R v Risi

[2021] NSWSC 769

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Risi [2021] NSWSC 769

Hearing dates:

21 June 2021

Date of orders:

21 June 2021

Decision date:

21 June 2021

Jurisdiction:

Common Law - Criminal

Before:

Beech-Jones J

Decision:

The Court finds that:

(1)   In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the accused Michele Noel Risi is unfit to be tried on the offences the subject of the indictment filed against him in this court.

(2)   Pursuant to section 47(1)(A) of the Mental Health and Cognitive Impairment Provisions Act 2020, on the balance of probabilities during the period of 12 months from today the accused may become fit to be tried for those offences.

The Court orders that:

(1)   The accused be remanded in custody and,

(2)   Pursuant to section 49(1) of the Mental Health and Cognitive Impairment Forensic Provision Act 2020 the accused be referred to the Mental Health Review Tribunal.

Catchwords:

CRIMINAL LAW – fitness to be tried – accused cognitively and mentally impaired – currently unfit to be tried – whether accused will remain unfit or may become fit over ensuing 12 months

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health Forensic Provisions Act 1990 (NSW).

Cases Cited:

R v Presser (1958) VR 45

Category:

Principal judgment

Parties:

Regina (Crown)
Michele Noel Risi (Accused)

Representation:

Counsel:
K McKay SC (Crown)
T Anderson (Accused)

Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2021/96878

EX TEMPORE Judgment

(Revised from transcript)

1. There has been filed in this Court an indictment charging the accused, Michele Noel Risi, with the murder of Shannon Weller between 23 March 2020 and 29 March 2020, and the assault of Allyson Thornton on 23 March 2020 and thereby occasioning to her actual bodily harm.

2. On or about 12 February 2021, the accused appeared before RS Hulme J. As a question was raised concerning his fitness to be tried, the matter was listed for an inquiry into that issue before me today.

3. On the inquiry the accused has been represented by counsel Mr Anderson and the Crown Prosecutor was Mr McKay. They both provided great assistance to the Court.

4. In the end result, there was no real dispute that the accused is presently unfit to stand trial. The only matter of dispute was whether or not he will not or may become fit over the next 12 months. For the reasons that follow, I find that he may become fit.

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

5. On 27 March 2021, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the “Act”) came into force. It was common ground that it applied to this inquiry. It effectively replaced the Mental Health Forensic Provisions Act 1990 (NSW) (the “MHFPA”).

6. As its name implies, the Act addresses and defines the concepts of "mental health impairment" (s 4) and "cognitive impairment" (s 5). The evidence establishes that Mr Risi has both. Part 4 of the Act deals with fitness to stand trial. Division 2 of Part 4 addresses the procedures to be adopted where a question of fitness is raised. Division 3 of Part 4 addresses special hearings for persons who are unfit to be tried.

7. I will not describe the entirety of Division 2. It suffices to state that a question of a person's fitness is to be determined on the balance of probabilities (s 38). Either the Court or any other party may raise an issue as to fitness (s 39), an inquiry is not to be conducted in an adversarial manner (see s 44(3)), and there is no onus of proof in relation to such an inquiry (s 44(4)). In this case, the question of the accused's fitness was raised before he was arraigned. It follows that the Court must hold the inquiry unless it determines otherwise, which it has not (s 40(1)).

8. In relation to the test of unfitness, s 36 of the Act provides as follows:

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.

9. This provision appears to reflect the test stated in R v Presser (1958) VR 45 (“Presser”). In addition, s 44(5) of the Act provides:

44(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.

10. Sections 47 to 53 deal with the consequences of finding that a person is unfit. Of particular present relevance is s 47 which provides:

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.

11. Section 48 provides that, if a finding is made in accordance with s 47(1)(b), then the Court is then to deal with the matter in accordance with Division 3 of Part 4 of the Act concerning special hearings.

12. Section 49(1) provides that if a finding is made in accordance with s 47(1)(a) then the Court must refer the relevant defendant to the Mental Health Review Tribunal "for review". Sections 50 and 51 of the Act deal with that review.

13. In short, the outcome will either be a referral of the accused back to the Court to proceed in accordance with usual trial processes or for the accused to be dealt with by way of special hearing under Division 3.

