Reported Decision : 7 DCLR (NSW) 158 New South Wales District Court CITATION: R v Chanthasaeng, Songsangkong [2008] NSWDC 122 HEARING DATE(S): 10/06/2008 JUDGMENT DATE: 11 June 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Application for order declining to conduct enquiry and dismiss charge - refused (para 37); Accused found unfit to be tried - referred to the Mental Health Review Tribunal. CATCHWORDS: Criminal Law - Fitness Hearing - Supply prohibited drugs - methylamphetamine - 30gms - crown case supply for financial gain - - crown case offence committed whilst on bail - application not to hold hearing and dismiss charge - applicable law - scope and function of s. 10 (4) MHCPA - applying s556A criteria to offence and offender - Presser criteria applied. LEGISLATION CITED: s.10 Mental Health (Criminal Procedure) Act 1990 R v Newman [2007] NSWCCA 103 DPP v Mills [2000] NSWCCA 326 CASES CITED: Queen v Presser [1958] VR 45 at 48 R v Mailes [2001] NSWCCA 155 R v Dennison NSWCCA 03/03/1988 PARTIES: Regina Songsagkong Chanthasaeng FILE NUMBER(S): 2008/11/0044 COUNSEL: T Bailey for Crown SOLICITORS: Mr T. Lynch L.A.C. for Accused JUDGMENT HIS HONOUR: Application to dismiss charge 1. Songsangkong Chanthasaeng is charged with two counts of supply prohibited drug, namely 30.2 grams of methylamphetamine and 7 grams of heroin. He is also charged in the alternative with being knowingly concerned with the supply of each drug. 2. The offences are said to have occurred on 27 July 2007. He was arrested in respect of these charges on 27 July 2007 and has been in remand custody since that date. When he was presented for arraignment the Court was informed that there was a question as to his unfitness to be tried. However, before that issue was determined I was invited, pursuant to s 10(4) Mental Health (Criminal Proceedings) Act 1990, to determine not to conduct an inquiry, dismiss the charge, and order his release. 3. The facts alleged by the Crown are these; police were patrolling south on Pennant Hills Road, Normanhurst at about 2.50am of 27 July. They were close to an intersection at Dartford Road. They observed an Hyundai Xcel parked in a carpark attached to Kenley Park, on Kenley Road, Normanhurst. As police drove past, the vehicle was seen to reverse quickly from the carpark, drive off in a northerly direction along Pennant Hills Road. Police became suspicious because that area is known to them for drug related offences. In observing the car they saw that there were two people in the car. The passenger was seen to look towards the police and move the back of his seat down so that he was lying down. Police facts allege that that was consistent with him trying to hide from them. It seems to me that jury may so find. Police turned and activated warning devices attempting to pull the vehicle over. At that time they were close behind the vehicle, and, as one can imagine, at ten to three in the morning there were no other vehicles on the road. The driver continued to drive slowly and accelerating erratically. Ultimately the vehicle came to a stop near the intersection of Pennant Hills and Buckingham Roads, Normanhurst. Police received some information via their computer and radio system. They approached the driver and spoke to him. At this time the accused, Mr Chanthasaeng, was lying on the passenger seat with it as flat as one can make it, not looking at the police. His hands were fidgeting, police say he was gaunt in appearance, and appeared to be nervous. 4. The driver's account to police was that they were waiting at the park to meet a friend but he was unable to give any further information about the address or name of the friend, or any directions on how to reach the street. Police then turned their attention to the passenger door of the vehicle. They noticed material in the car, particularly a cut cigarette package, consistent with equipment or being used for snorting illicit drugs. When Police spoke to the accused as to why he was there, his initial answer was that they were just going for a drive, that he was feeling depressed and wanted to go for a drive. Later he gave yet another account. There was a concession given to the police that he had previously been arrested on drug related matters, a fact not likely to go to the jury but nonetheless in these proceedings is not a matter that I need to pay much attention to. 5. He was asked numerous times whether there were any drugs or syringes in the vehicle. He said, "no, not that he could remember, but that friends had used the car and he could not be sure". He did not know whether there were drugs in the car. 6. He was asked if he was currently using drugs and he said that he used to do heroin and that he used to snort it. They conducted a personal search of him. There is no suggestion it was unlawful. Located in his bum-bag was a small aluminium foil and an aluminium tin with marihuana leaves printed on it. They examined again the cut cardboard cigarette box on the floor and came to a view that it could be used to snort drugs. 7. The accused offered that he was the owner of the vehicle and they commenced a search of the vehicle. They saw two cylindrical pieces of cardboard made from cigarette packaging and the accused conceded that those were used for snorting heroin. There was a small bottle, which police recognised as a consequence of their previous work that it was an intravenous drug use. Upon completing the search of the interior of the vehicle, they removed keys and used those keys to open the fuel cap compartment door. Located within that fuel cap area was a large resealable plastic bag folded a number of times and fitted above the fuel cap. Both this accused and the driver were questioned in respect of the resealable bags. 8. The accused indicated that it contained one ounce of ICE, and 7 grams of heroin. Both men were arrested and informed of the reason for their arrest. 