R v Rahimi - [2021] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v RAHIMI
Criminal Trial by Judge Alone
[2021] SASC 141
Reasons for the Orders of the Honourable Justice Bampton
2 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with murder — investigation into mental fitness to stand trial ordered pursuant to s 269J of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) — defendant meets criteria prescribed by s 269H(a) and (b) of the Act — counsel for the defendant in the exercise of an independent discretion pursuant to s 269W of the Act elected to have an investigation under Part 8A of the Act dealt with by way of a Judge sitting alone — Court determined to proceed first with trial of mental fitness to stand trial pursuant to s 269MA of the Act — the Director of Public Prosecutions conceded defendant is not fit to stand trial — pursuant to s 269MA(5)(a) of the Act, an investigation into the defendant’s fitness to stand trial dispensed with — pursuant to s 269MA(5)(b) of the Act, a finding that the defendant is mentally unfit to stand trial recorded — defendant’s counsel pursuant to s 269W of the Act conceded the evidence establishes the objective elements of the offence of murder — pursuant to s 269MB(2) of the Act, a finding that the objective elements of the offence of murder are established beyond reasonable doubt recorded — defendant declared liable to supervision under Division 4 Subdivision 2 of Part 8A the Act — defendant committed to custody pursuant to s 269X(2)(b) of the Act.
HELD:
1.Pursuant to s 269MA(5)(a) of the Act, an investigation into the defendant’s fitness to stand trial dispensed with and pursuant to s 269MA(5)(b) of the Act a finding that the defendant is mentally unfit to stand trial recorded.
2.Pursuant to s 269MB(2) of the Act, a finding that the objective elements of the offence of murder are established recorded.
3.The defendant declared liable to supervision under Division 4 Subdivision (2) of the Act.
4.Pursuant to s 269X(2)(b) of the Act, the defendant committed to custody.

Criminal Law Consolidation Act 1935 (SA) Part 8A, ss 269J, 269I, 269H, 269W, 269B, 269MA, 269MB, 269X, referred to.

R v RAHIMI
[2021] SASC 141
Criminal: Trial by Judge Alone

BAMPTON J: Maiwand Rahimi is charged with the murder of Mohammad Ibrahim Hotak, alleged to have been committed in a parking bay on the Eyre Highway, Nullarbor on 17 December 2018.
The forensic psychiatrist Dr William Brereton assessed Mr Rahimi at the request of Mr Rahimi’s solicitors in November 2020. In his report following that assessment dated 15 December 2020, Dr Brereton concluded that Mr Rahimi suffers from a psychotic illness. Dr Brereton considered his underlying diagnosis is either one of a delusional disorder or schizophrenia and favoured a diagnosis of a delusional disorder. At the time of his assessment, Dr Brereton was of the opinion Mr Rahimi was fit to stand trial and he supported a mental incompetence defence.
Investigation of Mr Rahimi’s mental fitness to stand trial pursuant to s 269J
Section 269I of the Act provides that a person’s mental fitness to stand trial is to be presumed unless it is established on an investigation under Part 8A, Division 3, that the person is mentally unfit to stand trial.
Section 269H prescribes:
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.
On 11 March 2021, I ordered an investigation of Mr Rahimi’s mental fitness to stand trial pursuant to s 269J of the Act. A report pursuant to s 269W dated 1 July 2021 was provided by the forensic psychiatrist Dr Narayan Nambiar following his examination and assessment of Mr Rahimi.
Dr Nambiar’s report
Dr Nambiar, in his report dated 1 July 2021, concluded that Mr Rahimi suffers schizophrenia and demonstrates delusional thinking with some looseness of association, particularly when referring to his delusional thoughts. Dr Nambiar considered there appears to have been a deterioration in functioning over a period of at least four years prior to the killing of Mr Hotak. Dr Nambiar stated that Mr Rahimi has now admitted the killing and provided an elaborate explanation for his actions based on delusional motivations. Dr Nambiar stated that the difficulty would come when Mr Rahimi is required to give rational instructions to his legal advisors and it would appear that any information put to him and provided to him may be interpreted in a delusional way. Dr Nambiar is of the view that there may be times during the proceedings when Mr Rahimi’s delusional thinking may impact on his ability to consider the evidence and participate in a rational way during the course of the proceedings. It is Dr Nambiar’s opinion that Mr Rahimi is not fit to stand trial and it is highly likely that, even with treatment, he will not regain fitness within a 12-month period. Having regard to Dr Nambiar’s opinion, Mr Rahimi meets the criteria prescribed by s 269H(a) of the Act.
