The Queen v Imran Hakimi
[2011] ACTSC 55
•31 March 2011
THE QUEEN v IMRAN HAKIMI
[2011] ACTSC 55 (31 March 2011)
CRIMINAL PROCEDURE – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – accused assessed as fit to plead – need for interpreter – Crimes Act 1900 (ACT) s 311.
Crimes Act 1900 (ACT), ss 54(1), 311, 315, 315A
R v Rostom (2007) 98 SASR 528
Saraya v The Queen (1993) 70 A Crim R 515
R v Fisher [2011] ACTSC 56
Eastman v The Queen (2000) 203 CLR 1
No. SCC 52 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 31 March 2011
IN THE SUPREME COURT OF THE )
) No. SCC 52 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
IMRAN HAKIMI
ORDER
Judge: Refshauge J
Date: 31 March 2011
Place: Canberra
THE COURT FINDS THAT:
Imran Hakimi is fit to plead.
On 25 October 2010, Imran Hakimi appeared before Acting Justice Matthews when his trial was listed to proceed on an indictment containing one count, being a charge laid under s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act).
The court was advised that an issue had arisen about Mr Hakimi’s fitness to plead as he had suffered what was described as “a fundamental degradation of his mental capacity” over the previous week.
Her Honour, being satisfied that there was a real and substantial question about the fitness to plead of Mr Hakimi, gave directions under s 315 of the Crimes Act that Mr Hakimi be examined by a psychiatrist and an urgent assessment be prepared. The proceedings were adjourned to 16 November 2010.
On 16 November 2010, advice was received from Forensic Services, Mental Health ACT that an appointment had been made for Mr Hakimi to be examined by a psychiatrist on 30 November 2010. Accordingly, her Honour adjourned the proceedings into the Criminal Directions List on 9 December 2010 so that arrangements could be made for the investigation into Mr Hakimi’s fitness to plead under s 315A of the Crimes Act.
The proceedings came before me on 9 December 2010 and I noted that the Psychiatric Report prepared by Dr Graham George on 30 November 2010 was not a report on Mr Hakimi’s fitness to plead, but a Psychiatric Assessment, a mental health report.
That report did, however, conclude:
Mr Hakimi presents with symptoms suggestive of Chronic Post Traumatic Distress Disorder in association with elements of borderline personality disorder. He is also being treated for depression but it is difficult to know if he has a major depression or whether his depression is more reactive to his current circumstances. I would tend to favour the later hypothesis. Taking an antidepressant medication may help him and certainly would not harm him. I have diagnosed any other form of mental disorder or mental illness.
His cognitions generally appear intact. It may well be that times of stress he tends to dissociate so that he does not focus his attention due to his level of anxiety at various times. I believe that this would be a transitory type of phenomenon and should not impede his general understanding of his circumstances or environment.
Undoubtedly, he will need to remain under psychological care and also, the care of his general practitioner somewhat indefinitely until this current stressful situation of his life is resolved to some degree.
That, of course, reinforced the question about the level of mental disorder or impairment suffered by Mr Hakimi (see s 311 of the Crimes Act) which made a proper investigation necessary. Accordingly, I ordered that Mr Hakimi be examined by a psychiatrist for the purposes of assessing whether he was fit to plead.
Mr Hakimi was examined by Dr Graham George on 21 January 2011. Mr Hakimi was accompanied to that examination by an interpreter who spoke the native language of Afghanistan that was Mr Hakimi’s native language.
A copy of Dr George’s Report of that date was provided to the court. The Report was to be read with Dr George’s Report of 30 November 2010, which contained, inter alia, the historical and background material.
Dr George on that occasion had assessed Mr Hakimi with respect to the criteria set out in s 311 of the Crimes Act and his Report recorded his finding on this assessment. I deal with these below, by reference to the criteria specified in s 311.
Capacity to understand the nature of the charge(a)
Dr George summarised his examination and it was clear that Mr Hakimi was able to understand the nature of the charge.
Capacity to enter a plea and to exercise the right to challenge jurors or the jury(b)
Dr George reported that Mr Hakimi appeared adequately to understand the process of entering a plea and the consequences of it.
Dr George had to explain the concept of a jury to Mr Hakimi but he showed an understanding of this. Dr George then gave him a scenario with respect to challenging a juror and his response showed an understanding of this also.
Capacity to understand that the proceeding is an inquiry to determine whether he committed the offence(c)
Mr Hakimi appeared to have no difficulty with the matters encompassed in this criterion.
Capacity to follow the proceedings(d)
Dr George reported that Mr Hakimi had told him that he found it difficult to attend and concentrate and that his memory could fail him. He did say, however, that were he to have an interpreter, he would be able to cope.
Provision of an interpreter is an appropriate aid; indeed, an accused has a right to an interpreter to ensure that the accused is not only physically present, but able to understand the proceedings and the nature of the evidence: R v Rostom (2007) 98 SASR 528 (at 538-40; [44] to [49]); Saraya v The Queen (1993) 70 A Crim R 515 (at 516).
I have in R v Fisher [2011] ACTSC 56 (at [29] 10) referred to the need to take into account factors such as attention span when considering the fitness to plead of an accused. In that case (at [56] to [57]), I found the accused unfit to plead in part because of problems in this area. Mr Hakimi, however, was in quite a different situation. On the report of Dr George, I have no concern that such issues make Mr Hakimi unfit to plead.
Dr George was himself satisfied that Mr Hakimi has the capacity to follow the proceedings.
Capacity to understand the substantial effect of evidence presented(e)
Dr George seemed to approach this issue to which this criterion is addressed in terms that were more appropriate to criteria (c) and (d) rather than to this criterion. He did not, however, express any reservations about whether Mr Hakimi’s “mental capacity” was able to meet this criterion.
It seemed to me, however, he was addressing more the course and nature of the proceedings, the information in the Reports overall leaves me in no doubt that Mr Hakimi, with the assistance of an interpreter, could reasonably understand the substantial effect of the evidence presented by the prosecution.
Capacity to instruct his lawyers(f)
Dr George’s Report of his examination shows that Mr Hakimi was well able to instruct his lawyers.
Dr George did refer to his earlier diagnosis of Chronic Post Traumatic Stress Disorder. The associated symptoms as described were not of those which may interfere with Mr Hakimi’s participation in the trial and the level required for a fair trial, or, as put by Gaudron J in Eastman v The Queen (2000) 203 CLR 1 (at 21-2; [62]), a trial at all.
Dr George did note, in any event, that Mr Hakimi was “well supported in the community” and taking medication which has “tended to assuage... his symptoms”.
Dr George expressed the opinion that Mr Hakimi was fit to plead.
Neither the prosecution nor Mr Hakimi’s counsel sought to cross-examine Dr George. Neither did they make any submissions contrary to the opinion expressed by Dr George.
In the circumstances, I find Imran Hakimi fit to plead and will make appropriate consequential orders to give effect to that finding.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 March 2011
Counsel for the prosecution: Ms S McMurray
Solicitor for the prosecution: ACT Director of Public Prosecution
Counsel for the defendant: Mr James Sabharwal
Solicitor for the defendant: Mr M O’Brien
Date of hearing: 9 December 2010
Date of judgment: 31 March 2011
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