R v Tarantino (No 4)

[2019] NSWSC 1055

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Tarantino (No 4) [2019] NSWSC 1055
Hearing dates:	14 and 15 August 2019
Date of orders:	16 August 2019
Decision date:	16 August 2019
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	The accused, Vinzent Tarantino, is fit to be tried.
Catchwords:	CRIMINAL PROCEDURE – fitness to be tried – Mental Health Forensic Provisions Act 1990 s 8(1) fitness inquiry – whether the accused meets the Presser criteria – whether persecutory delusions and a schizoaffective disorder render the accused unfit to stand trial – accused fit to be tried
Legislation Cited:	Evidence Act 1995 Mental Health Forensic Provisions Act 1990
Cases Cited:	Eastman v R (2000) 203 CLR 1; [2000] HCA 29 Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 R v Mailes (2001) 53 NSWLR 251 R v Presser [1958] VR 45; (1958) ALR 248 R v Robertson [1968] 3 All ER 557 R v Tarantino [2019] NSWSC 939 R v Tarantino (No 2) [2019] NSWSC 957 R v Tarantino (No 3) [2019] NSWSC 985 R v Taylor (1992) 77 CCC (3d) 551 R v Tier [2001] NSWCCA 53
Category:	Procedural and other rulings
Parties:	Regina (Crown) Vinzent Tarantino (Accused)
Representation:	Counsel: P Barrett; V Garrity (Crown) B Rigg SC; P Coady (Accused)   Solicitors: Office of the Department of Public Prosecutions (Crown) Watsons Solicitors (Accused)
File Number(s):	2016/347591
Publication restriction:	Not to be published prior to the conclusion of the proceedings at first instance

Judgment

1. On 20 November 2016, the accused, Vinzent Tarantino, was charged with, inter alia, murdering Ms Quanne Diec on or about 27 July 1998 at Granville in New South Wales. He was refused bail. He has been held on remand ever since.

2. In 2018, Mr Tarantino was committed for trial. He has been arraigned in this Court on a number of occasions. On the most recent occasion that he was arraigned, namely 22 July 2019, the indictment charged a sole count of murder. Mr Tarantino pleaded not guilty. In the circumstances that I will describe, an issue has arisen as to whether he is fit to be tried.

The Voir Dire

3. Just prior to his arrest on 20 November 2016, Mr Tarantino attended Surry Hills Police Station and advised the police officer on duty that he wished to confess to a murder. He made various admissions around this time. Later that evening, he participated in an electronically recorded interview with a suspected person ("ERISP") in which he admitted to collecting Ms Diec in a street in Granville, driving her to his father's house nearby, eventually strangling her and disposing of her body "south...somewhere off the Princes Highway".

4. Three days later, Mr Tarantino was electronically recorded advising police that he later visited the site where he left Ms Diec's body and moved it to a different location. The recording showed Mr Tarantino being driven to the outskirts of southern Sydney and attempting to assist police to locate Ms Diec's body, although her body was not found.

5. Mr Tarantino participated in another ERISP on 28 November 2016 and made further admissions.

6. Mr Tarantino's trial was originally listed to commence on 8 July 2019. However, the empanelling of a jury has been postponed while pre-trial issues concerning the admissibility of evidence sought to be adduced in the Crown case were addressed (see R v Tarantino [2019] NSWSC 939; R v Tarantino(No 2) [2019] NSWSC 957; R v Tarantino(No 3) [2019] NSWSC 985).

7. The most substantive pre-trial issue concerns the admissibility of the admissions made by Mr Tarantino to the police on 20, 23 and 28 November 2016. On 30 July 2019, senior counsel for Mr Tarantino, Ms Rigg SC, told the Court that Mr Tarantino sought their exclusion under ss 84, 85 and 90 of the Evidence Act 1995 (NSW). Amongst other matters, Ms Rigg submitted that the evidence should be excluded because the admissions were induced by actual threats made to Mr Tarantino on behalf of so-called outlaw motorcycle gangs ("OMCGs") (Evidence Act 1995, s 84) or were made in circumstances where Mr Tarantino “genuinely” believed that such threats had been made and were ongoing (Evidence Act, ss 85 and 90). In support of the case for exclusion, Ms Rigg tendered a significant amount of material concerning Mr Tarantino's medical and psychiatric history, as well as the recordings and transcripts of intercepted telephone calls between him and members of his family and friends in the two months prior to his attendance at the police station in November 2016.

