New South Wales Supreme Court CITATION : REGINA v Saverio QUATTRONE [2001] NSWSC 856 FILE NUMBER(S) : SC 70044/01 HEARING DATE(S) : 24/09/01 JUDGMENT DATE : 24 September 2001 PARTIES : Regina Saverio QUATTRONE (Accused) JUDGMENT OF : Bell J at 1 COUNSEL : P.S. Dare (Crown) D.A. Bertini (Accused) SOLICITORS : SE O'Connor (Crown) Galluzzo Golotta Andriano Simone Solicitors and Barristers (Accused) CATCHWORDS : Fitness for trial Bail Act 1978 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 (NSW) Solicitor General Act 1969 R v Dennison (unreported) NSWCCA 3 March 1988 CASES CITED : R v Presser (1988) VR 45 The Queen v Mifsud (unreported), 8 November 1995 DECISION : Accused is referred to the Mental Health Review Tribunal, he being unfit to be tried ; The accused's present conditional bail is continued IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 770044/01 Bell J Monday, 24 September 2001 REGINA -v- Saviero QUATTRONE Judgment 1 HER HONOUR: This is an enquiry pursuant to s 10 of the Mental Health (Criminal Procedure) Act 1990 (NSW) ("the Act") into the question of whether Saverio Quattrone is unfit to be tried. It is alleged by the Crown that the accused murdered his wife Natalina Quattrone on 18 May 1999 at Bossley Park. 2 In this case, the Attorney-General has determined that an inquiry into the accused's fitness to stand trial should be conducted before the hearing of the proceedings pursuant to s 8(1) of the Act. A determination to this effect by the Acting Solicitor General dated 21 September 2001 is in evidence before me. That document recites that pursuant to s 4 of the Solicitor General Act 1969, the Attorney General has, by instrument dated 4 December 1995, delegated to the Solicitor General his power under s 8 of the Act to make such a determination. 3 The accused has elected pursuant to s 11A(1) of the Act for the question of his unfitness to be tried to be determined by judge alone. His election records that prior to making it, he sought and received advice from his barrister and solicitor. It is necessary that I be satisfied of this matter before I might proceed to conduct an inquiry without a jury. In The Queen v Mifsud (unreported), 8 November 1995, Gleeson CJ (in a judgment with which Levine and Dowd JJ agreed) observed of s 11A of the Act: "This section is concerned with the making of an election by a person whose fitness to be tried is in question because of some mental disorder. For such a person to make an effective election requires that the person understands what he or she is doing. The person must be able to understand what is involved in such an election. In addition, the judge must be satisfied that the person before making the election sought and received advice in relation to the election from a barrister or solicitor. In practice, of course, there will ordinarily be a close relationship between the question whether the person has sought and received advice in relation to the election and the question whether the person is capable of understanding and understands what is involved in the making of an election. The requirement that the legal advice be 'sought and received' does not mean that the person must take the initiative in obtaining legal advice. On the other hand, it is not sufficient that a barrister or solicitor merely tenders advice which may or may not be understood by the person to whom it is tendered. What is required is that the person should be willing to be advised on the matter and should understand the advice that is tendered." 4 The applicant relies on the affidavit of John Joseph Andriano sworn on 23 September 2001, which annexes a report of Dr Olav Neilssen, psychiatrist, dated 10 September 2001. Dr Neilssen expresses the opinion that the accused has the capacity to elect to have the proceedings heard by judge alone. Dr Neilssen's opinion is based on the accused's presentation and responses at an interview conducted with him on 4 June 2001. 5 Mr Andriano is the solicitor retained on behalf of the accused. In his affidavit, he sets out that on 17 September 2001 he conferred with the accused, together with Mr Bertini of counsel. The accused's son, Frank Quattrone, was present at this conference and acted as an interpreter from the English language to the Calabrian language. It is to be noted that Mr Andriano is himself familiar with the Calabrian language. 