Dr Brereton’s report
Following receipt of Dr Nambiar’s report, I sought an addendum report from Dr Brereton addressing Dr Nambiar’s opinions. Dr Brereton’s addendum report is dated 28 September 2021.
Following further assessment of Mr Rahimi and having regard to Dr Nambiar’s opinion, Dr Brereton reported that he has revised his opinion and considers Mr Rahimi has a diagnosis of schizophrenia rather than delusional disorder. Dr Brereton stated that, when he first assessed Mr Rahimi, he had concerns about Mr Rahimi’s fitness to stand trial but concluded that he was fit. Dr Brereton is now of the opinion that Mr Rahimi’s “delusional thinking has been revealed to be even more extensive, probably the result of a deterioration in mental state and greater disclosure”. Dr Brereton stated that, at the time of his most recent interview with Mr Rahimi, Mr Rahimi continued to express delusional ideas to an extent that Dr Brereton was concerned that whilst Mr Rahimi “understands the charges against him, he is likely to fail to respond rationally to the charges and fail to give rational instruction regarding the exercise of his procedural rights”. Accordingly, Dr Brereton is now of the opinion Mr Rahimi is not fit to stand trial.
Dr Brereton stated the question of whether there is a reasonable prospect of Mr Rahimi regaining the necessary mental capacity to be fit to stand trial over the next 12 months is not clear. Dr Brereton stated Mr Rahimi’s response to antipsychotic medication has been poor and that when Mr Rahimi was interviewed by Dr Nambiar in mid-2021 he remained delusional and insightless into his mental illness. Further, when seen by a psychiatrist in prison in August 2021, Mr Rahimi continued to deny he has a mental illness and wanted to cease treatment.
Dr Brereton reported that he formed the view when he interviewed Mr Rahimi on 1 September 2021 the antipsychotic medication appeared at last to be having an effect. Dr Brereton concluded there is a prospect Mr Rahimi might regain the necessary mental capacity over the next 12 months. However, Mr Rahimi’s response to treatment has been so slow and his improvement so light that Dr Brereton does not believe there is a reasonable prospect Mr Rahimi will regain the necessary mental capacity.
It is Dr Brereton’s opinion that Mr Rahimi was psychotic at the time of the alleged offence and therefore mentally impaired. Dr Brereton considers as a result of Mr Rahimi’s mental impairment he was not mentally competent to commit the offence. He is of the view Mr Rahimi’s psychosis was the result of untreated schizophrenia. Dr Brereton concluded Mr Rahimi remains psychotic with a number of delusions that could affect Mr Rahimi’s capacity to respond rationally to the charge and give rational instructions.
Accordingly, Dr Brereton supports a finding that Mr Rahimi is mentally unfit pursuant to s 269H(a) and s 269H(b) of the Act.
Trial of defendant’s mental fitness to stand trial
Defence counsel, in the exercise of an independent discretion prescribed by s 269W[1] of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), elected, pursuant to s 269B of the Act, to have an investigation under Part 8A of the Act dealt with by a Judge sitting alone.
[1] Section 269W of the CLCA provides:
269W—Counsel to have independent discretion
(1) If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.
(2) If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant's best interests.
Accordingly, on 2 December 2021, I decided to proceed first with the trial of Mr Rahimi’s mental fitness to stand trial pursuant to s 269MA of the Act.
Counsel for the Director of Public Prosecutions (“the Director”) conceded that Mr Rahimi is not fit to stand trial. The evidence underpinning that concession is based on the opinion of Dr Nambiar in his report dated 1 July 2021 and the opinion of Dr Brereton in his report dated 28 September 2021.
I accept the opinions of Dr Brereton and Dr Nambiar and am satisfied Mr Rahimi’s mental processes are so disordered or impaired that he is, pursuant to s 269H(a) of the Act, unable to understand or respond rationally to the charge or the allegations on which the charge is based, and, pursuant to s 269H(b), unable to exercise his procedural rights.
As the Director and defence counsel agreed, pursuant to s 269MA(5)(a) of the Act, I dispensed with an investigation into Mr Rahimi’s fitness to stand trial. Pursuant to s 269MA(5)(b) of the Act, I recorded a finding that Mr Rahimi is mentally unfit to stand trial.
Trial of objective elements of offence
Having recorded the finding that Mr Rahimi is mentally unfit to stand trial, I heard evidence and representations by the Director and defence counsel relevant to the question of whether a finding should be recorded that the objective elements of the offence of murder are established. The Director and defence counsel agreed the factual basis of the objective elements for the offence of murder are as follows.
