New South Wales Supreme Court CITATION : Regina v Hemraj [2001] NSWSC 159 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70104/97 HEARING DATE(S) : 27-28/02/01, 2-2/03/01, 5-9/03/01, 12-14/03/01 JUDGMENT DATE : 14 March 2001 PARTIES : Regina Sunhil Dhiraj Hemraj JUDGMENT OF : Kirby J COUNSEL : B Smith (Crown) R Toner SC (Acc) SOLICITORS : Derek Lee - DPP (Crown) Crichton Browne Crossley (Acc) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Accused becoming unfit during the course of his trial - Fitness hearing - Discharge of Jury - Referral of accused to Mental Health Review Tribunal LEGISLATION CITED : Mental Health (Criminal Procedure) Act, 1990 CASES CITED : Regina v Presser [1958] VR 45 DECISION : Accused found to be unfit to be tried; Referred to the Mental Health Review Tribunal THE SUPREME COURT Extempore - Revised OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J Wednesday 14 March 2001 70104/97 - REGINA v Sunil Dhiraj HEMRAJ JUDGMENT 1 HIS HONOUR: Mr Hemraj Dhiraj Hemraj was charged with the murder of Michelle Danieletto, it being alleged by the Crown that he repeatedly struck the deceased with a hammer at the flat which they shared at Macquarie Place, Mortdale on 23 October 1996. 2 On 27 February 2001 Mr Hemraj was arraigned for murder and a plea was taken. He pleaded not guilty to murder. He indicated at the time of entering that plea that he was guilty of manslaughter on the basis of diminished responsibility. The matter proceeded upon that basis. 3 The Crown having opened, Mr Toner SC, on behalf of Mr Hemraj, gave a short opening to the jury in which he repeated that Mr Hemraj accepted that he had carried out the act which led to the death of the deceased, but that he had no recollection of having done so. 4 Mr Toner outlined that it would be the defence's contention that at the relevant time he was suffering from an abnormality of mind which substantially impaired his mental responsibility for his actions and that the jury should therefore ultimately return a verdict of guilty of manslaughter. The trial proceeded for a number of days. Various witnesses were examined by Mr Toner. In the course of cross examination, Mr Toner repeated the nature of the defence which the accused made to the charge, including the accused's acceptance that he had perpetrated the act which caused the death of the deceased. 5 The last witness for the Crown was Dr Wong. Dr Wong acknowledged that the behaviour of Mr Hemraj in the period between July and 2 October 1996 was, in some respects, bizarre. He, nonetheless, offered the view that at the relevant time (namely, 23 October 1996) Mr Hemraj was not suffering from an abnormality of mind and that the partial defence was not available to him. Specifically, Mr Hemraj was not, in his view, suffering from schizophrenia at that time, although it was likely that he later developed that disease. The Crown case then closed. 6 A medical witness was called on behalf of Mr Hemraj. He was called before Mr Hemraj gave evidence, simply because that witness came from New Zealand and was required to return to New Zealand at once. 7 On Sunday, 11 March 2001 the legal representatives of Mr Hemraj saw him in gaol. They did so for the purposes of preparing him to give evidence the following day. I gather from the affidavit provided by Mr Gourlie that it was evident to him that there had been some deterioration in Mr Hemraj's mental state. So far as he could discern, there had also been some change in Mr Hemraj's instructions. Whereas previously Mr Hemraj was prepared to accept that he had slain Michelle Danieletto, although he had no recollection of having done so, that was no longer his position. He believed rather, that if Dr Wong was right in the views that he expressed when giving evidence, then he truly was the victim of some conspiracy, as was Michelle. His statements to his solicitor suggested that he believed himself not guilty. 8 When the matter resumed on Monday, 12 March, counsel for Mr Hemraj tendered an affidavit from his instructing solicitor identifying remarks by Mr Hemraj which altered the instructions which had previously been given. Cousel indicated that an issue had arisen as to Mr Hemraj's mental state (cf s10(1) Mental Health (Criminal Procedure) Act, 1900) ("the Act"). A request was made that the matter stand down for the day so that Mr Hemraj could be examined by Dr Westmore. Dr Westmore had previously seen Mr Hemraj at the Bankstown Hospital Psychiatric Unit in 1998. He had subsequently provided a report on which the defence relied in respect of this trial. 9 Dr Westmore saw Mr Hemraj, as arranged, and provided a short report which included the following views: "He is insightless into the fact that he suffers a mental illness and is unable to consider the possibility of a mental illness defence being available to him. He states that he is not guilty of the charge and that he did not kill his girlfriend, Michelle, but then states that he would plead guilty to manslaughter on the basis that the police claim he did it. He states that the police interfered with evidence by placing blood on his clothes and that he is the victim of an elaborate conspiracy involving wealthy and influential people. Mr Hemraj continues to suffer auditory hallucinations of a persecutory type." 10 Dr Westmore continued: "He is not able, in my view, to provide consistent instructions to his solicitor, particularly in regard to the question of what plea should be entered. His understanding of the Presser issues is otherwise unimpaired." 11 Dr Westmore subsequently provided a more elaborate report on his examination amplifying that view. 12 In these circumstances when the court assembled yesterday, Tuesday, 13 March 2001, the jury was again sent away. Arrangements were made for Dr Milton to examine Mr Hemraj on behalf of the Crown. 13 Dr Milton provided a helpful report of 13 March 2001 in which he records his observations whilst interviewing Mr Hemraj. He ultimately reached the same view as Dr Westmore, that is that in many respects Mr Hemraj satisfied the test laid down by Smith J in Regina v Presser [1958] VR 45. However, in one important respect, namely the respect identified by Dr Westmore, Dr Milton likewise found that Mr Hemraj did not satisfy that test. The relevant portion of Dr Milton's report is in these terms: "I agree with Dr Westmore's views as expressed in the letter of 12 March 2000. Mr Hemraj fulfils all but the last of the Presser criteria. I, too, considered he was unfit to provide instructions to counsel in regard to his defence and hence there is doubt about his fitness to continue his trial. My perusal of the document suggests there is overwhelming evidence he was responsible for the death, but he is determined to disregard that and to instruct his solicitor to change the defence to one of not guilty, even if this means having another trial. I believe this to be irrational, a product of his psychosis." 14 The Court assembled today. Mr Hemraj, on advice, consents to my dealing with the issue of fitness as a Judge sitting alone (s11A Mental Health (Criminal Procedure) Act, 1990). The Crown also consents to that course. I have before me the affidavit of Mr Gourlie, as well as a number of medical reports, including the reports of Drs Westmore and Milton. 15 Accordingly it is plain, applying the test of unfitness, which the Act establishes, namely whether Mr Hemraj is unfit to stand trial on the balance of probabilities, that I must find that he is so unfit. 16 I, therefore, order that Mr Hemraj be referred to the Mental Health Review Tribunal. I must also discharge the jury which, of course, I will do tomorrow. I refuse bail and remand Mr Hemraj in custody for the time being, pending the execution of the order that I have made. ********** Last Modified: 03/15/2001 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. 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