6 Relevantly, in paragraph 5 of his affidavit, Mr Andriano details the advice given by Mr Bertini to the accused concerning these proceedings. It is to be noted that Mr Bertini explained to the accused: "If a jury hears the case, then the medical evidence and any other evidence in the case is presented to the jury. The jury is then told by the judge how it is to apply the evidence. The jury then considers the evidence and decides whether you are fit or unfit to be tried. If a judge hears the case, then he or she receives all the evidence and a judge alone decides whether you are fit or unfit based on the evidence. Do you understand what I am saying?" Mr Quattrone replied, "Yes". Mr Bertini went on in the course of the conference to explain: "You can elect to have a judge decide the question by his or herself or you can decide that you want a jury made up of twelve members of the public to decide. Do you understand that?" The accused replied: "I am happy to have one person, the judge, hear the case." 7 In the light of the report of Dr Neilssen of 10 September 2001 and the contents of the affidavit of Mr Andriano, I am satisfied that the requirements of s 11A of the Act have been met in the sense not only that the accused sought and received advice but also that he had the capacity to make an election based upon that advice. 8 An election pursuant to s 11A(1) of the Act may only be made with the consent of the Prosecutor. That consent has been given. 9 The provisions of s 12 of the Act govern the conduct of an inquiry. The accused is to be represented by counsel or a solicitor unless the Court otherwise allows. The accused is represented by Mr Bertini of counsel. An inquiry is not to be conducted in an adversary manner. The onus of proof of the person's unfitness to be tried does not rest on either party to the proceedings. 10 I turn now to the evidence tendered before me on the inquiry. By consent, the reports of Dr Neilssen of 19 June 2000, 3 July 2001 and 10 September 2001 together with the report of Dr Westmore, psychiatrist, of 6 September 2001 are in evidence before me. Dr Westmore was retained by the Crown. Dr Neilssen prepared his reports at the request of the solicitors retained for the accused. Neither doctor was required for cross-examination. 11 Dr Neilssen first interviewed the accused at his rooms on 28 April 2000. He had the assistance of an Italian interpreter. Prior to that conference, Dr Neilssen was supplied with the police brief of evidence, the transcript of an electronically recorded interview between police and the accused conducted on 18 May 1999, the post mortem report of Dr Langlois, together with other materials, including, importantly, statements made by the accused's son Frank and daughter Sara. He was also supplied with copies of medical notes relating to the accused's treatment at Liverpool Hospital between 5 June 1999 and 18 June 1999, letters sent to the accused's treating doctor, Dr Genua, from aged care psychiatrists who had reviewed him at the Braeside Hospital (Professor Williams and Dr McKay). Dr Neilssen spoke with Dr Genua and with Professor Williams prior to his consultation with the accused. 12 Dr Neilssen had a further consultation with the accused on 4 June 2001. The accused was accompanied by his son Frank on both occasions. The accused is aged 72 years. 13 Dr Neilssen obtained some relevant background history at the initial consultation. Much of this material was provided by Frank Quattrone. At the date of the death of Natalina Quattrone, Frank reported that his father had been fine. He was not suffering any obvious memory problems, although, as he grew older, he appeared to be a little slower in his thinking. He had not suffered any form of anxiety disorder or depression, nor had he received treatment of any kind for psychiatric disorder. 14 It appears that Mrs Quattrone developed some form of mental illness twelve or thirteen years before her death. Her difficulties commenced following a course of chemotherapy. She became severely depressed and experienced auditory hallucinations and was possessed of certain delusional beliefs. She spent two or three weeks in Rydalmere Hospital during the first such episode. Following her discharge, she was well for several years, but then her condition deteriorated and she experienced bouts of psychotic illness. Frank Quattrone reported that his mother was often violent and that the police had been called to help settle her on occasions. She had several involuntary admissions to the psychiatric ward of Liverpool Hospital. 15 In April 1999, the accused suffered a heart attack and was admitted to Liverpool Hospital. He recovered and was discharged after a week. Frank Quattrone reported no change in his father's mental state following his discharge from hospital. 16 The first that Frank Quattrone knew of his mother's death was when he received a telephone call from his father in a distressed state. The accused gave an incoherent account of the events. Frank Quattrone made contact with the family solicitor and attended at the police station. His father was subsequently released on bail and he has remained on bail continuously since that time. 17 The week following the death of Natalina Quattrone, the accused's brother died suddenly of a heart attack. Frank Quattrone reported that his father had been very close to his brother. The brother had lived a block away. It was Frank Quattrone's belief that his uncle's death had "tipped dad over the edge". 