reg. v.Presser(3) (1958) VR 45

Category:

Principal judgment

Parties:

Dushan James Lipohar (Accused)
Rex (Prosecutor)

Representation:

Counsel:
M Davies (Counsel for the accused)
T Bailey (Crown)
Solicitors:
R Harrison (Defence)
Office of the Director of Public Prosecutions

File Number(s):

2023/00219775

Publication restriction:

Nil

JUDGMENT

Introduction

1. Dushan James Lipohar was committed to the District Court of New South Wales for the following offence presented upon indictment in the following terms:

On 10 July 2023, at Albury in the State of New South Wales, did wound James Wearing with intent to cause James Wearing grievous bodily harm.

S 33(1)(b) Crimes Act 1900 Law part code 63628

2. It is uncontroversial that the question of fitness might be raised when it was in the prosecution sequence and that there was no need for the accused to be arraigned before the question is considered and determined.

3. It is also uncontroversial that the question of fitness was raised in good faith.

The Hearing

4. The proceedings were mentioned on 12 August 2024, the first day of the current sittings of the court in Albury. The parties provided the following documents:

1. The indictment.

2. Proposed orders upon which the parties are agreed should the accused by referred to the Mental Health Review Tribunal.

3. The Crown Case Statement.

4. The report from Dr Adam Martin, Forensic Psychiatrist, of 15 May 2024.

5. The reports of Dr Richard Furst, Forensic Psychiatrist, of 21 December 2023 and 26 July 2024.

The Crown Case

5. About 10:00 am on Monday 10 July 2023 James Wearing and his co-worker were delivering furniture to an address in Albury, during which they disassembled a bed so that it could be brought into the apartment where it would be reassembled. When he went to retrieve a piece of the furniture from outside the accused tapped his shoulder, and felt a sharp object penetrate his neck. The accused had two knives. Mr Wearing retreated to the apartment, locked the door, followed by the accused who kicked at it. The three-to-five-centimetre knife wound to the left of Mr Wearing’s neck was not life threatening but the weapon narrowly missed a critical artery. The police arrested the accused in Unit 4 in the building. He appeared confused and disorientated. He said initially he was troubled by the noise but later offered that he thought Mr Wearing was there to rob him.

The Accused’s Fitness

6. These proceedings are pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which in Part 4 provides for the determination of a person’s fitness for trial. It is uncontroversial that Part 4 applies to these proceedings.

7. Part 4 includes the following provisions relevant to the determination of this question, including s 36 which articulates the fitness test:

36 Fitness Test

(1)    For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—

(a)  understand the offence the subject of the proceedings,

(b)  plead to the charge,

(c)  exercise the right to challenge jurors,

(d)  understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

(e)  follow the course of the proceedings so as to understand what is going on in a general sense,

(f)  understand the substantial effect of any evidence given against the person,

(g)  make a defence or answer to the charge,

(h)  instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,

(i)  decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

(2)    This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.

37   When question of unfitness may be raised

(1)    The question of a defendant’s unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence.

(2)    The question of a defendant’s unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings.

38   Question of unfitness to be determined on balance of probabilities 

The question of a defendant’s unfitness to be tried for an offence is to be determined on the balance of probabilities.

39   Court and other persons may raise question of unfitness 

The court, the defendant or the prosecutor may raise the question of a defendant’s unfitness to be tried for an offence.

44   Inquiry procedures

(1)    The question of a defendant’s unfitness to be tried for an offence is to be determined by the judge alone.

(2)    At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows.

(3)    An inquiry is not to be conducted in an adversarial manner.

(4)    The onus of proof of the question of a defendant’s unfitness to be tried for an offence does not rest on any particular party to the proceedings.

(5)    In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following—

(a)  whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial,

(b)  the likely length and complexity of the trial,

(c)  whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.

(6)    A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.

8. Mental Health Impairment and Cognitive Impairment are defined:

4   Mental health impairment 

(1)    For the purposes of this Act, a “person has a mental health impairment” if—

(a)  the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b)  the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c)  the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2)    A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a)  an anxiety disorder,

(b)  an affective disorder, including clinical depression and bipolar disorder,

(c)  a psychotic disorder,

(d)  a substance induced mental disorder that is not temporary.

(3)    A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—

(a)  the temporary effect of ingesting a substance, or

(b)  a substance use disorder.

5   Cognitive impairment

(1)    For the purposes of this Act, a “person has a cognitive impairment” if—

(a)  the person has an ongoing impairment in adaptive functioning, and

(b)  the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c)  the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2)    A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—

(a)  intellectual disability,

(b)  borderline intellectual functioning,

(c)  dementia,

(d)  an acquired brain injury,

(e)  drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f)  autism spectrum disorder.