8. Ms Rigg also tendered on the voir dire a report from a forensic psychiatrist, Dr Andrew Ellis, and a clinical psychologist, Dr Katie Seidler. Neither Dr Ellis nor Dr Seidler had consulted with Mr Tarantino before they prepared their reports and nor have they since. At that time, neither of them were expressly requested to make any diagnosis or asked to express any opinion as to whether Mr Tarantino in fact suffered from a mental disorder. Instead, Dr Ellis and Dr Seidler were asked specific questions directed to the basis for exclusion under the Evidence Act on the hypothesis that Mr Tarantino had not in fact been threatened in the immediate months and years prior to his attendance at the police station, but genuinely believed that he had been; specifically, that he was suffering delusions to that effect.

9. Despite the limited questions they were asked, both Dr Ellis and Dr Seidler referred to Mr Tarantino as being mentally ill. Dr Ellis referred to Mr Tarantino's most likely diagnosis as at November 2016 as a "schizoaffective disorder", that being a "long-term mental illness related to schizophrenia characterised by persistent delusions or hallucinations with cyclic exacerbations of depressed and manic mood." Dr Seidler referred to Mr Tarantino as having a "mental illness", one component of which was "delusional and psychotic thought processes". Consistent with the questions asked of them, neither Dr Ellis nor Dr Seidler addressed any question as to whether Mr Tarantino was currently fit to be tried. So far as the challenge to the admissions was concerned, the effect of their evidence was that although Mr Tarantino's fear of reprisals from OMCGs may have some factual foundation in actual events that occurred 20 years ago, it was inherently plausible that at the time he made the admissions he was suffering under the delusion that there was an imminent threat from them to himself and his family and that one means of obviating that threat was to confess to Ms Diec's murder.

10. By way of response to this material, the Crown also instructed a psychiatrist, Dr Adam Martin. On Monday, 5 August 2019, when the voir dire was set to resume with the calling of lay witnesses, the Crown Prosecutor advised the Court that Dr Martin considered that the material he had reviewed raised a question as to whether Mr Tarantino was fit to be tried. As that issue is fundamental to the trial process, the voir dire was adjourned until Wednesday, 7 August 2019 to enable a report of Dr Martin addressing fitness to be served and for the Court to consider whether a fitness hearing should be held.

7 August 2019

11. A report addressing unfitness from Dr Martin dated 5 August 2019 was tendered on 7 August 2019. Dr Martin stated that he had not been able to consult with Mr Tarantino directly, but that he had reviewed the relevant material, including the reports of Dr Ellis and Dr Seidler. Dr Martin stated that he had also reviewed a report of Dr Jonathon Adams dated 6 September 2017. Dr Adams had consulted with Mr Tarantino on 20 February 2017 at the Parklea Correctional Centre, and again on 4 August and 31 August 2017 at the Metropolitan Remand and Reception Centre. Dr Adams' report is further described below, but it suffices to state that he concluded that Mr Tarantino "would most likely be found unfit to stand trial by the Court."

12. Having received this material, I determined that it was necessary to conduct an inquiry into Mr Tarantino's fitness to be tried and that all aspects of the trial had to be suspended until that was resolved (see, for example, R v Tier [2001] NSWCCA 53 at [1] (per Sheller JA)). Ms Rigg submitted that the inquiry should commence and conclude immediately. She read an affidavit from Charles Abbott, who has been Mr Tarantino's solicitor since 2017. The effect of Mr Abbott's affidavit was that, based on his extensive dealings with Mr Tarantino, in Mr Abbott's opinion Mr Tarantino was fit to be tried. Nevertheless, on the application of the Crown, I adjourned the hearing for one week to allow the attendance of both Dr Martin and Dr Adams and for them to consider the contents of Mr Abbott's affidavit.