9. They were asked a number of questions. The accused told police that the items that had been seized were drugs. The accused agreed to take part in an interview which was electronically recorded. He told police he owned the drugs and that they were secreted in the fuel cap area of the car. He then said that he was conveying the drugs to the Newcastle area for a drug syndicate in the Cabramatta area who, he believed, would harm him if he did not convey the drugs. 10. That would be of course the third account that police had of what the vehicle was doing when it was arrested - at least it was capable of being construed that way. He claimed that he was to be contacted by a syndicate when on the F3 freeway, and would receive instructions of where to drop off the drugs. He was unable to name, or would not name, identify or supply any contact detail for the persons. 11. The drugs were subsequently analysed. One is commonly known as ICE, and was weighed at 32.4 grams. The foil containing what was believed to be heroin was weighed and found to be 9 grams. He was then charged with the charges currently before me. 12. It is unclear on these facts whether the accused's companion has been charged or not. I have assumed for the purposes of these matters that he has not been charged. Given that the accused readily identified the quantity and identity of the drugs concealed, I am prepared to deal with this application that the Crown could have proved on the limited evidence available, that the accused was intending to supply some or all of those drugs in his possession in the Kenley Park carpark. The quantity of heroin captured by the police amounted to 7 grams when weighed without the foil, that is two times the trafficable quantity. The amount of methylamphetamine captured amounted to ten times the trafficable quantity, and five times the indictable quantity. The significance of that finding is that both drugs were of a sufficient quantity to be supplied to somebody who himself or herself could have been an on supplier. Indeed, if one thinks about the deeming provision it would have been the responsibility of the person being supplied with all of those drugs, to establish the contrary. That is particularly so in respect of the methylamphetamine. 13. For the purposes of this application I am prepared to accept the street value of the drug was approximately $16,000. What flows from this is that it would be difficult to resist an inference that the accused was supplying for financial gain even if he was also supplying to feed his own addiction. 14. Although the antecedents have not been tendered, I am prepared for the purposes of the application to assume the accused had the drugs in his possession for supply in circumstances when he was then on a charge of supply prohibited drugs that was making its way through the Local Courts and that he was on bail in respect of that charge when this conduct was uncovered. I have accepted for the purposes of the application that the accused has other encounters with police in respect of drug related offences. But what I do not have, and have not assumed, is that he has other encounters with the courts for the same matters. 15. I have accepted a Magistrate of the Local Court regarded these charges, as sufficiently serious as to refuse formally, or perhaps by consent, the grant of bail. 16. Section 10(4) of the Mental Health (Criminal Procedure) Act 1990 provides that "The Court may determine not to conduct an inquiry as to the unfitness of an accused in circumstances where it would be inappropriate to inflict any punishment, having regard to the trivial nature of the charge or offence, the nature of the person's disability, or any other matter the Court thinks proper to consider. Where a Court determines not to conduct an inquiry it may dismiss the charge and order the accused person to be released." 17. While the defence urged this is a proper case for such a determination and such orders, the Crown opposes that application. While certainly not determinative of the issue, the JIRS statistics for supply prohibited drug (amphetamines) less than the commercial quantity, for the higher courts provides a broad overview of penalty types for 770 cases. None of those cases received a s 10 dismissal, three received a s 10 bond, none received a s 10A conviction only, none of the cases received a sentence to the rising of the Court, only two were subject to a fine only, and eighteen were given a s 9 bond. Thus, less than three per cent received a sentence disposition less than a s 9 bond with supervision. 18. I accept that a s 10 discharge whether conditional upon entering a bond or outright, can be given in circumstances where the appropriate sentencing range can extend into monetary penalties, perhaps even community service orders and beyond. 19. Section 10(4) of the Mental Health (Criminal Procedure) Act was the subject of close examination as to its purpose, scope and proper interpretation, in a recent Court of Criminal Appeal case , Newman v Regina [2007] NSWCCA 103. The leading judgment was given by Chief Justice Spigelman, with Justices Bell and Price agreeing. His Honour said: " 34 …The purpose of the [ Mental Health (Criminal Procedure) Act 1990 ] is not in my opinion to provide "specific and flexible procedures for the disposal of offences committed by persons who have a cognitive or mental disability. The appellant's reference to the "diversionary/disability" purposes of the legislative scheme, is also in my opinion incorrect. Similarly it is not correct to infer that a focus "on disability" as distinct from a "focus on guilt" is required. I am unable to detect any such purposes in the legislative scheme. Finally the appellant's contention that the discretion is "broad" is likely to lead to error. The section confers a judicial discretion for specific purposes. 