9. The scope of the matters which might render a person unfit for trial are not limited to those which are specifically included in these definitions. S 36(1) of the Act provides that a person is taken to be unfit to be tried because the person cannot do one more of the things set forth in the paragraphs incorporated in s 36(1) because they have a mental health impairment, or a cognitive impairment, or both, or cannot do so for another reason.

10. The provision embraces and builds upon the principles found in Kesavarajah v The Queen [1994] HCA 41 approving the judgement of Smith J in Reg. v. Presser (3) (1958) VR 45. These authorities remain relevant to the assessment of a person’s fitness.

11. The essence of the asserted unfitness is the accused’s schizophrenia with which two eminent psychiatrists diagnosed him. The parties required neither for cross examination and do not challenge their expert opinions nor the findings upon clinical assessment from which they formed their opinions.

12. Both agree that the accused is unfit for trial. One takes the view that he is not likely to become fit and ought to be taken to the next stage in the proceedings, whereas the other expresses the view that to do so is premature until the fitness issue is determined.

Dr Adam Martin, Forensic Psychiatrist

13. The Director of Public Prosecutions retained Dr Martin. His report of 15 May 2024 followed his clinical assessment on 29 April 2024 over 30 minutes by way of audio-visual link from Long Bay Correctional Centre:

14. In interview by audio visual facilities the accused was unreliable historian He did not speak but nodded and shook his head in response to questions. He was dishevelled, preoccupied, and perplexed. Subsequent responses lacked coherence and logic. He gave a history of ten to 20 mental health admissions.

15. Dr Martin had the report of Dr Furst of 21 December 2023, the Crown Case Statement, and antecedent record. He had records from prior admissions for mental health care.

16. He diagnosed chronic schizophrenia. The accused is severely mentally ill requiring treatment in an appropriately secure setting such as the Forensic Hospital, Malabar.

17. Hs is unfit for trial, but at paragraph 22 Dr Martin wrote (my emphasis),

…, consideration of mental health impairment defence is premature in my view, given that fitness issues have not been resolved. Hypothetically if it were to be assumed that he had engaged in the manner alleged, then it is likely that the mental health impairment defence could be successfully argued. The allegations themselves are entirely consistent with a person acting while psychotic and where they would have been unable to reason with moderate composure about whether the acts were wrong.

Dr Richard Furst, Forensic Psychiatrist

18. The accused’s solicitors retained Dr Furst. He provided reports on 21 December 2023 and 26 July 2024. These followed a fifteen-minute assessment by audio visual link on 4 December 2023 which the accused terminated prematurely, and a further assessment by the same medium on 1 July 2024.

19. Dr Furst had 18 items of information source including the statements assembled during the investigation of this event, and the results of assessments made of the accused in recent years.

20. Upon clinical assessment Dr Furst diagnosed treatment resistant schizophrenia.

21. He is unfit for trial.

22. Dr Furst wrote, at page six,

He most likely stabbed the furniture delivery worker in response to psychotic phenomena, as there is no other plausible explanation for his actions.

23. At page seven he wrote that it is highly likely that the accused has available a defence of not guilty by reason of mental health impairment and/or cognitive impairment as provided in s 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

24. His response to the question whether the accused was unfit included (my emphasis):

I am unable to determine whether or not it is likely that Mr Lipohar will be come fit to be tried with the next 12 months, but I note from the available medical files that he has improved in the past when treated with Clozapine. Therefore, it would be a reasonable expectation that Mr Lipohar will improve sufficiently over the 12 months ahead such that he may well become fit to be tried. He should be reassessed in approximately 6 months from now, around June 2024, with respect to his fitness to be tried.

25. His further report of 26 July 2024 after his further assessment on 1 July 2024, responding to the report from Dr Martin, notes the extent of their concurrence. He too described the accused’s illness as treatment resistant schizophrenia such that the matter should proceed to a special hearing. He wrote at page 2,

There is now no possibility of him becoming fit to be tried in the future and no reason to deliberate further, …

Consideration

26. The accused is unfit for trial suffering from schizophrenia of such moment that he could not participate in the conduct of these proceedings, including in the preparation phase when he must be capable of instructing his solicitor and counsel after attending to their opinions and advice. The circumstances of the offence, and the clinical assessments by Dr Martin and Dr Furst lead to no other conclusion.