18 The weekend following the brother's death, the accused was found unconscious in the car park of a local shopping centre. It appears he had consumed a variety of medications and a bottle of pesticide. He was admitted to the Intensive Care Unit at Liverpool Hospital. He remained unconscious for three to four weeks following this episode. He was transferred to Fairfield Hospital and thereafter to the Braeside Hospital where he spent a further three months. 19 Frank Quattrone reported that his father had not been the same after he regained consciousness following the suicide attempt. He said that his father's memory had been severely affected and that he often forgot that his wife had died and asked after her. He appeared to be anxious and disoriented when outside the home. Mr Quattrone reported that his father appeared very depressed at times and was occasionally seen to be in tears. 20 He described his father as spending most of the time watching television at home, but being unable to remember or discuss what he had viewed. The accused was able to live independently because both Frank and his sister Sara visited him daily and attended to his needs. 21 At the initial interview, Dr Neilssen observed that the accused was obviously confused by the interview situation. His affect was unreactive and he looked around the room in a distracted way without curiosity. Dr Neilssen observed that he was very slow to respond to all questions asked of him and, on occasions, he seemed to answer questions with a negative response because he was unable to muster the mental effort to answer more fully. He did not appear to confabulate in order to cover gaps in memory. In fact, he appeared reluctant to guess or to estimate. 22 Dr Neilssen confirmed that the accused had been admitted to Liverpool Hospital following an overdose. Toxicology results showed that he had consumed a variety of tablets as well as insecticide. Consultation with the treating doctor confirmed that the accused's memory problems appeared constant and that he exhibited an inability to retain information. 23 Correspondence cited from Dr McKay showed that the accused had been treated with antidepressant medication following his discharge from Braeside Hospital but that this had been discontinued after a relatively short period. Dr Neilssen reported that Professor Williams was of the view that the accused had suffered a form of organic brain damage as the result of the serious incident of self-poisoning. Neuropsychological testing performed at the Braeside Hospital was inconclusive, as the tests did not clearly identify the accused's cognitive problems as the result of brain damage as distinct from depression or apathy. Professor Williams reported that the antidepressant medication had not been persisted with in the light of very strong family resistance to treatment of this kind. 24 At the date of his first report, Dr Neilssen considered the accused to be suffering from toxic brain damage. However, he offered as an alternative diagnosis, pseudo dementia due to severe depression. In this respect, Dr Neilssen noted that features of the accused's presentation were consistent with depression. The significance of the latter diagnosis was that it may be reversible with treatment. 25 It was Dr Neilssen's opinion as at June 2000 that the accused was unfit for trial because he would be unable to understand the nature of the trial, to follow the proceedings or to give meaningful instructions. Dr Neilssen considered that the accused would require a full trial of treatment for depression before it would be possible to tell whether he was permanently unfit for trial. In this respect, Dr Neilssen noted that the accused would be more likely to respond positively to treatment for depression in a community setting rather than in a secure hospital. 26 Dr Neilssen saw the accused again on 4 June 2001. On that occasion, the accused did not appear to be as depressed as he had been at the initial consultation. His speech was more fluent and spontaneous and he was able to answer a greater number of questions. He displayed almost no knowledge of current events. Dr Neilssen observed that the accused was perplexed and distressed when testing exposed serious memory impairment. 