R v Graf [2020] NSWSC 1419

Supreme Court New South Wales

Medium Neutral Citation: R v Graf [2020] NSWSC 1419 Hearing dates: 13 October 2020 Decision date: 15 October 2020 Jurisdiction: Common Law Before: Hidden AJ Decision: 1. Not guilty by reason of mental illness. 2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be detained at Long Bay Hospital, or such other place as may be determined by the Mental Health Review Tribunal, until released by due process of law. Catchwords: CRIMINAL LAW – murder – accused killing his father – defence of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 38, 39 Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 Kesavarajah v The Queen (1994) 181 CLR 230 R v Graf [2019] NSWSC 1767 R v Porter (1933) 55 CLR 182 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina (Crown) James Patrick Graf (Accused) Representation: Counsel: Mr Sean Hughes (Crown) Mr Ian Nash (Accused)

Solicitors: Office of Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2018/253065 Publication restriction: Nil

Judgment 1. On 16 August 2018, the accused, James Patrick Graf, was charged with the murder of his father, Lance Graf, at the home at which they were living in Gol Gol, a town in southern New South Wales near the Victorian border. In due course he was committed to this court for trial. 2. As will be seen, the accused has a long history of mental illness and an established diagnosis of schizophrenia. An issue arose as to his fitness to stand trial, and on 9 December 2019 that issue was tried before Hamill J: R v Graf [2019] NSWSC 1767. His Honour received the reports of two respected forensic psychiatrists: Dr Sathish Dayalan, retained on behalf of the accused, and Dr Yvonne Skinner, retained by the Crown. In a report of 1 April 2019, Dr Dayalan expressed the view that the accused was not fit to stand trial. Dr Skinner arrived at the same view, expressed in a report of 16 August 2019. 3. There was subsequently some improvement in the accused's condition while in custody, such that he appeared to have become fit. However, in late November there was a marked deterioration in his condition. Before Hamill J Dr Dayalan and Dr Skinner gave evidence confirming their original view that he was unfit, as did his treating psychiatrist, Dr Reading. That was his Honour's conclusion in his judgment of 9 December 2019. 4. In the course of that judgment, at [12]-[13], his Honour referred to the well established authority on the issue of fitness: R v Presser [1958] VR 45 at 48 and Kesavarajah v The Queen (1994) 181 CLR 230. His Honour was satisfied that the accused understood that he was charged with the murder of his father. However, he was doubtful that he had the capacity to understand the court procedures and the nature of the proceedings. His Honour also doubted that he had the ability to understand the substantial effect of evidence against him and was satisfied that his capacity to make out his defence and to instruct his legal representatives was "severely compromised": [25]-[26]. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), his Honour referred the accused to the Mental Health Review Tribunal and remanded him in custody. 5. At a review that same month, the Mental Health Review Tribunal directed that the accused be transferred from the unit where he was being held to Long Bay Hospital for care and treatment. That placement and treatment proved to be beneficial, such that at a further review on 19 June 2020, the Tribunal determined that he had become fit to be tried. The Tribunal received evidence of his progress under treatment by Dr Reznik and his registrar, Dr Chowdhury. 6. The Tribunal reported as follows: On 19 May 2020, Mr Graf's fitness to stand trial was assessed by Dr Chowdhury and Dr Reznik. Mr Graf clearly understood the charges and the pleas available to him. He had a good general understanding of the roles of the Judge, prosecution, defence and jury. Mr Graf felt that he would be able to follow proceedings in court and instruct his legal team. He was able to explain to his treating psychiatrists his role in the death of his father. Dr Chowdhury said that Mr Graf's interview was a long one and he was able to maintain good concentration. Dr Chowdhury noted that Mr Graf is prescribed three medications for his mental health. It is likely that his mental health will continue to improve, with consistent medication compliance. By the time of a trial, his mental health may have improved further. Dr Chowdhury was asked by the Tribunal whether Mr Graf's mental health would be unsettled by a trial that would necessarily focus on his father and the circumstances of his father's death. Dr Chowdhury said that he thought that Mr Graf would be able to cope with this stress. From the observations that the Tribunal was able to make in its video link hearing, Mr Graf appeared to follow the Tribunal's discussion and respond appropriately to questions when asked. He did not appear distressed. Although shorter and less detailed than a trial, the discussion at the Tribunal hearing did cover the topics of Mr Graf's mental health and his father's death. 1. In accordance with the relevant provisions of the Mental Health (Forensic Provisions) Act, the Tribunal notified the court of its determination and the matter came before me two days ago, on 13 October 2020. 2. In further recent reports, Dr Dayalan and Dr Skinner also concluded that the accused is now fit. Dr Dayalan interviewed the accused on 4 September 2020 and, in a report of 11 September, found that he understood the nature of the charge, and was able to identify his plea and to give a rational reason for his decision. The doctor considered that he would have the ability to follow the court proceedings in a general sense and understand the significance of evidence presented against him, although he may need regular breaks during the proceedings so that his counsel could "explain and repeat key information". The doctor observed that at the interview his thinking process did not appear to be significantly impaired by his psychotic illness, he was able to demonstrate logic in his reasoning, and would be considered to have "sufficient capacity to decide on a defence". 3. Dr Skinner interviewed the accused on 17 September 2020, and provided a report of 25 September. The doctor reported that during her interview he was able to engage in reasonable conversation and showed no signs of psychosis. She raised the issue of his ability to cope with the stress of a trial, noting that he would likely be distressed by the material presented and might require additional medication in the event of a prolonged trial. Nevertheless, she noted that he had confidence in his legal representatives and believed that, with assistance from his treating doctors and those legal representatives, he is "fit to plead and to stand trial". 4. Dr Skinner concluded: Mr Graf is capable of entering a plea to the charge. He has some general understanding of the court proceedings and he reports that he has discussed these issues with his solicitor. He was aware of the functions of officers of the court. I think he would be able to understand the substantial effect of evidence from the prosecution and he could be assisted by explanation given by his legal counsel. I believe he is capable of making a defence or answering the charges against him. 1. I am satisfied that the accused is fit to stand trial, and I announced that finding on 13 October.