35 . The relevant part of the Act is concerned to establish a regime for the determination of criminal guilt or innocence in circumstances where normal criminal procedures could not apply by reason of the mental condition of an accused at the time of trial. It is incorrect to describe procedures as "diversionary" or as "flexible". They are alternative procedures designed to ensure that justice is done, having in mind the possibility of a person's unfitness to be tried. Justice must, however, be done not only to the accused but to the victim, bearing in mind the public interest in resolving allegations of criminal conduct. 36 . Section 10(4) is expressly directed to the appropriateness of the infliction of punishment. A judgment that punishment would be "inappropriate" leads to the result that the inquiry called for would not occur and the charge will be dismissed. Significant weight is to be attached to this consequence. A person charged with the crime will never be tried. 36. Section 10(4) is expressly directed to the appropriateness of the infliction of punishment. A judgment that punishment would be "inappropriate" leads to the result that the inquiry called for would not occur and the charge will be dismissed. Significant weight is to be attached to this consequence. A person charged with the crime will never be tried. 37. The use of the word "punishment" indicates, in my opinion, that what the parliament had in mind was an end result in which the person accused was in fact convicted, either expressly, or by special hearing, of the relevant offence. The section is not, in my opinion concerned with the possibility of a finding of not guilty, whether simplicita, or on the grounds of mental illness at the time of the offence. Nevertheless the result of the process is that the proceedings are dismissed without trial. 38 . I do not share any of the difficulties of interpretation identified by Maher JA in DPP v Mills [2000] NSWCCA 326….The two circumstances in which an issue of "punishment" arises can only be either as a result of conviction after normal trial, where the person has been found fit to plead, or as a result of a finding of guilty of the offence "on limited evidence available", following a special hearing within the meaning of s 22(1). The latter finding is identified in s 22(3) as a qualified finding of guilt. Upon such a finding a Court can determine under s 23 a limiting term of imprisonment or some other penalty or make any other order which the Court could have made "on conviction ...in a normal trial of criminal proceedings." 39 . In my opinion s 10(4) has in mind both situations. i.e. where a person is found fit to plead and is convicted and where the qualified hearing of guilt is made after a special hearing. The principal purpose of the subsection is to avoid the unnecessary delays, cost and complications of the special procedure which arises only in a case where an issue of unfitness to plead has arisen at or about the time of trial and which operates irrespective of whether or not any mental illness was pertinent at the time of the commission of the offence. 40 . The principal purpose of the fitness hearing is to facilitate the administration of criminal justice. The administration of criminal justice would be enhanced in any manner whether from the point of view of an accused or from that of a victim, or from the point of view of the public interest, if the considerable added expense and delay of a fitness hearing is to be undertaken in circumstances where the Court would, in any event, not inflict any punishment. 41 . The reference to "any punishment" in s 10(4) would in my opinion extend to the recording of a conviction which of itself without any additional penalty, has effects, such as the consequent effects on the prospects of employment, loss of licenses, or a range of statutory consequences and possibly public opprobrium…In my opinion the recording of a conviction is itself a "punishment" within s 10(4) of the Act. In any event it is well established that the orders of the Court after a special hearing constitute punishment… 42 . The formulation in s 10(4) is analogous to the long-standing formulation which permits a Court to dismiss a charge without recording a conviction, even where the charge is proved. This provision is now found in s 10 of the Crime Sentencing Procedure Act 1999. At the time s 10(4) of the Act was first enacted in 1983 as s 428F(5) of the Crimes Act 1900, the relevant section was 556A of the Crimes Act . 43. Section 556A relevantly state; "556A, where…the Court thinks the charge is proved but is of opinion that having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed it is expedient to inflict any punishment…the Court may without proceeding to conviction, make an order…dismissing the charge." 44 . The basic structure of s 10(4) and 556A is the same. In each case, relevantly the ultimate power of the Court is to dismiss the charge that has been or may be proven. The respective tests are equivalent. Further "inexpedient", is replaced by what may appear to be a more apposite terminology in the context of mental disability i.e. "inappropriate".The list of matters to which regard may be had overlaps considerably although the list in 556A has been shortened and a general but not unrestricted provision relating to "any other matter" inserted. 45 . Nevertheless in my opinion, the general approach adopted by s 556A and now s 10 of the Crimes (Sentencing Procedure) Act is the correct general approach to adopt for the purposes of s 10(4) of the Act. The task is to be conducted in anticipation of a finding of guilt by either of the two courses which can now flow from a fitness hearing - i.e., a normal criminal trial or a special hearing (citation and references omitted.) 46. "Section 10(4) requires the court to approach an application on the assumption of a finding of guilt, including a finding of qualified guilt and then to apply a similar range of considerations as now arise under s 10 of the Crimes (Sentencing Procedure) Act 1999. It permits the court to dismiss a charge without proceeding to a fitness hearing on the assumption there would be a finding of guilt if the matter did proceed to either a trial or special hearing. Where the court would not impose any punishment, including the element of punishment implicit in a conviction, then the proceedings should be dismissed in limine without the need for a fitness hearing." 