27 During the course of that second consultation, the accused was not able to explain the function of a jury in a trial. He did not respond to suggestions put to him on this topic. He said that the judge decides if you are guilty or innocent. He was not able to recognise the term prosecutor even when it was put to him in his own dialect. He understood that "the police are against me" and that his solicitor was "to help me", but he was unable to explain how. He understood that an oath required that he tell the truth. 28 Frank Quattrone reported during the course of this second consultation that his father's mood had improved a little in the last year, but that there had been no associated improvement in memory. 29 It appears the accused suffered a further heart attack in November 2000 and underwent open-heart surgery in December. 30 Significantly, in the period between the first and second consultations, the accused had been placed on a course of antidepressant medication. Dr Neilssen noted that the accused appeared more animated and that he showed no evidence of depressed mood when he interviewed him in June 2001. In Dr Neilssen's opinion, expressed in the July 2001 report, the accused's cognitive impairment was clearly the result of toxic brain damage. Dr Neilssen noted: "His performance at interview was consistent with the presence of dementia as he demonstrated consistent impairment in all areas of cognitive performance." 31 It is Dr Neilssen's opinion that the accused is permanently unfit for trial. He describes him as having a vague understanding of the nature of an adversarial trial. He says that the accused would not be able to understand or retain information about the proceedings in court, or give instructions to his solicitor. 32 Dr Westmore examined the accused on 3 August 2001, assisted by an Italian-speaking interpreter. Dr Westmore noted the contents of both reports prepared by Dr Neilssen. Dr Westmore concluded that the accused is a man suffering from an organic brain disorder secondary to an incident where he took an overdose of a toxic substance. It is Dr Westmore's opinion that the accused is unfit to be tried and that he does not meet the "Presser tests" in that his permanent cognitive difficulties would prevent him from instructing his solicitors following the course of the trial and giving evidence on his own behalf. 33 The question of fitness for trial relates to the mental condition of the accused at the time of trial. In R v Dennison (unreported) NSWCCA 3 March 1988, Street CJ (in a judgment with which Carruthers and Finley JJ agreed) said: "The question on the trial of unfitness to plead relates not to the mental state at the time of, or recall of the events constituting, the crime. It relates to the then current mental state of the appellant, that is to say, his state at the time of the trial itself. The question of unfitness turns upon an evaluation of the capacity of the prisoner concerned at the trial to understand the proceedings, to be able to give instructions, to be able to formulate his plea to the charge against him and to follow to a sufficient extent what is actually taking place at the trial". 34 The classic formulation of the test as to fitness for trial remains that set out in R v Presser (1988) VR 45 at 48: "And the question I consider is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. 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 the nature of the proceedings, namely, that it is an enquiry as to 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." 35 In the light of the unchallenged opinion of both Dr Neilssen and Dr Westmore, I am satisfied upon the balance of probabilities that the accused is unfit to be tried for the offence of murder. In the light of this finding, pursuant to s 14A of the Act, it is appropriate that the accused be referred to the Mental Health Review Tribunal. 36 The accused has been on bail since the date he was charged with the subject offence. In his report of 3 July 2001, Dr Neilssen observes that the accused does not pose a risk to the community. Dr Neilssen goes on to note that the accused's condition is unlikely to improve and would not respond to treatment in a hospital, but, rather, that he that he would be likely to become more disoriented and distressed were he to be admitted to an institution. 37 I am of the view that the appropriate order is to continue the accused's conditional bail in accordance with the Bail Act 1978. 38 For these reasons, the orders that I make are: 1) Saverio Quattrone is referred to the Mental Health Review Tribunal, he being unfit to be tried upon a charge that on 18 May 1999 at Bossley Park in the state of New South Wales he did murder Natalina Quattrone. 2) The accused's present conditional bail is continued. *********** Last Modified: 10/03/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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