Charges

14. Consistent with s 44(5) of the Act, it is appropriate to at least briefly note the nature and complexity of the charges against the accused. Included in the material tendered on the inquiry was a Crown Case Statement which, as its name implies, outlines the Crown case.

15. As at March 2020, the accused was 35 years old. It seems that he was at that time effectively homeless. The Crown alleges that, during that month, the accused briefly stayed with different residents of an apartment block in Gladesville. Initially, according to the Crown, he became fixated with one of the female residents, but at some stage he transferred his fixation to another resident, specifically Ms Thornton, the alleged victim of the second count on the indictment.

16. The Crown alleges that, on the morning of 23 March 2020, the accused gained access to Ms Thornton's apartment, being the apartment she shared with her partner, Mr Weller, the alleged victim of the first count on the indictment

17. The Crown alleges that, while they slept, the accused struck Mr Weller over the head with a guitar a number of times. He then struck Ms Thornton as she tried to protect Mr Weller. Sadly, Mr Weller died on 29 March 2020 from brain trauma. Ms Thornton suffered injuries to her leg.

18. The Crown Case Statement outlines the efforts to locate the accused in the days after 23 March. It seems that he was arrested on 29 March 2020.

19. In terms of s 44(5)(b), it is, at this point difficult, to assess the likely length and complexity of the trial. Doing the best I can, it is difficult to see how a trial of this length before a jury would last less than four weeks. In terms of complexity, and assuming that the matter is defended by, inter alia, an invocation of a number of defences which incorporate psychiatric issues, it is clearly possible for the trial to become relatively complex.

20. It is unquestionable that most accused, especially this accused, could not possibly represent themselves in such a trial. That said, it is expected that if there is to be a trial or indeed a special hearing the accused will be represented by an Australian legal practitioner and presumably someone as experienced as Mr Anderson (see s 45(5)(c)).

Background

21. One matter that has caused difficulties for the various psychiatrists and psychologists who have assessed the accused is his inability to provide an accurate personal history. To assist the inquiry an affidavit was read from the accused's mother, Janine Risi.

22. In her affidavit, Ms Risi explains that the accused was born and raised in South Africa. When he was 18 years old, he went to Israel and from there to the United Kingdom. In the meantime, in 2007, the accused's family migrated from South Africa to Australia. In 2009, the accused came to Australia to see them and has remained here since.

23. Ms Risi records an incident when the accused was 2 years old when he nearly drowned in a pool and had to be revived. She said that after that he displayed behavioural problems. She also said he was diagnosed with diabetes when he was 10 and, since that time, he has received daily insulin injections.

24. Of particular relevance to this inquiry is that Ms Risi states that, when the accused was 17 years old he suffered brain damage when he was struck with a bottle on his head. Ms Risi says from that time his behaviour deteriorated even further, with him becoming oppositional and at times angry. Generally, it seems that he has been unemployed for most of his adult life although there was a period of time in which he did some labouring work.

25. In this country, the accused’s criminal history appears to commence in 2011. From that time, he has steadily accumulated convictions for violent offences and some dishonesty offences. In August 2018, the accused was arrested and charged after he stabbed his father. Ms Risi states that, according to the accused’s father, he was stabbed because he refused to provide the accused with a lift. In any event, those matters were dealt with by the invocation of former s 32 of the MHFPA.

26. Ms Risi states that, after the stabbing, the accused appeared to become estranged from her family other than the support she could provide. It seems she has visited her son in custody. Her observations of him appear to be consistent with the medical reports which I will now describe.

Psychological and Psychiatric Reports

27. A number of reports from psychiatrists and psychologists were tendered at the inquiry.

28. These reports included a report from a Dr Peter Ashkar dated 25 August 2014. Dr Ashkar is a consultant forensic psychologist. The focus of Dr Ashkar's inquiry was the existence and effect of the accused's brain injury. Dr Ashkar's report includes the statement that the findings of the assessment suggest that "Mr Risi's traumatic brain injury may have damaged the front and temporal lobe of his brain and/or the underlying circuitry that connects these areas to the other areas of his brain." Dr Ashkar noted that damage to those areas of the brain can cause "impulsivity, emotional lability, hyper irritability, and aggressive outbursts particularly during times of stress”. Dr Ashkar stated that the accused met the:

“Diagnostic criteria for a Minor Neurocognitive Disorder because of his cognitive impairments and their impact on his behaviour and every day functioning."

