R v Vosota

[2021] NSWDC 621

District Court

New South Wales

Medium Neutral Citation:

R v Vosota [2021] NSWDC 621

Hearing dates:

28 October 2021

Date of orders:

28 October 2021

Decision date:

28 October 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

(1) I refer the accused person to the Mental Health Review Tribunal for a review: s 49(1)

(2) I remand the accused in custody: s 47(2)(d).

(3) The accused is to be transferred to a secure psychiatric facility for assessment and treatment: s 42(2)(e).

(4) The reports of Drs Furst and O’Dea are to be served on the Commission for Corrective Services and Justice Health.

(5) A copy of this judgment is to be forwarded to the Registrar of the Mental Health Review Tribunal, as well as the reports of Dr Furst and O’Dea.

Catchwords:

Criminal Law - accused committed for trial to determine the question of fitness - fitness hearing - not fit to be tried - mental health or cognitive impairment

Legislation Cited:

Crimes Act 1900

Cognitive Impairment Forensic Provisions Act 2020

Mental Health Forensic Provisions Act 1990

Cases Cited:

Kesavarajah v The Queen (1994) 181 CLR 230

R v Presser [1958] VR 45

Category:

Procedural rulings

Parties:

Regina (Crown)
Jiuta Vosota (Accused)

Representation:

Counsel:
Mr Kerr
Mr King

Solicitors:
Mr Thomas (DPP)
Ms Murray

File Number(s):

2020/00260430

Publication restriction:

Nil.

EX TEMPORE Judgment

INTRODUCTION

1. The accused has been charged with intentionally cause grievous bodily harm contrary to s 33 of the Crimes Act. The accused was committed for trial to determine the question of fitness.

2. The matter is to be dealt with pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which prescribes criminal procedures for the Supreme and District Court for persons affected by mental health and cognitive impairments. The Act replaced the Mental Health Forensic Provisions Act 1990, and commenced on 27 March 2021.

3. The Court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence as soon as practicable: s 42.

4. The inquiry procedures are set out in s 44 and include the following:

1. The determination is by judge alone: s 44(1).

2. The defendant is to be represented by an Australian legal practitioner unless ordered otherwise: s 44(2).

3. The inquiry is not to be conducted in an adversarial manner: s 44(3).

4. Onus of proof does not rest on any particular party: s 44(4).

5. The court is to consider modification of the trial process or assistance provided to facilitate understanding and effective participation in the trial, the length and complexity of the trial and representation of the defendant: s 44(5).

6. A determination by the judge must include the principles of law applied by the judge and the finding of fact upon which the judge relied: s 44(6).

5. Mr Vosota is represented by an Australian legal practitioner.

6. Section 36 creates an explicit statutory test for fitness based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181 CLR 230.

7. Section 36(1) provides that a person will be unfit to be tried if, because they have a mental health or cognitive impairment; they cannot do one more of the following,

1. Understand the offence and the subject of the proceedings;

2. Plead to the charge;

3. Exercise the right to challenge jurors;

4. Understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged;

5. Follow the course of the proceedings so as to understand generally what is going on;

6. Understand the substantial effect of any evidence given against the person;

7. Make a defence or answer to the charge;

8. 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;

9. Decide what defence that person will rely on and make that decision known to the person’s legal representative in court.

8. The list is not exhaustive and does not limit the grounds on which a court may consider a person to be unfit to be tried for a defence: s 36(2).

THE EXPERT EVIDENCE

DR FURST:   

9. Dr Furst, forensic psychiatrist, assessed the accused by AVL from the Goulburn Correctional Centre on 28 April 2021. In formulating his opinions Dr Furst also had regard to the medical records of the accused from the Griffith Aboriginal Medical Centre and Justice Health. His report is dated 25 May 2021.

10. Dr Furst was of the opinion that the accused had been suffering from schizophrenia since 2013, being largely untreated/unmedicated over the last several years. In relation to the question of fitness of the accused for plea on trial, and taking into account the matters referred to in ss 36 and 44(5) of the Act, Dr Furst was of the following opinion,

“Superficially Mr Vosota appears to have sufficient understanding of the charges he is facing, his plea options and legal proceedings/the roles of legal actors in the court. He also has the capacity to attend to questions put to him during the interview and give apparently logical answers, and whether Mr Vosota suffers from a psych - schizophrenic illness having been observed to ramble, speak rapidly and speak in a manner that is difficult for his legal counsel to comprehend. Furthermore it is apparent Mr Vosota has no insight at all into his diagnosed schizophrenic illness. He is not receiving treatment with anti-psychotic medications and is prone to suffering from paranoid interpretation/delusions both at the time of the alleged offending and when talking about the alleged offending, such as stating that the victim was a criminal, was involved in organised crime and was somehow responsible and knew about an alleged break-in to Mr Vosota’s residence preceding the alleged offending.