Mr Rahimi and Mr Hotak had worked as interpreters for the Australian Defence Force and the United States Forces in Afghanistan during the war in Afghanistan. They were friends who had migrated to Australia from Afghanistan in 2014. They remained friends until about a year and half before the killing when their relationship became strained.
Mr Hotak resided with his family in South Australia. Mr Rahimi had resided with his family in South Australia before taking his wife and children back to Afghanistan in September 2018. Mr Rahimi moved to Victoria in December 2018.
On 7 December 2018, Mr Rahimi hired a Holden Trax vehicle and commenced work as an Uber driver. Mr Rahimi drove from Melbourne to Adelaide on 16 December 2018 without telling friends he was travelling to Adelaide.
Mr Rahimi had made a series of phone calls to Mr Hotak from 5.33 am and made contact at 2.40 pm on 16 December 2018. At 2.44 pm on 16 December 2018, Mr Rahimi stopped outside Mr Hotak’s home and Mr Hotak joined him in the Holden Trax, taking only his phone, wallet, and leather jacket with him.
Several hours later, Mr Hotak contacted his wife telling her he was going to Perth with Mr Rahimi and to reschedule a medical appointment. During the journey, Mr Hotak was phoned by a friend. He told the friend that Mr Rahimi just turned up at his home, was very insistent that he go with him and “they were travelling together to Perth to look for work and will be flying back in 3 days”.
In the early hours of 17 December 2018, Mr Rahimi killed Mr Hotak by inflicting multiple penetrating injuries to Mr Hotak’s head with a tomahawk in the parking bay on the Eyre Highway, Nullarbor. The initial attack occurred at the back of the Holden Trax where it was parked in the parking bay. A subsequent attack occurred where Mr Hotak’s body was located 30 metres away from where the Holden Trax had parked.
Mr Rahimi continued driving west on the Eyre Highway for approximately eight kilometres before turning around and travelling east. The Holden Trax ran out of fuel approximately 30 kilometres west of Nundroo.
Mr Rahimi took a series of selfie photographs holding a bloodstained tomahawk which he sent to family members in Afghanistan along with a series of messages stating he killed Mr Hotak because of “gossip” and then deleted.
Mr Rahimi was found walking west along the highway towards Yalata when a civilian took him to the Yalata police station.
Police located the Holden Trax containing bloodstained clothing, and a tomahawk on the side of Eyre Highway. Mr Rahimi’s passport and visa papers were in the glovebox of the Holden Trax.
Mr Rahimi told police he had a fight with Mr Hotak and that Mr Hotak walked off. During the record of interview, Mr Rahimi sang a song that has since been translated into English from Pashto: “Do not gossip behind someone because this how your day will turn out. You had made fake stories behind me and your story became a reality”.
Mr Rahimi was arrested and charged with the murder of Mr Hotak.
The forensic pathologist, Dr Karen Heath, performed the post-mortem examination of Mr Hotak’s body on 19 December 2018 and found:
(a)11 chop style penetrating injuries to Mr Hotak’s head, consistent with the use of an axe or machete type weapon;
(b)the mechanism of death was the combined effects of blood loss and head injury; and
(c)the presence of depressed comminuted fractures of the skull indicated the use of severe force.
The forensic neuropathologist Prof Peter Blumberg examined Mr Hotak’s brain and found that there were:
(a)severe lacerations with loss of cerebral tissue involving the left anterolateral frontal lobe associated with contusion; and
(b)severe laceration and contusion of the left posterior temporal parietal occipital lobe.
The injuries described by Prof Blumberg and Dr Heath indicate Mr Hotak was struck 11 times with an axe or machete type weapon.
Blood pattern analysis of clothing worn by Mr Rahimi undertaken by Forensic Science SA indicates Mr Rahimi was in a kneeling position over Mr Hotak at the time of the attack.
Defence counsel, pursuant to s 269W of the Act, conceded the objective elements of the offence of murder are established.
Pursuant to s 269MB(2) of the Act, having heard the evidence and representations put to the Court by the Director and defence counsel, I am satisfied beyond reasonable doubt that the objective elements of the offence of murder are established. Accordingly, I recorded a finding that the objective elements of the offence of murder are established beyond reasonable doubt and I declared Mr Rahimi liable to supervision under Division 4 Subdivision 2 of Part 8A the Act.
I committed Mr Rahimi to custody pursuant to s 269X(2)(b) of the Act.
I adjourned consideration of the disposition of Mr Rahimi under Division 4 Subdivision 2 of Part 8A the Act to 22 March 2022, allowing time for the provision of reports pursuant to s 269Q, s 269R, and s 269T(1) of the Act.