13. One further matter should be noted about the hearing on 7 August 2019. Immediately after the Crown Prosecutor submitted that the hearing of the fitness inquiry take place on an adjourned date, Mr Tarantino interrupted him and the Court. One part of the transcript of his short outburst is unintelligible, but in another part he states, "with respect, it's rubbish, it's ludicrous that I have to turn up here in a case like this …." I take this to be a reference to his frustration at there being a hearing into his fitness to be tried and the delay to his trial that would occasion. The interruption was dealt with by the Court adjourning briefly and his being spoken to by his legal representatives. As at the date of this judgment there have been 11 hearing days. To date, Mr Tarantino's outburst on 7 August 2019 has been the only one of its kind.

Fitness to be Tried

14. Subsection 8(1) of the Mental Health Forensic Provisions Act 1990 ("MHFPA") provides that, “[i]f the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned”, then “the Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence”. The reference to "arraigned" in this section is to arraignment before a jury. It was pursuant to this provision that I determined on 7 August 2019 that an inquiry should be conducted. As there was nothing to suggest that the question was not raised by the Crown "in good faith", it further followed that the Court was obliged to conduct the inquiry "as soon as practicable" (subsections 10(1) and (2)). In adjourning the proceedings, I considered whether to "request" that Mr Tarantino undergo a psychiatric examination (s 10(3)(d)). However, I declined to make that request as it was clear that Mr Tarantino was refusing to attend upon a psychiatrist.

15. Section 11 of the MHFPA provides that the determination of fitness is to be undertaken by a judge alone. Subsection 12(1) enables Mr Tarantino to be represented in the inquiry, as he was. Subsection 12(2) provides that the inquiry is not to be conducted in an adversarial manner and subsection 12(3) specifies that there is no onus of proof imposed upon any party. If following an inquiry a person is found to be unfit to be tried, then the proceedings instituted against them must not be recommenced, and instead the Court must refer the matter to the Mental Health Review Tribunal (s 14). If the matter is referred to the Tribunal, then it must determine whether the accused person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence (s 16). If following an inquiry an accused person is found to be fit to be tried for an offence, the proceedings against them are recommenced or continued (s 13). It is notable that the MHFPA only admits of two findings: a positive finding of fitness or a positive finding of unfitness. There is no scope for the Court to merely not be satisfied of one or the other.

16. In Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 at 246 (“Kesavarajah”), Mason CJ, Toohey and Gaudron JJ confirmed that an assessment of whether a person is unfit to be tried is to be determined by reference to the factors identified by Smith J in R v Presser [1958] VR 45; (1958) ALR 248 (“Presser”). The criteria in Presser require that Mr Tarantino be able to:

(1)   understand with what he has been charged;

(2)   enter a plea to the charge;

(3)   exercise his right to challenge any juror;

(4)   understand generally the nature of the proceedings or understand what is going on in Court in a general sense, namely that it is an inquiry as to whether he did what he is charged with;

(5)   follow the course of the proceedings so as to understand what is happening without the necessity to understand all of the various aspects of court formality;

(6)   understand the substantial effect of any evidence which may be given against him in support of the prosecution; and

(7)   give his counsel instructions, including his version of the facts sufficient to make his defence and answer the charge.

17. Two aspects of the inquiry into fitness should be noted. First, the necessity to consider the length of the trial, and the likely response of the accused during such a long trial, was a point of controversy in Kesavarajah. Mason CJ, Toohey and Gaudron JJ found error on the part of the trial judge in that case in failing to "advert to the possibility that the appellant's psychosis might flare up under stress during the course of what was obviously going to be a very long trial" (at 246). Later, their Honours stressed the importance of a trial judge "ensur[ing] that the question [of fitness]" is determined in light of the estimated duration of the trial (at 248). In contrast, Deane and Dawson JJ did not accept that a trial judge had to consider the accused's prospects of becoming unfit (at 249).

18. Second, in Eastman v R (2000) 203 CLR 1; [2000] HCA 29 at [26] (“Eastman”), Gleeson CJ approved four propositions noted by the Court of Appeal of Ontario in R v Taylor (1992) 77 CCC (3d) 551 at 564-565, namely:

“(a)   The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial even if that delusion relates to the subject matter of the trial.