20. Thus Newmanstands for the proposition that s 10(4) of the Mental Health (Criminal Procedure) Act is analogous to situations where a court is permitted to dismiss a charge and dismiss an offender without recording a conviction. Section 10 of the Crimes (Sentencing Procedure) Act and s 556A of the Crimes Act were given as examples. It may be convenient for the exercise of my discretion to have regard to the criteria in the now repealed s 556A for consideration of circumstances in which it is inappropriate to inflict any punishment. That is, having regard to character, antecedents, age, health or mental condition of the person charged or to the trivial nation of the offence, or to extenuating circumstances. 21. I should also note the Chief Justice's opinion that a conviction without more (see s 10A of the Crimes (Sentencing Procedure) Act) amounted to punishment. 22. The defence in this case concede the offence is not trivial. Indeed, there is authority that trafficking in prohibited drugs for financial gain, but for extraordinary circumstances, in a normal criminal trial result in imprisonment upon conviction (It should be noted that I am assuming guilt as required by Newman, rather than making a finding of fact, when I use the term "offence"). Given the quantity of drugs, in a normal criminal trial, a failure to imprison this accused may well be regarded as an appealable error. There is nothing in the evidence upon which I have been invited to make this determination that suggests there are any extenuating circumstances under which the offence was committed. 23. There is little I know of the character and antecedents of the accused. On the evidence before me he was on bail in respect of a charge of supplying prohibited drug. He has other dealings with police in respect of drugs. He has been sentenced to eight months imprisonment in respect of domestic violence offences. 24. He was, at the time of his arrest, a full-time student, although those studies have no doubt been interrupted by his being in remand custody. He was born in Thailand, came to Australia at the age of two. He achieved Year 11 in High School at the age of 17, but was expelled from school because of fighting. He is the eldest child in a family of four. He was raised in a loving family. He has worked as a salesman/factory worker. He has had one serious relationship lasting two and a half years, but in November 2006 that relationship appears to have come to an end. 25. There is nothing in the character or antecedents that sets this accused apart from others who stand or who have stood for trial, or as meriting a finding that it is inappropriate to impose any punishment. 26. At twenty-two years of age, there is nothing in the age of the accused - taken on its own - or in connection with any other criteria that merits a finding that it is inappropriate to impose any punishment. It is not clear from the material before me whether the accused would be relying upon a defence of mental illness. 27. As I understand Newman , I should assume a finding on the limited evidence that he committed the offence, as well as assuming after a normal trial there would be a finding of guilt. Such a finding can only then be predicated upon a recognition that a defence of mental illness would have failed. I have assumed as much. 28. That then leaves open the question of whether the mental condition of the accused at the time of the offence was such as to call it in aid in mitigation, in the commission of the offence, to an extent where it would be inappropriate to inflict any punishment. 29. I note that Dr Nielsen does speak of his mental condition as perhaps being a mitigating factor. As matters presently stand, though, there is otherwise a silence as to the state of the offender's medical health at the time of the offending from the other two medical experts. 30. There is material contained in submissions that would suggest severe depression at his separation from his de facto in November 2006. Strong suicidal ideation on occasions resulting in self-attempts on his life. There is an admission to Campbelltown Hospital on July 16. The complaint was an inability to sleep. The cause of that condition is not in evidence. Frankly, I cannot rule out that the absence of sleep may have been drug induced. 31. It is to be remembered ten days later the offender is dealing in ICE, a stimulant. Depression can also be a side effect of drug taking, and indeed of over use of alcohol. 32. Some of the hospitalisations give a history of the accused having consumed liquor prior to his admission. It would be inappropriate to mitigate punishment to a point where the Court regarded it as inappropriate to inflict any punishment, including a conviction, in circumstances where the consumption of drugs and/or alcohol had caused - or perhaps more likely, contributed to - the depression or mental health problem. Such a problem would be self inflicted or self exacerbated. 33. Inappropriateness of complete mitigation entitling a s 10 discharge would be particularly so if the self-induced mental health problem played no causative role in the offending conduct. On the evidence before me, a causative link has not been exposed. 34. Finally, the issue of the accused's mental illness at the time of the application for dismissal needs to be assessed to see what, if any, impact it has on the question of whether it is inappropriate to impose punishment. Indeed, that may well have been the intent of s 556A. As a general proposition, health issues can be called in aid to mitigate punishment. The greater the illness, all other things being equal, the greater the mitigation. Severe frailty, the near approaching of death, the enormity of handicap are all matters that may mitigate the imposition of punishment. 