27. Dr .Furst is of the opinion that the accused will not become fit within the next twelve months. He offers the opinion that the accused was unable to reason about the wrongfulness of his conduct at the time of the offence, and therefore has available to him the defence provided in s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which provides,

28   Defence of mental health impairment or cognitive impairment 

(1)    A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—

(a)  did not know the nature and quality of the act, or

(b)  did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2)    The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3)    Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4)    In this Part, “act” includes—

(a)  an omission, and

(b)  a series of acts or omissions.

28. Dr Furst is of the opinion that the proceedings should proceed to a special hearing without further consideration by the Mental Health Review Tribunal.

29. Dr Martin is of the opinion that it is premature to offer his view upon this until the determination of fitness.

30. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 provides (my emphasis)

47   Finding after inquiry that defendant is unfit to be tried

(1)    If a defendant is found unfit to be tried for an offence following an inquiry, the court must also determine whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness, the defendant—

(a)  may become fit to be tried for the offence, or

(b)  will not become fit to be tried for the offence.

(2)    The court may do one or more of the following after a finding that a defendant is unfit to be tried for an offence—

(a)  make an order discharging a jury constituted for the purpose of the proceedings,

(b)  adjourn the proceedings,

(c)  grant the defendant bail in accordance with the Bail Act 2013,

(d)  make an order remanding the defendant in custody,

(e)  make other orders that the court thinks appropriate.

48   Finding after inquiry that defendant will not become fit to be tried within 12 months 

(1)    If the court determines that a defendant will not, during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, become fit to be tried for the offence, the defendant is to be dealt with under Division 3.

(2)    This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence.

31. Division 3 Part of the Act provides for Special Hearings, and includes (my emphasis):

55   When special hearings are held

(1)    A court must hold a special hearing as soon as practicable after the court or the Tribunal determines that a defendant will not, during the period of 12 months after a finding that the person is unfit to be tried for an offence, become fit to be tried for the offence.

(2)    This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence.

Note— This does not prevent the admission of the defendant as a voluntary or an involuntary patient under the Mental Health Act 2007.

59   Verdicts at special hearings 

(1)    The verdicts available at a special hearing include the following—

(a)  not guilty of the offence charged,

(b)  a special verdict of act proven but not criminally responsible,

(c)  that on the limited evidence available, the defendant committed the offence charged,

(d)  that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.

(2)    A judge who determines a special hearing must include in the determination the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) A special verdict of act proven but not criminally responsible may only be entered under this section if the judge is satisfied that the requirements of section 28(1) and (2) are met.

32. S 53 of the Act provides:

53   Advice as to whether further proceedings are to be taken 

(1)    This section applies if—

(a)  the court determines that a defendant will not, during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, become fit to be tried for an offence, or

(b)  the Tribunal determines that a defendant has not become fit to be tried for an offence and will not become fit to be tried for an offence during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, or

(c)  the Tribunal determines that a defendant or a forensic patient has become fit to be tried for an offence after a finding by a court that the person is unfit to be tried for an offence or a special hearing has been held for an offence.

(2)    The court must obtain advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence.

(3)    The court must order the release of the defendant if the Director of Public Prosecutions advises that further proceedings will not be taken by the Director in respect of the offence.

Note— This does not prevent the admission of the defendant as a voluntary or an involuntary patient under the Mental Health Act 2007.

Decision

33. I find upon the balance of probabilities that the accused is unfit for trial upon consideration of the criteria set forth in s 36(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

34. Specifically, the accused suffers a mental health impairment arising from schizophrenia and is thereby unable:

1. To adequately understand the offences the subject of the proceedings,

1. Plead to the charges,

2. With the assistance of his lawyers, to  exercise the right to challenge jurors,

3. To  understand generally the nature of the proceedings as an inquiry into whether he committed the offences with which he is charged,

4. To follow the course of the proceedings so as to understand what is going on in a general sense,

5. To understand the substantial effect of any evidence given against him,

6. To make a defence or answer to the charges,

7. To instruct his legal representative so as to mount a defence and provide his version of the facts to his representative and to the court if necessary,

8. To decide what defence he will rely on and make that decision known to his and the court.

35. I find upon the balance of probabilities that the accused is unfit and will not become fit for his trial within the twelve months hereafter. Accordingly, the Crown is to seek instructions from the Director of Public Prosecutions in accordance with s 53 of the Act, whereupon, if the proceeding continue, as required by s 59 a special hearing must follow as soon as practicable.

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Amendments

28 August 2024 - The Judgment was amended to include references to the requirement of a special hearing with relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Decision last updated: 28 August 2024