Therefore I am of the opinion that Mr Vosota does not have sufficient mental capacity at the current time to properly instruct legal counsel to appreciate that his perceptions and interpretations of events at the time of the alleged offence on 5 September 2020 were likely driven by delusional thinking and would not raise mental illness in his defence. Accordingly the obvious defence in the circumstances placing him at a distinct and unfair disadvantage in criminal proceedings.

Accordingly I am of the opinion that Mr Vosota is not fit to be tried at the current time and requires further psychiatric treatment and assessment most likely through referral to the mental health screening unit at the MRRC in the first instance and/or referral to the Long Bay Hospital for further assessment and treatment, most likely involving the use of anti-psychotic medication and a forensic community treatment order.

It is difficult to determine at this time whether or not Mr Vosota will become fit to be tried within the next twelve months as this will largely depend on his response to treatment with anti-psychotic medication and the insights that he may or may not develop in relation to his illness and his legal proceedings, ie, his capacity to appreciate that he was likely paranoid/suffering from a mental illness at the time of the alleged offence, and that his thinking at the time was illogical. I would be happy to reassess Mr Vosota again at some stage within the next twelve months to provide a further opinion in this respect.

With respect to modifications at trial such provisions are more relevant in relation to people of low cognitive capacity whereas

Mr Vosota is of approximately average intelligence, his issues of unfitness relating more to mental illness/paranoid thinking than intellectual function. Therefore potential trial modifications would not overcome the identified problems in relation to his fitness at the current time”.

DR O’DEA:   

11. The ODPP requested Dr Jeremy O’Dea, forensic psychiatrist, to provide an opinion as to whether the accused was fit to stand trial or to enter a plea. He interviewed the accused on 25 August 2021 and provided his report on 9 September 2021. In formulating his opinions Dr O’Dea also had regard to the report of Dr Furst, the medical records of the Aboriginal Medical Service and Justice Health. Dr O’Dea also diagnosed the accused suffering from a severe chronic untreated schizophrenic illness that was current at the time of their interview.

12. As to fitness for trial to plead Dr O’Dea said,

“Whilst Mr Vosota was able to describe an account of the alleged offence, both in the ERISP and through our interview, he became readily disjointed and disorganised in his thinking as he did so, and as I asked him about the court proceedings, including the various pleas available to him and the various roles and responsibilities of various court officials involved in the court proceedings.

As above I considered that this significant cognitive impairment was directly related to his severe chronic untreated schizophrenic illness.

As such, and on the basis of this significant cognitive impairment, I would consider that Mr Vosota would find it significantly difficult to adequately and appropriately follow the course of the proceedings so as to instruct his solicitors and to make an adequate and appropriate defence to the charge. Furthermore the stress of potentially an extended trial would run the significant risk of exacerbating his schizophrenic illness further at this stage.

Therefore in taking into considerations Pt 4 of the New South Wales Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and the Presser criteria and R v Kesavarajah, I would consider that on balance Mr Vosota was not currently fit from a psychiatric perspective to be tried and to enter a plea. Due to the apparent nature and severity of his schizophrenic illness at the time of our assessment, and the apparent lack of treatment to that date, I would consider it appropriate that Mr Vosota be admitted to a secure forensic psychiatric facility under the provisions of the New South Wales Mental Health Cognitive Impairment Forensic Provisions Act 2020 for assertive and intensive psychiatric assessment treatment aimed at bringing his schizophrenic illness under better control.

With successful treatment as described Mr Vosota is likely to become fit from a psychiatric perspective to be tried within a twelve month timeframe”.

DETERMINATION

13. It is clear from the expert evidence that the accused is not currently fit to be tried and to enter a plea. In coming to this conclusion I have considered the statutory test for fitness as set out in s 36 of the Act. It is less clear if he will become fit for trial within twelve months.

14. On balance I am satisfied that during the next twelve months the accused may become fit to be tried for the offence.

ORDERS

1. I refer the accused person to the Mental Health Review Tribunal for a review: s 49(1)

2. I remand the accused in custody: s 47(2)(d).

3. The accused is to be transferred to a secure psychiatric facility for assessment and treatment: s 42(2)(e).

4. The reports of Drs Furst and O’Dea are to be served on the Commission for Corrective Services and Justice Health.

5. A copy of this judgment is to be forwarded to the Registrar of the Mental Health Review Tribunal, as well as the reports of Dr Furst and O’Dea.

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Decision last updated: 17 November 2021