R v Muciello

[2019] NSWDC 443

District Court

New South Wales

Medium Neutral Citation:	R v Muciello [2019] NSWDC 443
Hearing dates:	1 August 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	The accused is found not fit to be tried and is referred to the Mental Health Review Tribunal
Catchwords:	CRIMINAL LAW – Fitness hearing – Aggravated assault with intent to rob – Schizophrenic illness – Auditory hallucination – Delusion – Poly substance abuse – Vulnerable person – Anti social traits – Non compliant with treatment.
Legislation Cited:	Mental Health Criminal Proceedings Act. Mental Health (Forensic Provisions) Act
Cases Cited:	Kesavarajah v R [1994] HCA 41 R v Presser [1958] VT 45
Category:	Principal judgment
Parties:	The Crown Martin Muciello
Representation:	Counsel: Ms P David – The accused   Solicitors: Director of Public Prosecutions (Crown)
File Number(s):	2018/194430

Judgment

1. HIS HONOUR: These are extempore reasons given in relation to an inquiry into the fitness to plead of Martin Muciello in relation to criminal proceedings generally and in particular an offence of aggravated assault with intent to rob currently preferred against him.

2. I understand that at Mr Muciello’s arraignment at this Court on 12 April 2019 his legal representatives formally raised an issue in relation to his fitness to plead. Consonant with the requirement of s 10 of the Mental Health (Forensic Provisions) Act the Court has an obligation as soon as practicable after the issue of fitness is raised to conduct an inquiry to determine whether Mr Muciello is unfit to be tried.

3. The matter was listed for such an inquiry today.

4. The hearing proceeded consistent with principle and authority in a non‑adversarial fashion.

5. By consent I received a bundle of material tendered by the Crown which included psychiatric reports by both Dr Jeremy O’Dea dated 4 April 2019 who prepared a report on behalf of the Crown and Dr Andrew Ellis dated 4 January 2019 who prepared that report on behalf of Mr Muciello’s advisors.

6. Additionally, I was provided with an indictment, Crown case statement, a copy of Mr Muciello’s current bail conditions, his criminal history, and custodial record.

7. I had the benefit of considering careful written submissions prepared by Mr Borosh, solicitor advocate at the ODPP, supplemented by oral submissions by Ms David of counsel who appears in the interest of Mr Muciello.

8. With the consent of Mr Borosh I also considered some material from the bar table over and above legal submissions provided by Ms David in relation to the difficulties that she and her instructing solicitor had encountered and continue to encounter in terms of being able to take instructions from Mr Muciello that might permit, possibly, employment of a wider range of defences than is currently available given the way in which Mr Muciello is limited in his interpretation of the material the Crown relied upon against him.

9. The law in relation to issues of fitness of an accused to plead is set out in Kesavarajah v R [1994] HCA 41 and adopts what is known as the Presser test (R v Presser [1958] VT 45) or Presser criteria. These include the ability of the person whose fitness is being assayed to:

“(1) to understand the nature of the charge;

(2) to plead to the charge and to exercise the right of challenge;

(3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged;

(4) to follow the course of the proceedings;

(5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and

(6) to make a defence or answer the charge.”

10. Here the Court’s ability to properly determine the inquiry was made easier because first, there is a broad concordance in the expert psychiatric evidence and second, unsurprisingly in that event, there was a joint position at the bar table that it was appropriate that I find Mr Muciello unfit to be tried.

11. Both the expert opinions which I will come to and the submissions of the parties admitted of the possibility that Mr Muciello may become fit subject to treatment within the next 12 months but given the structure of the legislation an assessment of that task will fall in due course to the Mental Health Review Tribunal.

12. As to Mr Muciello’s background and the assessment of him both of the expert reports provide summaries of Mr Muciello’s criminal history that accord with the other material tendered in the fitness hearing. Relevantly his adult criminal history began at the time that he was 21 years of age in 2001 and he has had a variety of convictions for assaults, matters of dishonesty, criminal damage and the like.

13. A helpful summary of Mr Muciello’s psychiatric history is summarised under the heading “Psychiatric History” in the whole of p 4 of Dr Ellis’ report.

14. It largely coincides with a similar but more contracted history set out in Dr O’Dea’s assessment. In short Mr Muciello has in the past been admitted to psychiatric units at St George Hospital, Port Macquarie Hospital and Coffs Harbour Hospital. He has variously been treated both with antipsychotic medications, including Olanzapine and Quetiapine and has been treated with the antidepressant Mirtazapine.

15. His admission to St George Hospital was first in 2008 with symptoms of auditory hallucinations and delusions. Then he was later admitted for a month in 2016 to St George Hospital, having been found by police wandering the streets, expressing suicidal thoughts. He was admitted to Port Macquarie Hospital in 2017 following non‑compliance with oral antipsychotic medication and remained admitted for three months.

16. He presented to that hospital with auditory hallucinations and delusions about his mother being an imposter, relevantly see para 49 of Dr O’Dea’s report. Mr Muciello was ultimately dealt with in relation to an offence committed before his admission to Port Macquarie Hospital pursuant to the provisions of s 32 of the Mental Health Criminal Proceedings Act. He was transferred from Port Macquarie to the Coffs Harbour Hospital on 18 April 2017 and during his rehabilitation he was assessed as not being competent to manage his own finances.

17. As to Mr Muciello’s diagnosis at the time of his assessment by the experts, Dr O’Dea at para 69 of his report diagnosed Mr Muciello as suffering from a schizophrenic illness characterised by a history of auditory hallucinations, delusions, other perceptual disturbances, significant mood disturbances, significant behavioural disturbances and problems with insight and judgment.