35. Whether though in a normal criminal trial the mitigation would extend to the level where the conviction was not made or recorded is, given the Court of Appeal's criminal attitude to drug trafficking for gain, unlikely in the extreme. It is to be remembered "conviction" is regarded as punishment. Likewise with mental health, the more profound, established, severe and incapacitating the symptoms, the more likely mitigation is to be achieved, but again in only extraordinary cases is it likely to create a complete mitigation so that punishment would be inappropriate. The symptoms disclosed by the psychiatrist in the accused's case do not reach such a degree of profoundness, incapacity of severity to render any punishment inappropriate. 36. For completeness, I record that I have also considered whether "any other matter" as set out in s 10 can be relied upon to argue that punishment is inappropriate. I have not found, nor has my attention been drawn to, "any other matter" that would make punishment inappropriate. 37. The application for an order declining to engage in the enquiry dismissing the charge and releasing the offender is refused. 38. The question of the accused's unfitness, having been raised, it now becomes necessary to conduct an inquiry to determine whether he may be unfit. The Crown has tendered the statement of facts earlier referred to as exhibit A, and Dr Allnutt's report, exhibit B, and this morning an updated report, exhibit B (2). The defence has tendered a sample letter written by the accused, exhibit 1, reports from Dr Olaf Nielssen, exhibit 2, and Dr Jonathan Carne, exhibit 3; and hospital records from Liverpool and Campbelltown Hospitals, exhibit 4. 39. The accused was represented at the hearing by Mr Lynch, a solicitor advocate with the Legal Aid Commission. The inquiry has been conducted in a non-adversarial manner. Indeed, the Crown position is that the accused is unfit. The Law 40. The court's task is to determine whether the accused is unfit to be tried. The reason the court is concerned as to whether an accused is unfit to be tried is because each person coming to be tried on a criminal matter must measure up to certain minimum standards of mental understanding and mental health. To try in criminal proceedings an accused who did not reach those minimum standards would result in an intolerable unfairness or injustice to him. 41. There are a number of matters I am required to assess. The starting point for my inquiry is a presumption that the accused is not unfit to be tried. Therefore, his unfitness is a matter which will need to be proved on the balance of probabilities. I also begin by presuming qualified and competent lawyers will legally represent the accused at any trial that may be required. The minimum standards that I am concerned with are not those needed for an accused to represent himself at trial. 42. The accused will be unfit to be tried where because of a mental defect or mental illness he fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. Queen v Presser [1958] VR 45 at 48. The question of an accused's unfitness to be tried is not limited to any unfitness by reason of mental illness or mental disorder, and is not to the exclusion of developmental or intellectual disability. R v Mailes [2000] NSWCCA 326. 43. The question of unfitness is not determined on the mental state of an accused at the time of the alleged offences. Whatever his mental state was then would not necessarily govern his fitness to be tried at the time of trial. The critical question to be resolved is upon the evidence of his state at the time of trial. R v Dennison NSWCCA 03/03/1988. An accused should be able to understand the nature and the alleged circumstances of the charges brought against him so he can formulate a proper plea to them. That would depend upon his capacity to understand the nature of the charges. 44. An accused should have a capacity to determine whether it is in his forensic interest to be tried by a judge sitting alone, (assuming the Crown would so consent), or by a jury. An accused should be capable of sensibly exercising his right to challenge a jury panel member from joining the jury. Challenging a potential juror requires firstly an understanding that each juror participates with others in determining whether the Crown has brought evidence sufficient to prove the charges beyond reasonable doubt. All this requires that an accused at least intuitively base his challenge upon the notion that he will leave on the jury persons he feels are likely to regard his case more favourably and strike off those potential jurors who feels are likely to regard his case less sympathetically. That is to say, his choice of jurors should at some level be related to his hoped for outcome of the case and not upon some matter unrelated to the outcome of the trial. 45. Challenging a potential juror requires a capacity to form a view that there may well be something about the appearance or presence of the potential juror to allow an accused to form a view he would prefer the jury deliberations be made by others not including the challenged jury panel member. Even thought the making of challenges can be delegated to counsel, it is important that an accused be able to exercise the challenges personally, so that in the event he felt the need to do so he could withdraw the delegation or indicate to counsel he did not agree with the proposed challenge or non­challenge prior to that opportunity to challenge passing. 46. An accused should be able to follow the course of the proceedings, so as to understand what is going on. That is, he will need to understand at some level the proceedings are a formal inquiry, conducted usually before a presiding judge and jury. If there is no jury, he will need to understand the judge is the tribunal of both fact and law. He will need to understand the prosecutor is charged with presenting evidence in support of the Crown allegations; that defence counsel is tasked with answering those allegations as best they can be answered. 