(b)   The fact that a person suffers from a mental disorder which may cause him to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c)   The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

(d)   The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that a person is unfit to stand trial."

19. In R v Taylor, the accused had been diagnosed as suffering from paranoid schizophrenia, such that even though he had a thorough understanding of the judicial process, he was said to be "unable to distinguish reality from fantasy". His "thinking" was described as "thoroughly irrational" and he had not been able to obtain legal representation because he "believe[d] that everyone had been conspiring against him". The Court of Appeal of Ontario concluded that "the presence of delusions does not vitiate the accused's fitness to stand trial unless the delusion distorts the accused's rudimentary understanding of the judicial process". It was held that a determination of fitness is "limited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence". Their Honours concluded that it is not necessary for a finding of fitness that the “accused ultimately makes decisions that are in his or her best interests”. In R v Mailes (2001) 53 NSWLR 251 at [143], Wood CJ at CL noted with apparent approval an English decision to the same effect as R v Taylor, namely R v Robertson [1968] 3 All ER 557 (“Robertson”). In Robertson, the accused's thinking was delusional but he was able to comprehend the proceedings. The United Kingdom Court of Appeal noted that "the mere fact that the appellant was not capable of doing things which were in his own best interests were insufficient ground for a jury to return a finding of disability.”

Nature and Length of the Trial

20. In essence, the Crown case is that Mr Tarantino kidnapped Ms Diec from Factory Street, Granville on the morning of 27 July 1998 while driving a white van with registration PAQ 205. This is said to have occurred while Ms Diec was walking from her home to a local train station so she could catch the train to school. At the time she disappeared Ms Diec was 12 years old. The Crown alleges that he took Ms Diec to his father's address in Second Street, Granville and murdered her before disposing of her body in an unknown location.

21. In broad terms, the evidence to be called by the Crown can be seen as falling into three categories. The first category of evidence concerns the events surrounding the disappearance of Ms Diec on 27 July 1998. The second category of evidence is from persons who dealt with Mr Tarantino around that time, including those who dealt with him over the possession of a van said to have been connected to the abduction and two witnesses who claim to have heard Mr Tarantino make admissions as to the killing. The third category of evidence is the admissions made by Mr Tarantino to the police in 2016 and an admission said to have been made to a former girlfriend sometime around 2010.

22. I have been advised by counsel that if the objections to the admissions made to the police are overruled, then the estimated length of the trial is approximately three months. If, however, the admissions are rejected, along with the alleged admission from 2010, then the estimated length of the trial is four to five weeks.

Mr Abbott's Evidence

23. In his affidavit, Mr Abbott states that he has been a solicitor for 34 years. As noted, he was instructed to act in 2017. He briefed Ms Rigg in September 2017 and junior counsel, Mr Coady, in March 2018. He says that in 2017 he received Dr Adams' report and noted his concerns about Mr Tarantino's capacity to provide instructions. He said that he observed Mr Tarantino during conferences with Ms Rigg in October and December 2017, in which she explained to him the "nature and strength" of the Crown case, as well as the benefits of an early guilty plea. Mr Abbott said that Mr Tarantino provided responsive instructions. Mr Abbott said he had no concerns over Mr Tarantino's understanding of those issues. Mr Abbott recounted a similar process in 2018 and 2019 where instructions were obtained before and after the committal hearing in March 2018 and the proceedings in this Court. Mr Abbott noted that at one point in the committal proceedings Mr Tarantino called out something in Court and later in 2018 he expressed the concern that his mail was being interrupted.

24. In his affidavit, Mr Abbott further states as follows:

“Through the period of my retainer I have received approximately 700-900 pages of written instructions from Mr Tarantino, either by post or by person during conferences. These have all been conveyed to counsel briefed and have been used to understand Mr Tarantino's essential instructions regarding the Crown case.

In conference and in writing Mr Tarantino has voiced a continuing interest in persecution by the Rebels and police misconduct. However I am of the view that amongst all of this, completely adequate instructions have been provided in relation to his factual response to the evidence to be adduced against him by the Crown at his trial.

