Supreme Court New South Wales Medium Neutral Citation: R v Coluccio [2020] NSWSC 855 Hearing dates: On the papers Decision date: 06 July 2020 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: 1. Mr Coluccio is unfit to be tried. 2. He is referred to the Mental Health Review Tribunal pursuant to s 14(1)(a) of the Mental Health (Forensic Provisions) Act. 3. The proceedings are adjourned pending the determination of the Mental Health Review Tribunal, pursuant to s 14(1)(b)(i). 4. Mr Coluccio is remanded in custody until any determination of the Mental Health Review Tribunal under s 16 is given effect. Catchwords: MENTAL HEALTH – criminal proceedings – fitness to be tried – Presser principles – consent of both parties – accused unfit to be tried Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 14, 16 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45 Category: Principal judgment Parties: Vincenzo Coluccio (Accused) Crown Representation: Counsel: R Wilson SC (Accused) J Sfinas (Crown) Solicitors: Legal Aid Commission Solicitor for Public Prosecutions File Number(s): 2019/38710 Judgment 1. HIS HONOUR: Mr Vincenzo Coluccio is 74 years old. He married his wife, Elia, in 1972. There are three children. It is alleged that on 4 February 2019, Mr Coluccio killed Elia by stabbing her with a kitchen knife while she was asleep on the lounge. He then washed the knife, washed his hands, and drove to Merrylands police station where he turned himself in. 2. Undoubtedly, this is a sad case. I humbly extend my sincere condolences to those who grieve the loss of Ms Elia Coluccio. 3. A question of Mr Coluccio's fitness to be tried has been raised. Both parties agree that he is unfit. Nevertheless, it has been necessary for there to be an inquiry pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act). 4. Expert reports have been tendered without objection. The Court has the additional assistance of written submissions on behalf of the Crown and by senior counsel for Mr Coluccio. Principles 1. In R v Presser [1958] VR 45 at 48, Smith J formulated the minimum standards an accused needs to meet in order to be fit to be tried: "He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 1. This test was embraced by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 245 (Mason CJ, Toohey and Gaudron JJ; Deane and Dawson JJ agreeing at 249); [1994] HCA 41. 2. The question of fitness is determined on the balance of probabilities: s 6 of the Act. Report of Dr Cantali 1. Dr Cantali, a psychologist, did not address the question of fitness but provided a report on the cognitive capacity of Mr Coluccio. She concluded that his cognitive ability was substantially impaired and that he suffered from a mild intellectual disability. Report of Dr Martin 1. Dr Martin, forensic psychiatrist, concluded that Mr Coluccio suffers from psychotic depression or alternatively schizophrenia. 2. Dr Martin opined that Mr Coluccio seemed confused as to whether his wife was alive or dead. He would have trouble following proceedings and giving instructions as a result of his mental illness. He would not be able to properly consider the defences open to him. His limited understanding would hamper his ability to challenge evidence or give evidence himself. 3. Dr Martin concluded that Mr Coluccio was unfit to plead and unfit to stand trial. Report of Professor Greenberg 1. Professor Greenberg, forensic psychiatrist, was provided (inter alia) with the reports of Dr Cantali and Dr Martin. 2. In his interview with Professor Greenberg, Mr Coluccio claimed that the deceased had been cheating on him and his children were mocking him. At one point, he told Professor Greenberg that the deceased was "setting him up". At other times, he appeared tearful and expressed remorse. 3. Mr Coluccio's brother disappeared in 1990. This appears to have been a catalyst for the deterioration of his mental health. He claimed that his brother was God, and said he could hear his brother's voice. 4. Professor Greenberg diagnosed Mr Coluccio with schizoaffective disorder, but found it unlikely that he suffered from an intellectual disability. 5. Although he understood the nature of the charge, Mr Coluccio did not comprehend any of the court proceedings; the roles of his lawyers, witnesses and the jury; the effect of evidence; and the defences open to him. Professor Greenberg thought that Mr Coluccio would have trouble instructing counsel and would be unable to give evidence. 6. Professor Greenberg concluded that Mr Coluccio is unfit to plead and unfit to stand trial. He also considered it unlikely that Mr Coluccio would become fit within the next year. Determination 1. There is compelling evidence that Mr Coluccio is unfit to stand trial. Although he understands the nature of the charges and can give a clinical account of what happened, it seems he experiences delusions and remains confused as to whether the deceased is actually dead. 2. I am not satisfied that Mr Coluccio is capable of following the trial, understanding the evidence or instructing his lawyers. 3. I am also not satisfied that he can comprehend the defences open to him. 4. On the basis of the uncontested evidence of the experts, I find that, on the balance of probabilities, Mr Vincenzo Coluccio is unfit to be tried. Orders 1. Accordingly, I make the following orders: 1. Mr Coluccio is unfit to be tried. 2. He is referred to the Mental Health Review Tribunal pursuant to s 14(1)(a) of the Mental Health (Forensic Provisions) Act. 3. The proceedings are adjourned pending the determination of the Mental Health Review Tribunal, pursuant to s 14(1)(b)(i). 4. Mr Coluccio is remanded in custody until any determination of the Mental Health Review Tribunal under s 16 is given effect. 5. The Supreme Court Registry is to provide copies of the following documents to the Mental Health Review Tribunal: a. This judgment; b. Report of Dr Rose Cantali dated 20 January 2020; c. Report of Dr Adam Martin dated 3 April 2020; d. Report of Professor David Greenberg dated 16 May 2020; and e. The Crown Case Statement. 1. In light of Mr Coluccio's advanced age and state of ill-health, it would be desirable for the Mental Health Review Tribunal to expedite its determination. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2020