47. He will understand the tribunal of fact, however constituted, is tasked with determining whether the prosecution has proved from the evidence in the trial the allegations made in the charges. In following the course of the proceedings, he will be able to follow the evidence. The accused must have at least a rudimentary understanding of the reception of evidence adverse to him, whether orally or by exhibits, and the effects of cross-examination. An accused must be capable of giving instructions to his legal representatives both prior to and during the trial, so that his lawyers can properly defend him in proceedings. 48. He must be able to decide what defence he will rely upon. He must be able to make out that defence, not in the sense of persuading a jury to accept it, but in the sense of articulating it so that his counsel and the court can understand it. He must be capable of articulating his defence so that he has a meaningful option as to whether he will enter the witness box, should he choose to do so. Put simply, he must be able to make his version of facts known to both his counsel and the court both through evidence of others and, should he wish, through his own evidence. This may require some assessment of his capacity to give evidence in chief and to submit himself to cross-examination. 49. Finally, an accused must be able to sustain his participation in the trial for its duration. 50. A person will be unfit to be tried where one or more of these matters is outside the capacity of the accused because of some mental defect or mental illness. The Evidence 51. Dr Allnutt in his report made the following observations. When speaking about what the accused had told him, in the history, Dr Allnutt noted the accused said: "The court is not listening to my side of the story. My defence is duress. The court is going to look at it, that there was temptation. I am reluctant to pursue this matter further." He would not go any further into the account with me at that stage. He then bought out a bunch of papers with a letter that he had written... He believed that there was a conspiracy against him. He said his father had died on 19 March 2008. Prior to going to the funeral, he thought the gaol was very 'nosy' towards him. On the day of his father's funeral, the gaol staff and welfare told him someone was going to 'knock me'. Welfare was concerned because someone was going to get him. He said they were putting a conspiracy by the way they were acting towards him. He believe that there was a conspiracy against him. 52. Dr Allnutt expressed an opinion, the relevant portions of which I now refer to. "In my opinion at this stage, it is, that currently your client manifests symptoms of a psychotic disorder, characterised by disorganised speech. In my opinion, he manifests a psychiatric disorder with psychotic features. I note that other clinicians have raised a diagnosis of bipolar affective disorder. I saw limited evidence in my interview with him.However he manifested thought disorder at the time that I saw him, and this could have affected the manner of his presentation to me. Having regard to the paranoid thoughts that he presented with when he saw me, his presentation to me was one of psychotic disorder with possible mood component. Re. fitness to stand trial: he manifests capacity to understand what he is charged with. In interview with me it appears he becomes easily preoccupied with probably irrelevant aspects of the charge. He has capacity to understand the general nature of the proceedings and the substantial effect of the evidence, but as with his understanding of the charges seems to be distracted by aspects of the proceedings and evidence that might not be relevant to his defence. He manifests capacity to plead to the charge but in my view given his thought disorder and preoccupation with aspects of his defence that are likely influenced by mental illness symptoms, his approach to his defence and decision making in that regard is, on balance, likely to be influenced by a disorganised mind. Based on my interview with him I would expect his representatives are having difficulty getting satisfactory instructions from him. With the assistance of counsel I believe he has the capacity to exercise his rights of challenge. He might have difficulty deciding on a plea. On balance I would regard him as unfit to stand trial. [His m]ental states fluctuate, and I will however endeavour to review him again in the next few weeks to clarify my view of his mental state of fitness at that time." 53. As I earlier remarked, an updated report has been provided. Dr Allnutt in this updated report says that: "I continue to be concerned that your client manifests symptoms consistent with a psychotic disorder, characterised by disorganisation in his thought process causing difficulties in communication. The nature of the diagnosis remains unclear to me at this stage. I note that the diagnosis has varied. In my opinion there is most likely a psychotic process. However, suffice to say that he manifests a mental disorder of a nature and severity that could impact upon the Presser criteria. I believe that your client has a capacity to understand what he was charged with. He was able to communicate what the allegations were, that he had - in possession of an indictable quantity of drugs. He had capacity to understand the general nature of the proceedings. He understood the roles of the various individuals in the court. He understood the purpose of the hearing. I believe he probably has capacity to exercise his right of challenge. He has capacity to understand the purposes of the challenge, and with assistance could probably achieve this. As a consequence of his thought disorder, I have concern about his