Further, as at the date of the swearing of this affidavit, this matter has been running in the Supreme Court for 8 days during which time Mr Tarantino has been attending each day.”

25. After setting this out, Mr Abbott also sets out his opinion on whether or not Mr Tarantino satisfied each of the Presser criteria, which in Mr Abbott's opinion he did. Mr Abbott noted that, to his observation, Mr Tarantino can become anxious or upset, particularly when he appears or reports to be tired, and that appears to be ameliorated by a break in the proceedings. Mr Abbott concludes his affidavit by stating that although it has been a time-consuming process, "specific and detailed instructions to defend" the charge have already been obtained.

25. In oral evidence on 14 August 2019, Mr Abbott confirmed that the opinions he expressed about Mr Tarantino being able to participate in the trial were based on his being represented by his current legal team. He confirmed that Mr Tarantino has not advised him that he sees any part of his current legal team, the Court or the prosecuting counsel or their instructing solicitors as being part of, or connected to, any system of persecution of him by persons associated with OMCGs. As noted below, there is evidence that Mr Tarantino perceives the investigating police as being part of such a system.

26. Mr Abbott gave further oral evidence on 15 August 2019. He addressed an aspect of Dr Adams' and Dr Martin's evidence concerning his reference to having received 700 to 900 pages of written instructions. Mr Abbott explained that the Crown brief of evidence was lengthy and that he had insisted on receiving written instructions from Mr Tarantino. He said that about 10% of those pages consisted of Mr Tarantino recounting his fear of reprisals from OMCGs and others acting on their behalf. He said that about half of those pages comprised Mr Tarantino's analysis of the evidence in the Crown brief, including a comparison of witness statements in a search for possible inconsistencies. The balance comprised instructions on factual matters.

Dr Adams

28. I have already referred to an aspect of Dr Adams' report dated 6 September 2017. In that report, Dr Adams summarised Mr Tarantino's psychiatric history, including the origins of his belief that persons associated with OMCGs still wish to harm him and his family. Based upon his consultation with Mr Tarantino, Dr Adams noted that Mr Tarantino's fears in that regard had translated to his time in detention in both the police cells and later in gaol. He recorded that Mr Tarantino believed that "motorcycle gang members were working in cahoots with corrupt officers in order to harass and persecute him", as were correctional officers. Dr Adams recorded an assessment of Mr Tarantino against the Presser criteria in terms that reveal an understanding of the essentials of the trial process. However, so far as the integrity of the trial process was concerned, Dr Adams recorded:

“As discussed in the body of this report, Mr Tarantino frequently referred to his concerns about 'corruption'. While exploring fitness issues, he described his concerns about 'political influence'. He also talked about 'threats' being made in association with the 'corruption of the witnesses'. He also referred to an 'unofficial reward' offered by the parents of the alleged victim.

I asked Mr Tarantino if he believed he would get a fair trial to which he replied 'no way in the world'. I asked him why to which he responded 'everything I said was under duress … I don't think I'll even get to a trial, I think they want me dead first.' "

29. Dr Adams concluded that Mr Tarantino was experiencing symptoms of psychosis "in the form of a delusional belief system and thought disorder", manifesting in ideations of persecution by OMCG members over many years but now extending to police and correctional officers. Dr Adams considered that Mr Tarantino's clinical presentation was in keeping with a diagnosis of a schizoaffective disorder, but added that he also considered a “differential diagnosis of schizophrenia and possibly a delusional disorder” as well. Dr Adams noted that at the time he saw him, Mr Tarantino was not being either treated or medicated for that form of disorder.

30. I have already noted Dr Adams' ultimate conclusion about Mr Tarantino's fitness to be tried. Dr Adams expressed a concern about whether Mr Tarantino's delusional beliefs might impact upon his plea. He otherwise stated:

“Given Mr Tarantino's level of thought disorder and preoccupation with persecutory concerns, I am concerned about his capacity to follow legal proceedings in a general sense, and provide his version of events in a clear and coherent manner to his legal representative. It is also concerning that Mr Tarantino was adamant that he would not receive a fair trial, based upon his delusional belief system.

I also have concerns about Mr Tarantino's capacity to engage in a potentially lengthy trial, which goes to the issues set out in R v Kesavarajah.”