18. Dr O’Dea found those matters complicated by a history of poly substance use disorder, repeated offending behaviour, what he found to be a likely vulnerable personality with antisocial traits and past non‑compliance with treatment. An additional complicating factor in relation to Mr Muciello’s position is noted by Dr O’Dea at para 17 where he notes a history of childhood head injury with “neuro radiological findings on MRI scans”.

19. Dr O'Dea observed Mr Muciello to have documented and clinically evident neuro cognitive deficits which complicate the clinical picture. Dr Ellis arrived at broadly similar findings. At p 8 he found that Mr Muciello “would meet diagnostic criteria for schizophrenia, he presents with a ten year history of delusions, hallucinations and gradual social decline”. Additionally at p 9 Dr Ellis said that Mr Muciello “presents with a mild neuro cognitive disorder with mild deficits in memory and in particular executive function”.

20. The views of both Dr O'Dea and Dr Ellis were to the effect that Mr Muciello was not malingering in terms of his presentation or the history given. The way that Dr Ellis expressed it at para 10 is “The deficits of cognition and schizophrenia symptoms are not under his voluntary control”. As to both of the experts, apart from reviewing the documentation, they undertook a mental state examination of Mr Muciello in arriving at the diagnoses referred to above.

21. As to the psychiatric opinions about the issue of fitness to be tried, Dr O'Dea expressed himself in more definitive terms than did Dr Ellis. Dr O'Dea found that Mr Muciello did not convey a good understanding to him of the roles and responsibilities of the various court officials. He considered that his current level of cognitive function, including his current level of insight and judgment, “may adversely affect his ability to decide what defence he will rely on and adequate and appropriately understand the substantial effect of any evidence that may be given against him”.

22. In circumstances in which Dr O'Dea determined that at the point of his assessment which was in March 2019 Mr Muciello’s schizophrenic illness was currently not under adequate control.

23. He opined that the potential stress of a trial in those circumstances may run the risk of exacerbating that schizophrenic illness further. Although Dr O’Dea indicated that he would be guided by Mr Muciello’s legal representatives regarding any concerns they may have regarding his ability to instruct, he took the view after taking into account the Presser criteria and the case of Kesavarajah that on balance it could be argued that Mr Muciello would not be currently fit from a psychiatric perspective to be tried.

24. Given what Dr O’Dea said it was the Crown’s position to consent to me receiving from Ms David an indication that there had been significant difficulties in obtaining instructions from Mr Muciello and being able to properly advise him which in turn gave rise to the issue of fitness being brought to the Court’s attention and in summary that those problems persist. Although she as a very experienced counsel, albeit a lay person, Ms David used the expression that Mr Muciello continued to present in legal conferences in a “florid” fashion.

25. There is nothing to gainsay the opinion of Dr O’Dea in Dr Ellis’ report although it was prepared earlier in time obviously. As I have said although the doctor does not give an affirmative opinion per se as to the issue of fitness, at para 9 Dr Ellis says, “I understand that he has displayed difficulty in giving instructions with varying accounts of the material time and a lack of engagement in discussion about the brief of evidence” and then opines, “It is likely that a Court could find him to be unfit to be tried at this point despite his prior familiarity with Courts”.

26. Dr Ellis takes the view that although he considered that Mr Muciello showed a reasonable understanding of the charge faced and general courtroom procedures and pleas available, that he has difficulty in instructing his legal advisers.

“This difficulty stems from his understanding of the evidence to be used against him. He has a concrete and rigid understanding of the evidence that is to be brought against him. This may be due to his cognitive deficits and the general process of denial that is common in persons with schizophrenia who consistently deny reality in the environment.”

27. A little later Dr Ellis opined,

“Therefore he does not have the ability to understand the substantial effect of evidence against him which leads to difficulty in giving instruction and limits what defence he may rely upon. At this point there is sufficient evidence of cognitive problems and attenuated partly treated symptoms of schizophrenia to explain his impaired understanding rather than mere stubbornness.”

28. As I have already indicated it was Dr Ellis’ view that the deficits of cognition and schizophrenia symptoms are not under Mr Muciello’s voluntary control. Given the position of the parties and the weight of the evidence I take the view that Mr Muciello is not fit to be tried and I so find. It is accepted both by the legal representatives and by the experts that there may well be some amelioration of Mr Muciello’s mental state as his schizophrenia becomes under better control. It is also accepted by both of the experts that the neurocognitive issue makes a recovery to fitness less likely than it would be for somebody who did not have that additional clinical issue.

29. Relevantly in terms of the prospects of recovery within the 12 month period, at para 77 Dr O’Dea observes that with more assertive and successful treatment his position may improve and suggests consideration of a trial of Clozapine, being an antipsychotic medication indicated for patients with treatment-resistant schizophrenia (which seems to be the position here). That finding made I make a formal order in accordance with s 14 of the Mental Health (Forensic Provisions) Act referring the matter to the Mental Health Review Tribunal.

30. I direct the Court registry provide to the Tribunal a copy of this finding and the entirety of exhibit A and MFI 1 which are the very helpful written submissions of the Crown which Ms David adopted. Additionally, by consent of the parties, I propose to vary the bail currently applying in the following way.

31. The current obligation to report daily to the officer-in-charge of police at Riverwood police station between 5pm and 7pm is varied so that the obligation is now to report to the officer-in-charge at Riverwood police station each Monday, Wednesday and Friday between the hours of 7.30am and 6.30pm. The curfew is to remain in place but instead of more absolute terms the curfew is now not to be absent from premises at an address known to the Court between the hours of 7pm and 7am unless in the company of his mother.

32. I add an additional condition that he accept directions from the Mental Health Review Tribunal.

**********

Decision last updated: 29 August 2019