capacity to understand the substantial effect of any evidence, to plead to the charge or to make hisdefence or answer to the charge. In particular I have a concern about his capacity to give instructions because of his communication problems and his tendency to become tangential. He probably would be able to let his counsel know his version of the facts and would be able to tell the court what it is, but those listening might find him somewhat confused and difficult to understand, would likely perceive his communication of those facts to the court (sic). In my opinion, there is some question about his capacity to decide what evidence he would rely upon, particularly having regard to the written documentation that relates particularly to the legal issues. Overall, I believe that the defendant should be regarded as unfit to stand trial. There has been a degree of improvement since my first interview with him. This suggests some improvement secondary to the medication he is receiving, which would support a prognosis of fitness within twelve months." 54. Dr Olaf Nielssen also reviewed the accused on this occasion for the defence. 55. He found: "Mr Chanthasaeng presented as a neatly groomed man of South-East Asian appearance with wiry build and heavily tattooed forearms. He had an intense state and seemed inappropriately cheerful during the interview. He spoke with a slight Asiatic accent, despite living most of his life in Australia. He spoke rapidly with a slight stammer. He gave a number of odd answers that seemed to miss the point of the question put to him and his written work was even stranger. The content of his speech was grandiose in the sense that he described his thinking as very clear and was able to see solutions to many of the world's problems. However he denied ever experiencing typical symptoms of psychotic illness and no distinctly delusional beliefs were elicited. Mr Chanthasaeng maintained attention, but his concentration was assessed to be mildly impaired. He was able to retrieve factual information quite promptly and his intellectual performance was assessed to be largely intact from his knowledge of the case and the current events. His premorbid intelligence was estimated to be within normal range. Mr Chanthasaeng gave a good account of the role of participants in a trial and the procedure following an adversarial trial. He was also assessed to be able to follow any proceedings in a general sense. However, it was difficult to assess the validity of his proposed defence, and whether the defence he said he planned to rely upon was affected by grandiose and unrealistic thinking associated with untreated hypomania." 56. The psychiatric diagnoses reached by Dr Nielssen was (1) bipolar disorder (manic-depressive illness) hypomania phase; and (2) a substance abuse disorder in remission. 57. On the question of the accused's unfitness, Dr Nielssen expressed the following opinion: "Mr Chanthasaeng demonstrated a good understanding of the charges, the nature of the proceedings and the procedure followed in an adversarial trial. However, I believe there is some doubt about his fitness for trial because he was thought to be hypomanic at the time of the recent assessment in a way that affected his judgment and his capacity to appraise his legal situation in a realistic way, or to give rational instructions about how to conduct his case. At the time of the recent assessment, I formed the view that Mr Chanthasaeng was unfit for trial. Mr Chanthasaeng has a condition for which treatment is readily available and he should become fit for trial within 12 months if he receives appropriate treatment. Any treatment would begin with the cessation of antidepressant medication which is known to trigger manic episodes in patients with bipolar disorder, and I advised Mr Chanthasaeng to speak to his doctor about ceasing the medication and starting treatment with a mood stabilising medication such as lithium or valproate." 58. Dr Jonathan Carne also reviewed the accused for the Legal Aid Commission. He made the following observations: "I found no evidence from my psychiatric assessment that at the time of the assessment Mr Chanthasaeng was suffering any symptoms of a mental illness. Particularly, there was no evidence of a psychotic illness of intoxication or of a mood disorder. There was no sign of an abnormally elevated or depressed mood. There was no sign of loss of insight or loss of contact with reality. From reading Mr Chanthasaeng's document 'Is There Justice', 'Is There a God', ' To Sydney Water' and 'To His Honour', the element of grandiosity in these reports suggests that at the time he wrote them, he may have been suffering from an elevated mood and that his grasp of reality may have been fragile, or that the reports were written at the time when he was affected by alcohol or stimulant drugs. Similarly, in my review of the file note by Louise Jardim on 23 November 2007, suggested that at the time Mr Chanthasaeng would have been suffering from symptoms of a psychotic illness and delusions of reference (where the individual expresses the belief that the television is directly referring to things in his life). However, when I interviewed Mr Chanthasaeng about this on 12 December, he gave me a rational explanation for the observations made by Ms Jardim. In summary, therefore, it is possible that Mr Chanthasaeng has at times suffered an abnormally elevated mood, whether from mental illness such as the manic phase of a bipolar disorder or as the result of intoxication from recreational drugs or alcohol. From his account of events to me, there was no evidence that at the time of the alleged offence, he was mentally ill as defined in the M'naghten rules. Similarly, at the time of my assessment of him, there was no evidence that Mr Chanthasaeng was unfit to stand trial according to the Presser criteria. I formed the impression that he was aware of the charges against him and the nature of the court proceedings, that he would be able to follow evidence, decide on his defence, and offer his version of facts to his counsel and the court. I would add only the qualification that if it transpires that Mr Chanthasaeng does suffer from a mental illness as he has in the past, his mood may alter under the stress of the trial, which might affect his ability to participate, hence he would benefit from a repeat psychiatric assessment during the course of the trial if his mental state appears to deteriorate." 