31. In his oral evidence, Dr Adams adhered to his conclusion that Mr Tarantino was unfit to face trial. He identified three matters of significance to that conclusion. The first was the absence of any treatment of Mr Tarantino by way of a psychiatrist or antipsychotic medication since he was interviewed in 2017, although Dr Adams noted that he had been receiving medication that relieves anxiety and depression. The second was an entry in a Justice Health note made by a general practitioner on 4 April 2019, to the effect that he was complaining of multiple ailments but provided incoherent responses. The third matter relied on by Dr Adams was the transcript of Mr Tarantino's outburst on 7 August 2019, which has already been described.

32. So far as Mr Abbott's affidavit was concerned, Dr Adams accepted that it warranted an inference that Mr Tarantino satisfied the "knowledge-based Presser criteria", i.e. that he had an understanding of the essentials of the trial process. Nevertheless, Dr Adams maintained a concern that Mr Tarantino's delusional thinking would impact upon his capacity to follow legal proceedings in a “general sense” and capacity to “understand the substantial effect of evidence against him”. Insofar as Mr Abbott stated that he had received instructions, Dr Adams accepted that was a "very significant development". Nevertheless, he noted that Mr Abbott had recounted receiving 700 to 900 pages of written instructions from Mr Tarantino. Dr Adams said he was concerned that the length of those instructions indicated that they were affected by his persecutory beliefs, although he accepted that he did not know for sure. Dr Adams accepted that some of his concerns about eliciting a cogent factual response from Mr Tarantino in giving evidence could be overcome by careful questioning in chief. However, in re-examination he expressed a concern that under cross-examination, Mr Tarantino "would become preoccupied by his persecutory delusional [belief] system".

Dr Martin

33. I have also noted the effect of Dr Martin's report concerning Mr Tarantino's fitness to be tried. As he did not speak to Mr Tarantino, Dr Martin relied heavily on Dr Adams' opinion. He otherwise noted the contents of the reports of Dr Ellis and Dr Seidler and that there was no material to indicate that Mr Tarantino's condition had changed.

34. Dr Martin gave oral evidence on 14 August 2019. Like Dr Adams, Dr Martin adhered to the opinion in his report, albeit that it was largely based on Dr Adams' initial report following his three 2017 consultations with Mr Tarantino. Despite Mr Abbott's affidavit, Dr Martin stated that he was concerned about Mr Tarantino's ability to participate in the trial "in terms of challenging evidence in a dynamic way", including giving evidence-in-chief and under cross-examination. Otherwise, Dr Martin considered the existence of 700 to 900 pages of written instructions as “consistent potentially with [an] ongoing psychotic process”.

Further Evidence from Dr Ellis and Dr Seidler

35. In a short supplementary report, Dr Ellis observed that Mr Abbott's affidavit "provides the best account of issues relevant to fitness available to me at present". Dr Ellis noted that as a "general principle, a psychiatric diagnosis does not automatically render a person unfit", as unfitness will depend upon the particular symptoms and the particular trial. Contrary to Ms Rigg's submissions, I do not accept that Dr Ellis expressed any opinion on fitness in either his supplementary report or in his oral evidence. Instead, he merely indicated that, in light of Mr Tarantino's confidence in his legal representatives and assuming the trial accommodates his need for breaks and consultation with his legal team, then "he may be able to sustain the Presser competencies across the course of a longer trial".

36. Dr Seidler also provided a supplementary report. Dr Seidler noted both Dr Adams' and Dr Martin's diagnoses and added that "consistent with the most recent and detailed objective assessment of Dr Adams, it is possible, and indeed likely, that Mr Tarantino may be unfit to stand trial and participate meaningfully in the legal process". However, Dr Seidler also emphasised Mr Abbott's evidence, bearing in mind that his contact with Mr Tarantino is "both more recent and more in-depth than that of Dr Adams". Dr Seidler concluded that "whilst I cannot offer an opinion with any certainty, it would seem reasonable to infer that some weight should be placed in the opinion of Mr Abbott in relation to Mr Tarantino's capacity to participate meaningfully in legal proceedings", noting that his "fitness may change over time". In her oral evidence, Dr Seidler agreed that Mr Tarantino's thought disorder "may or may not have impacted upon the factual nature of the instructions that he was giving his legal team, depending on how relevant those delusions were to his instructions".

