R v Phomaranuphong

[2000] NSWSC 1136

CITATION:	R v PHOMARANUPHONG [2000] NSWSC 1136
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 70062/00
HEARING DATE(S):	01/12/2000
JUDGMENT DATE:	1 December 2000
PARTIES :	REGINA v Cherdchai PHOMARANUPHONG
JUDGMENT OF:	Barr J at 1

COUNSEL :	Crown: PS Dare Accused: BT Stratton QC
SOLICITORS:	Crown: SE O'Connor Accused: Nyman Gibson & Company
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990
CASES CITED:	R v Pritchard (1836) 7 Car & P 304 R v Presser [1958] VR 45
DECISION:	See para 19

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Friday, 1 December 2000

70062/00 - REGINA v Cherdchai PHOMARANUPHONG

JUDGMENT
1   HIS HONOUR: Cherdchai Phomaranuphong has been charged with the murder on 24 December 1999 at Ultimo of Vachiraporn Punpanishkul. The Crown case is that the accused and Miss Punpanishkul were in a relationship, that she wanted to bring it to an end and that he, unable to face the prospect of ending the relationship, murdered her by stabbing her.

2   Before the accused’s trial was due to begin, the question of his unfitness to be tried was raised and the Solicitor General, by virtue of the power conferred in him as delegate of the Attorney General, determined on 8 November 2000 that an enquiry should be held whether the accused is fit or unfit to be tried for the murder.

3 The legislation provides for the trial of such issues by jury but the Mental Health (Criminal Procedure) Act 1990 provides also for the accused to elect for trial by judge alone. That is what the accused has done and the Crown has consented to trial by judge alone. Accordingly, the issue will be tried by myself without a jury. I am satisfied from the material tendered, particularly the affidavit of Trevor Alan William Nyman sworn 21 November 2000, that the accused made an informed election and had the capacity so to elect.

4   This matter has been able to be dealt with in a shortened form because the evidence about the issue to be tried is all one way.

5   In order that an accused person may receive a fair trial, there are certain minimum standards with which he must comply. Those standards are based on a well known explanation given by Alderson B in R v Pritchard (1836) 7 Car. & P. at 304 as elaborated by Smith J in R v Presser [1958] VR 45. They require the ability to understand the nature of the charge, to plead to the charge and to exercise the right of challenge of jurors, to understand the nature of the proceedings, namely, that it is an enquiry as to whether the accused committed the offence charged, to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution and to make a defence or answer to the charge.

6   The accused was arrested on 24 December 1999, the day of the alleged murder, and was taken into custody. He has remained in custody ever since. It was not for some considerable time that those who had the care of him began to notice that he was exhibiting symptoms of mental illness. He was admitted to the Long Bay prison hospital on 28 December 1999 but that was apparently because he was suffering some stabbing injuries which the Crown will assert took place at the time of his attack on the deceased. He expressed a wish to die. His sleep was disturbed and he was socially withdrawn. In January 2000 he was saying that he was hearing a voice but would not elaborate. He was treated with anti-psychotic medication and was discharged soon afterwards.

7   In March he was re-admitted to the Long Bay prison hospital when it was realised that he had active suicidal intent. On that occasion he began to speak in a bizarre manner. He was treated with antidepressant medication and staff began to consider the possibility of a more severe psychotic disturbance. He was commenced on anti-psychotic medication for the first time in May. By that stage he was speaking repeatedly about various perceptual disturbances including a black power giving him the strength to open his eyes.

8   On 16 May he was examined by a transcultural psychiatric nurse, who observed that the content of his speech was confused and disjointed. He reported visual and auditory hallucinations, including what he called a “black power spell”. He claimed to undertake interstellar travel at night, therefore not to need sleep. He developed a range of persecutory delusions.

9   The accused has been seen by Dr Yolande Lucire on the instructions of his own solicitor and by Dr Robert Lewin on behalf of the Crown. Both are eminent consulting psychiatrists. Both examined him about his state of mind as relevant to the forthcoming trial generally and in regard to the standards required and summarised in R v Presser.

10   Dr Lewin examined the accused on 26 October and again on 9 November. On the first occasion the accused was drowsy as a result of a drug that had been administered to him. The form of his speech was disorganised; there was marked discursiveness and at times he was almost incoherent. There was a marked degree of thought disorder. He described persecutory, auditory and visual hallucinations. He described a range of bizarre delusion experience including the experience of special powers and passivity phenomena.

11   When Dr Lewin reviewed the accused two weeks later the sedative effect had resolved but all the clinical features of an acute psychosis continued. Dr Lewin noted florid, bizarre delusional ideas, persecutory delusions and a range of hallucinatory experiences as well as a marked disorganisation in the process of his thought. The re-examination did not cause Dr Lewin to change the conclusions he had reached at the time of the first assessment, namely, that the accused was unfit to be tried.

12   Dr Lewin is of the opinion that the accused is acutely psychotic, that his condition cannot be explained on the basis of acute physical illness and that his illness is probably depressive psychosis.

13   Dr Lucire was present during the first of the interviews that Dr Lewin had with the accused. She had already seen the accused on a previous occasion. Like Dr Lewin, Dr Lucire was of the view that the accused was still actively psychotic. He was gesturing with his hand and said, when asked what he was doing, something about waving away electricity. Dr Lucire formed the view as a result of observing Dr Lewin’s conversation with the accused that he would be unable to communicate with his lawyer. She is of the view that the accused is unable to understand the nature of the charge and is not sure whether he accepts the seriousness of it. His incomprehension is in part based on delusional beliefs about the status quo. He would be unable to communicate his version of events to a solicitor. For the same reasons he would be unable to plead to the charge or to exercise the right of challenge of jurors. He would not be able to follow the proceedings, he would not be able to understand the nature of the proceedings, neither would he be able to understand the substantial effect of any evidence that might be given in support of the prosecution case and he would be unable as a result to make a defence or give answer to the charge.

14   As I have said, both psychiatrists are firmly of the opinion that the accused is unfit to be tried.

15   The scheme of the legislation which covers enquiries of this kind requires the Court when a person is found unfit to be tried to refer that person to the Mental Health Review Tribunal. It also provides for the making of other incidental orders but I think that none arises in the present case.

16   The duty of the Mental Health Review Tribunal when a matter has been referred to it following a finding of unfitness is to review the case of that person and report to the Court in due course. The most important thing that the Tribunal does is to decide whether in its opinion the person will become fit to be tried within twelve months. If that is the ultimate view of the Tribunal, it reports that fact to the Court and a further enquiry is held into the question whether the accused is unfit to be tried and if the result is that he is not unfit, that is fit to be tried, a trial might be expected to follow.

17   If in the view of the Mental Health Review Tribunal, however, the accused is unlikely to be fit to be tried within twelve months, a special hearing may be held. At such a hearing the accused may be acquitted though he may not be convicted. If he is found on the limited evidence available to have committed the offence, then the duty of the Court is to impose a limiting term which is in effect a statement of the sentence it would have imposed if the accused had been convicted of the offence with which he is charged.

18 Those matters must await the future and the only thing that the Court is required now to do is to refer the matter to the Mental Health Review Tribunal to be dealt with in accordance with the provisions of the Mental Health (Criminal Procedure) Act.

19 I find the accused unfit to be tried by reason of mental illness. He is remanded in custody pending a determination by the Mental Health Review Tribunal under s 16 Mental Health (Criminal Procedure) Act.

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Last Modified: 12/07/2000