59. Finally, I have regard to a document entitled 'Please Help'. There is a note in handwriting in respect of this document on the upper right-hand margin, "Client gave this document to Nathan Steele and KR on 17/04/08 before mention. He advised he had sent it to the High Court." And that note is dated 17/04/08. I only read parts of the document. It is two pages in length. "It's injustice of me being in custody for the crime I didn't attend to do in the line or duress that the NSW Police put me through. The drug offence on 27/07/2007 is what I stand trial for. I've received an injustice treatment for two earlier matters which I bite my tongue and walk away... I've been going through natural therapy to over come severe depression and anxiety left by the miss conduct of the NSW Police who miss behave towards me. That's now left my life in danger of self harm and UN meaningful thoughts of not knowing who's after me. I received an injustice treatment since day one. All three cases that occurred in 2007 has a moral that ends with an injustice treatment towards me. It's backed up by strong facts, not alligations. I stand by rights to have a fair trial; the more they delaying my court case, I'm losing the plot and my memory. Anger of not being able to prove my innocents is getting to my head. I don't know how long I can hold it for the prosecutor's indictment is all true. Duress existed and has warned by the Police Integrity Commission along with the NSW Ombudsman in June 2007, one month before I was arrested. During the process of calling for help, I have written a diary in June which is a statement Address to the media and Royal Commission, stating my traumatised mind and the un-meaningful relationship that the police put me through. I have no assistance when an attempt to avoid matters that was out of reached. That's why the crime was conducted in an UN willing way. Not even the police or higher commission can help. FINDINGS 60. I am satisfied that the accused is suffering from a mental illness, however described. Dr Allnutt, who expresses a desire to review the accused a second time in his first report, diagnosed a psychotic disorder with psychotic features. He noted thought disorder and paranoid thinking. Dr Allnutt recognised the possibility of a mood component to the psychotic disorder. There is nothing said in the second report that really takes Dr Allnutt away from those initial findings. He does speak of a psychotic process and "thought disorder" in his second report. 61. Dr Nielssen noted an abnormally elevated mood, grandiosity in contrast to earlier periods of anxiety and depression, hence his diagnosis of bipolar disorder. Dr Nielssen diagnosed hypomania at the time of his assessment that would impact upon the accused's judgment and capacity to appreciate his legal situation or give rational instructions. 62. Dr Carne was not prepared to diagnose a mental illness. He noted no sign of abnormally elevated or depressed mood. However, he did recognise the accused's mood may alter with the stress of a trial. I see nothing inconsistent between Dr Carne's opinion and Dr Nielssen's diagnosis. After all, that is what bipolar disorder is, a fluctuation of mood. 63. I am satisfied from reading the accused's letter to the High Court there is thought disorder and a misconception of that court's role in the criminal justice system. I am also satisfied that the accused, as a consequence of that thought disorder, would have difficulty in instructing his solicitors and articulating his defence. 64. From the evidence before the court, it would appear the accused understands the nature and alleged circumstances of the charge brought against him. However, he may have morphed into those circumstances some of the paranoid ideas observed by Dr Allnutt. In speaking about this trial, the accused said, for instance: "...the prosecutor's indictment is all true, duress existed and was warned by the Police Integrity Commission along with the NSW Ombudsman in June 2007, one month before I was arrested." If those thoughts are connected with his potential defence, it seems to me that there is some paranoia being morphed into the defence. 65. I am not satisfied he has the necessary capacity to determine whether he should be tried by a judge alone or by a jury. Nor am I satisfied he is capable of sensibly challenging the jurors. I note that Dr Carne makes no reference to this particular criteria. 66. The accused's thought processes have a paranoid and conspiratorial flavour to them. There is a real chance that the jurors or a judge alone would become incorporated into his paranoid conspiratorial thinking during the course of the trial, if not before. He is capable of observing what is happening in the court, capable of understanding the evidence led for and against him, however his paranoid/conspiratorial thinking is likely to give to that evidence a skewed impact as the evidence and witnesses become incorporated into his present thinking and disordered thoughts. 67. I am satisfied the accused is unable to make out his defence or to instruct his solicitors. A reading of his letter to the High Court is compelling testimony of his inability to articulate any defence that could be understood by a jury or to convey sensible instructions in relation to the real past history. The evidence satisfies me on the balance of probabilities that the accused is unfit to be tried. 0O0 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.