Submissions

37. Accepting that the proceedings were not adversarial, the Crown Prosecutor submitted the appropriate finding to make was that Mr Tarantino was unfit to be tried. The Crown Prosecutor pointed to the evidence of both Dr Adams and Dr Martin as proof of Mr Tarantino's lack of fitness.

38. Ms Rigg submitted that the Court should find that Mr Tarantino was fit to be tried. At the outset it should be noted that Ms Rigg did not concede that Mr Tarantino was either mentally ill or affected by delusional thinking but submitted that the fitness hearing was being approached by Mr Tarantino's legal representatives on the basis of an assumption that those matters were established. Otherwise, I note four aspects of her submissions. First, Ms Rigg submitted that determinative weight should be given to Mr Abbott's assessment of his ability to obtain instructions from Mr Tarantino. Ms Rigg submitted that Mr Abbott was an experienced solicitor who had dealt with Mr Tarantino for far more time than Dr Adams and was in the best position to assess his capacity to provide a factual response to the Crown case.

39. Second, Ms Rigg submitted that when consideration is given to the nature of the Crown case, any concern that Mr Tarantino's instructions were affected by delusional thinking should not warrant a conclusion that he is not fit to be tried. Ms Rigg referred to the three aspects of the Crown case noted already (at 21]). With so much of the Crown case as concerns the events surrounding Ms Diec's disappearance, Ms Rigg submitted that Mr Tarantino's factual instructions were likely to be limited and it was not necessary for him to substantially engage with the evidence. With so much of the Crown case as concerns Mr Tarantino's interaction with various associates in the period of 1997 to 1999, Ms Rigg submitted that his instructions were unlikely to be affected by any distorted thoughts. With so much of the Crown case as concerns the admissions said to have been made in 2010 and then to the police in 2016, Ms Rigg submitted that the recitation by Mr Tarantino of his fears and anxieties at those times was at the heart of the defence response.

40. Third, insofar as there were concerns about Mr Tarantino's likely response to events and evidence during the trial, Ms Rigg pointed to Mr Abbott's evidence concerning the instructions that have already been obtained and the capacity to use adjournments and the like to obtain any further instructions that may be required.

41. Fourth, by reference to the decision in R v Taylor, Ms Rigg submitted that even if Mr Tarantino's factual narrative as provided to his lawyers was the product of, or affected by, a delusional thought system, that would not render him unfit to be tried in the absence of any distortion of his "rudimentary understanding of the judicial process".

Findings

42. Based on Dr Adams' evidence, I am satisfied that as at 2017 Mr Tarantino was suffering from a schizoaffective disorder, one symptom of which is that he experiences persecutory delusions, and that he was otherwise thought disordered. Given that the evidence demonstrates he has not been taking antipsychotic medication or otherwise receiving psychiatric care since then, I am satisfied that his condition has not changed.

43. As noted, Dr Adams and the other psychiatrists accepted that Mr Tarantino fulfilled what they described as the "knowledge-based criteria" stated in Presser, that is, he understands the charges against him, the necessity to enter a plea, the right to challenge a juror and understands the nature of the proceedings in a general sense. I am also satisfied that at present he is capable of following the course of the proceedings without necessarily understanding all of the Court formalities. However, there remains the issue as to whether he can understand the substantial effect of any evidence which may be given against him and provide instructions to his legal representatives, including his version of the facts sufficient to make his defence.

44. Three matters of relevance to the analysis of those issues need to be noted.

45. First, the evidence does not suggest that Mr Tarantino's persecutory delusions have extended to the trial process itself. As noted, he has maintained trust and confidence in his legal team over a two-year period. The evidence does not suggest that he has incorporated either them, prosecuting counsel and their instructing solicitors or the Court into his delusional belief system, although it appears to have extended to the police and Corrective Services personnel.