29. Dr Ashkar concluded that he required a greater than normal level of care and support and satisfied the criteria of a mental condition under the then provisions of s 32 of the MHFPA.

30. A number of reports were tendered on the inquiry from Dr Furst, forensic psychiatrist. Dr Furst prepared a report dated 6 July 2019 which appears to have been prepared in connection with the offences which the accused faced in relation to the stabbing of his father. Dr Furst diagnosed the accused with a “persistent neurocognitive disorder” and “anxiety and depression that was not otherwise specified”. Dr Furst described him as having a "severe cognitive impairment as a consequence of [the] acquired brain injury" referred to earlier.

31. Dr Furst's report also addressed questions of whether the accused was fit to be tried. Dr Furst described the accused as having a deficient understanding in relation to the charges he was then facing, the implications of entering a plea as well as the role of the lawyer, the prosecutor, the judge and any jury. Dr Furst concluded that:

“Memory deficits and neurocognitive deficits would preclude him following proceedings and working with his legal counsel in a meaningful way.”

32. Dr Furst concluded that, given the accused's cognitive deficits had been present for approximately 17 years, "he will not become fit to be tried within the next 12 months.”

33. Dr Furst prepared a further report on 16 August 2020 after the accused was charged with the offences on the indictment. In that report, Dr Furst recorded that he had undertook an assessment of the accused on 27 May 2020. In his report of 16 August 2020, Dr Furst records that, at that time, the accused had a reasonable understanding of the court process, the role of the various personnel within the process and that he understood what evidence was. Dr Furst said that he had no acute signs of psychosis and he appeared to have sufficient capacity to follow proceedings and make out his defence, if any. His report records that, as at 27 May 2020, Dr Furst had a belief that the accused was fit to be tried. This aspect of the report was subject to some oral evidence to which I will return.

34. Whatever was the view expressed at that time, the ultimate conclusion in Dr Furst's report of 16 August 2020 was more adverse in terms of the accused's fitness to be tried. Dr Furst repeated his diagnosis of a persistent neurocognitive disorder but also diagnosed the accused with post-traumatic stress disorder and of less relevance, given that he is in custody, a substance use disorder.

35. Dr Furst's conclusion in that report was consistent with his conclusion in his report of 6 July 2019, namely that the accused was not fit to be tried and that his cognitive deficits are chronic and have been so since he acquired his brain injury.

36. A further report was prepared by Dr Furst dated 18 June 2021. That report was prepared partly in response to the reports of Dr Pullman and Dr Allnutt which I will describe, partly to update the court as well as to address the fact that the Act had come into force since the time of his earlier assessments.

37. Dr Furst effectively restated the opinions in his report of 16 August 2020 noting that the test for unfitness in s 36 of the Act appears to be "virtually identical" to the Presser standard. Dr Furst expressed a further concern about the accused's suicide risk and included a strong recommendation that the accused be referred to the Long Bay Hospital as a forensic patient and that he remain in hospital on a long term basis.

38. The Crown tendered reports from Dr Allnutt and Dr Pullman.

39. Dr Allnutt is a forensic psychiatrist. He undertook an audio/visual interview with the accused on 10 December 2020 and spoke to him again by telephone on 30 December 2020.

40. In a report dated 3 February 2021, Dr Allnutt also expressed the opinion that the accused has chronic post-traumatic stress disorder (“PTSD”) with associated depression. He said the accused demonstrated several cognitive difficulties which derived from an injury to his temple and frontal lobes. He stated that the neurocognitive disorder is a relatively stable mental condition. He also noted the accused has substance abuse disorder and has Type 1 diabetes.

41. In relation to the accused's fitness to stand trial, Dr Allnutt stated that the accused had the capacity to understand the charges and the nature of the trial process including the role of the lawyers, but added that the difficulty in this case is that, in addition to his cognitive difficulties, the accused had PTSD anxiety and a depressive disorder. Dr Furst stated that determining fitness for trial in this case was difficult:

“… because on the one hand [the accused] manifests a capacity to understand legal processes, but his anxiety, combined with his cognitive difficulties, undermine his motivation to engage, which in turn translate to difficulties with counsel obtaining instructions from him, putting them in a compromised position.”