46. Second, in relation to the level of assistance that Mr Tarantino's legal team require of him in mounting a proper defence, I accept Ms Rigg's submission as to the likely level of input required by Mr Tarantino in providing instructions on the issues that arise in the trial and the scope of the instructions that have been obtained to date.

47. Third, it is necessary to note the level of engagement shown by Mr Tarantino in the eleven pre-trial hearing days to this time. As I advised counsel during submissions, at least to my observation Mr Tarantino has been calm, alert and following the course of the proceedings reasonably closely. I do not regard the outburst on 7 August 2019 as demonstrative of unfitness.

48. As noted, the remaining Presser criteria concern Mr Tarantino's capacity to understand the effect of the evidence against him and provide his counsel with instructions as to his version of the facts to enable them to make his defence. Mr Abbott's evidence provides a sound basis for concluding that Mr Tarantino is capable of understanding the substantial effect of any evidence that may be given against him. The existence of detailed responsive instructions would not be possible without Mr Tarantino having at least understood what was being said against him, albeit he might have perceived that why it was being said was part of a system of persecution of him.

49. However, as noted, Dr Adams' evidence, and to an extent Dr Martin's evidence, raises a significant doubt about his capacity to provide a responsive version of the facts that is unadulterated by his thought disorder. The short answer to that contention, however, may be that suggested by R v Taylor, namely that even if the facts so provided are the product of delusional thought processes, that is sufficient provided the delusions do not distort Mr Tarantino's rudimentary understanding of the judicial process. However, I do not consider it necessary to determine that broad proposition because in the end result Dr Adams' concerns about this aspect of Mr Tarantino's functioning gives way to Mr Abbott's direct experience. The limiting aspect of Dr Adams' opinion is that he did not have the opportunity, as Mr Abbott has had, of communicating with Mr Tarantino over the subject matter of the charges, much less the chance to do so over many months. Dr Adams' concern rested on his general diagnosis and what could be discerned from Mr Abbott's description of having received 700 to 900 pages of instructions, namely, the possibility that such material was the product of a fixated mind. Mr Abbott's supplementary evidence suggests that it was largely factual or analytical and generally responsive. Although I have not found this easy to resolve in the (understandable) absence of the detail of privileged communications, I accord significant deference to the assessment of his legal team that, notwithstanding his mental illness, Mr Tarantino meets the remaining Presser criteria. At most, it has been shown that Mr Tarantino's delusional thoughts might affect his instructions on some aspects of his response to the Crown case, that being the "subject matter of the trial". However, of itself that does not render Mr Tarantino unfit to be tried (see Eastman at [26] per Gleeson CJ).

50. Finally, I note that one aspect of Dr Adams' and Dr Martin's concerns related to Mr Tarantino's participation in the trial from this point. Kesavarajah is not authority for the proposition that the possibility that someone might become unfit in the future renders them presently unfit. Instead, Kesavarajah establishes that an assessment of unfitness is trial-dependent; that is, the Court must determine whether the accused is fit for the particular trial that they will face, including its length. Dr Adams' evidence raises a doubt as to whether, given the likely length of the trial, Mr Tarantino will be able to follow the proceedings and provide instructions to counsel as new or different evidence emerges. However, I accept Ms Rigg's submissions in relation to how that has been in part addressed by obtaining detailed instructions and can be addressed as the trial progresses through adjournments and the like.

51. Based on Mr Abbott's evidence and the experience of the proceedings to date, I am not satisfied that Mr Tarantino is unfit for trial on account of this matter either. As stated, Mr Tarantino clearly has trust and confidence in his current legal team. Leaving aside the short outburst on 7 August 2019 which I referred to, he has remained calm throughout the trial and in my observation has followed the proceedings closely. On a number of occasions when matters have arisen, it has been addressed by a short break and conferences between Mr Tarantino and his legal team. To date Mr Tarantino has been engaged with the proceedings and has been able to instruct counsel. Although the potential for that to deteriorate, as suggested by Dr Adams, can be accepted, it remains only a possibility, albeit a realistic one. On the information available at present, however, it is not a basis for a present finding of unfitness.

Decision

52. I find that the accused, Vinzent Tarantino, is fit to be tried.

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Amendments

28 November 2019 -

Decision last updated: 28 November 2019