42. Dr Allnut’s overall conclusion was as follows:

“On balance, I believe it is probably prudent to regard him as unfit to stand trial and to refer the matter to the MHRT. If his depressive and PTSD symptoms can be brought under better control there does remain a reasonable possibility that he could become fit to stand trial in the next 12 months.”

43. Subsequent to that report, the Crown arranged for the accused to be assessed by a forensic psychologist, Dr Pullman.

44. Dr Pullman attempted to administer various neuro‑psychological tests on the accused. However, Dr Pullman experienced difficulty in doing so and could not determine if the accused was intentionally seeking to exaggerate his cognitive impairment or was unable to engage in assessment due to psychological or psychiatric reasons. In any event, she concluded the results on testing "were considered invalid and cannot be interpreted a true reflection of his actual abilities.” Dr Pullman sought to draw a contrast between the results she obtained and the outcome of his 2014 neuro-psychological assessment which, as I understand it, is a reference to Dr Ashkar's assessment. I note that Dr Furst did not necessarily accept that there was any marked difference between those results.

45. In any event, a further report was prepared by Dr Allnutt dated 14 June 2021 who had the benefit of Dr Pullman's report. Dr Allnutt did not alter his assessment as set out above.

46. I will outline the oral evidence of Dr Pullman and Dr Furst shortly, but it suffices to say that the oral evidence proceeded on the common basis that the accused is presently unfit to stand trial. The evidence was directed to the potential as to whether he may become fit to stand trial or remain unfit for the next 12 months.

47. The evidence that I have described to date, as well as the oral evidence, demonstrates that the accused is presently unfit to stand trial on the offences charged with the indictment having regard to his cognitive impairment, being a result of his brain injury, and his mental impairment, specifically his PTSD and depressive anxiety, as well as the complexity and likely length of the trial and allowing for the fact that he will be represented by experienced counsel.

43. I am satisfied that, at present, the accused cannot, at the very least, understand the offences the subject of the proceedings, understand generally the nature of the proceedings, being an inquiry into whether he committed the offences with which he is charged, follow the course of the proceedings so as to understand what is going on in a general sense, understand the substantial effect of any evidence given against him, make a defence or answer to the charge, instruct his legal representatives or decide what the defences he will rely upon (s 36(1)).

Section 47(1) - may become fit or will not become fit to be tried

49. Both Dr Furst and Dr Allnutt gave oral evidence on the inquiry. As I have stated, their evidence was directed to the relatively narrow question raised by s 47(1) that is whether the accused may become fit or not become fit during the ensuing period of 12 months.

50. Dr Furst was very strongly of the opinion that the accused will not become fit to be tried for the offences on the indictment in the next 12 months. In his oral evidence Dr Furst referred to the consistency of the accused's symptoms and dysfunction over many years.

51. Based on his observations, Dr Furst considered that the accused’s cognitive and mental functioning had deteriorated in the past 12 months. Dr Furst considered that the inevitable anxiety that would be occasioned in the period leading up to and during the trial operating on the accused's cognitive dysfunction, which was relatively unchanging, meant that he would continue to be unfit. Dr Furst considered that, unlike other cases, there was no modification to the trial process that could be made to accommodate the accused's condition, a proposition I accept (s 44(5)(a)).

52. In his evidence-in-chief and cross‑examination, Dr Furst was taken to the assessment he made in 27 May 2020 that I noted earlier. Dr Furst explained it was a preliminary assessment based on a very limited understanding of the nature and complexity of charges against the accused. Ultimately, Dr Furst disavowed the assessment and said he was mistaken.

53. In cross-examination, Dr Furst also referred to the ultimate conclusion in his report of 16 August 2020 concerning the desirability of transferring the accused to Long Bay Hospital. He said that was “probably warranted for close assessment of the symptoms suicide risk and fitness issues” associated with the accused. In his oral evidence, Dr Furst emphatically restated his opinion that he should be transferred to a prison hospital for the purposes of obtaining treatment. However, Dr Furst concluded that no further assessment of the accused's fitness was required because he will remain unfit.

54. In his oral evidence, Dr Allnutt emphasised (correctly) the relatively narrow difference between his opinions and those of Dr Furst concerning the accused's potential to become fit for trial over the next 12 months. Dr Allnutt referred to the relatively static nature of the accused's cognitive impairment compared to the dynamic nature of his mental impairment from depression and anxiety. Dr Allnutt said that there was uncertainty over whether, if the accused's mental impairment was treated properly, his remaining cognitive impairment would render the accused unfit. Dr Allnutt concluded there was some scope to conclude that, if the accused’s mental impairment was treated, he was capable of having a basic understanding of the matters discussed in the Presser test, although at present his severe anxiety and depression prevent him from engaging with the trial process. I gained the distinct impression from Dr Allnutt's evidence that he considered the only realistic means by which the accused could become fit is if he is transferred to the Long Bay Hospital or similar facility and did not return to gaol.

55. I set out the provisions of s 47(1) earlier. That provision posits a binary choice for the Court as to whether a person “may become fit to be tried for the offence” or “will not become fit to be tried for the offence." The subsection does not contemplate the possibility that the Court may be in a state of uncertainty about whether one or another is the correct position. The contrast between the wording of the two sections suggests that a finding in terms of s 47(1)(b), the effect of which will be to exclude the MHRT from assessment of the accused, is one that should only be made if there is a real certainty as to the accused's lack of fitness during the relevant 12 month period.

56. In his submissions, Mr Anderson emphasised the greater exposure that Dr Furst had to the accused compared to the limited opportunities that Dr Allnutt had to interview him. Accordingly, he submitted that greater weight should be given to Dr Furst opinions, specifically his opinion that, given the deterioration of the accused in custody, that one can be satisfied that he will not become fit to be tried over the next 12 months.

57. I share Dr Furst's pessimism about the accused's likelihood of becoming fit in the next 12 months. Ultimately however, I consider that Dr Allnutt's analysis is more consistent with the test posed by s 47(1). The material does hold out a realistic possibility, even though it is not a likelihood, that, via appropriate treatment in a hospital setting, the accused could become fit over the ensuing 12 months. Accordingly, I am (just) not satisfied that the accused will not become fit to be tried for the offences in the relevant period (s 47(1)(b)).

58. It follows that I am obliged to refer the accused to the MHRT (see s 49(1)).

Other Matters

59. One matter raised by Dr Furst in his reports, is whether the Court could order that the accused be detained as a forensic patient in hospital pursuant to s 47(2)(d) or (e) of the Act.

60. While the Court undoubtedly has the power to order the accused be remanded in custody, I am very doubtful I have the power to order that they be detained in a particular facility or type of facility. That said, it should be obvious from what I have stated that there is a compelling, almost overwhelming need, for that to occur, given the interests of the accused and the interests of the public. It seems to provide the best, and perhaps only, prospect of the accused becoming fit to be tried and dealt with by the usual processes of the criminal justice system.

61. Also, I note that, in his written submissions, Mr Anderson also sought an order that the matter be referred back to the DPP to consider whether the prosecution continue. This order is reflective of s 53(2) which is engaged if the court made a finding under s 47(1)(b). Where the finding is not made, and given the division of the functions as between the DPP and the Court, I am extremely doubtful whether the Court has any power to make such an order. I will not make that order.

Orders

62. Accordingly the Court finds that:

1. In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the accused, Michele Noel Risi, is unfit to be tried on the offences the subject of the indictment filed against him in this court.

2. Pursuant to section 47(1)(a) of the Mental Health and Cognitive Impairment Provisions Act 2020, on the balance of probabilities during the period of 12 months from today the accused may become fit to be tried for those offences.

   63. The Court orders that:

3. The accused be remanded in custody and,

4. Pursuant to section 49(1) of the Mental Health and Cognitive Impairment Forensic Provision Act 2020 the accused be referred to the Mental Health Review Tribunal.

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Amendments

14 September 2021 - [54] - Last sentence. The word "unfit" was corrected to read "fit".

"...the only realistic means by which the accused could become fit is if he is transferred to the Long Bay Hospital..."

Decision last updated: 14 September 2021