New South Wales Supreme Court CITATION : Regina v Rafal Polanski [2005] NSWSC 310 HEARING DATE(S) : 11/4/05 JUDGMENT DATE : 11 April 2005 JUDGMENT OF : Bell J at 1 DECISION : 1. The accused is found unfit to be tried for the offence of murder or any statutory alternative to it; 2. The accused referred to the Mental Health Review Tribunal pursuant to the provisions of s 14(a) of the Mental Health (Criminal Procedure) Act 1990; 3. The accused is to be returned to his present custody and to remain in custody until further order of the court or until his release by operation of law. LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Kesavarajah v The Queen (1994) 181 CLR 230 CASES CITED : R v Presser (1958) VR 45 Regina PARTIES : Rafal Polanski (Accused) FILE NUMBER(S) : SC 70017/98 P. Power SC (Crown) COUNSEL : C Craigie SC (Accused) S Kavanagh SOLICITORS : SE O'Connor (Accused) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J Monday 11 April 2005 70017/98 Regina v Rafal Polanski JUDGMENT 1 BELL J: The accused, Rafal Polanski, was charged on 14 November 1997 with the murder of Josef Zimmer. The offence is alleged to have occurred on 19 October 1997. 2 On 21 October 2004 the Attorney-General determined, pursuant to s 29 of the Mental Health (Criminal Procedure) Act 1990, that a further inquiry be held to determine the fitness to be tried of Rafal Polanski in respect of the offence. Section 29 sub-s (4) of the Act provides that ss 11 (subs (3) excepted) and 12 apply to and in respect of a further inquiry under subs (2) in the same way as those sections apply to and in respect of an inquiry. 3 Provision is made in s 11A of the Act for the question of a person's fitness to be tried for an offence to be determined by a judge alone if the person so elects and the judge is satisfied that the person sought and received advice in relation to the election from a barrister or solicitor before making it. An election may only be made with the consent of the Prosecutor. 4 By instrument dated 4 February 2005 the accused elected to have the fitness hearing determined by a judge alone. He stated that before making the election he had sought and received advice in relation to the election from Sashi Shukla, his solicitor. The Prosecutor signified his consent to the fitness hearing proceeding by judge alone by signing the accused's election on 4 April 2005. 5 Senior counsel appearing for the accused and senior counsel appearing on behalf of the Crown were agreed that the provisions of s 11A of the Act admit of the question of fitness being determined by judge alone in respect of an inquiry directed pursuant to s 29 of the Act. 6 Before commencing to hold an inquiry as a judge alone into the accused's fitness to be tried it is necessary for me to be satisfied not only that the accused sought and received advice in relation to the election before making it, but that he understood the advice that was tendered. Mr Craigie SC, who appears on the accused's behalf, read the affidavit of his instructing solicitor, Sashi Shukla, which was sworn on 31 March 2005 in support of the election. The affidavit sets out a number of uncontroversial matters of history to which it is convenient to refer. 7 On 3 May 1999 an inquiry into the accused's fitness to be tried was conducted before Wood CJ at CL, sitting as a judge alone. On 5 May 1999 his Honour found the accused to be unfit to be tried and referred him to the Mental Health Review Tribunal in accordance with the statutory scheme. On 28 October 1999 the Mental Health Review Tribunal determined, on the balance of probabilities, that the accused would not become fit to be tried within twelve months of the finding of unfitness. 8 On 8 March 2000 the Attorney-General directed that a special hearing be conducted in respect of the offence of murder. On 7 August 2000 a special hearing in respect of that offence commenced before Barr J and a jury of twelve. On 28 August 2000 the jury made a qualified finding of guilty of murder. His Honour nominated a limiting term of thirteen years to commence on 14 November 1997 and to expire on 13 November 2010. His Honour referred the accused to the Mental Health Review Tribunal. 9 On 6 August 2004 the Mental Health Review Tribunal made a determination that the accused had become fit to be tried. It was following this determination that the Attorney-General directed a further inquiry be held as to the accused's fitness pursuant to s 29(1)(a) of the Act. Mr Shukla states that he acted for the accused in the proceedings before Justice Wood in May 1999 and at the special hearing before Justice Barr. 10 On 4 February 2005 Mr Shukla attended on the accused at the Long Bay Hospital. Mr Shukla deposes to the fact that the accused was aware that a fitness hearing had been held before a judge alone in May 1999 and that subsequently a special hearing had been conducted in August of the following year. He was aware that there had been a qualified finding of guilty with respect to the murder of the deceased and that a limiting term of thirteen years had been specified by Barr J. 11 Mr Shukla deposes to having advised the accused that the fitness hearing to be held today could be conducted before a judge and jury or before a judge alone if he elected to do so and if the Prosecutor consented to that course. Mr Shukla asked the accused if he wanted advice in this respect and the accused responded that he would listen to what Mr Shukla had to say. Mr Shukla sets out, in para 14 of his affidavit, the information that he supplied to the accused concerning the conduct of a fitness hearing before a judge alone. 12 After receiving this advice, the accused said that he wanted the inquiry into his fitness to be tried to be held before a judge sitting alone. Mr Shukla expresses his firm belief that the accused fully appreciated the advice that he was giving. 13 A report prepared by Dr Rosalie Wilcox, a psychiatrist, dated 30 March 2005, was in evidence. In that report, Dr Wilcox sets out her opinion on a number of issues concerning the accused's mental condition, formed as the result of reading a number of documents, many of which form part of Exhibit A, and having regard to the contents of her interviews with the accused conducted on 24 March 2005 and on 31 March 2005. In the concluding portion of that report she states of the accused that he has a reasonable understanding of the workings of the court and of the role of the various participants. She expresses her belief that he has the capacity to elect to have a hearing before a judge alone. 14 In light of the contents of Mr Shukla's affidavit and Dr Wilcox's report, I am satisfied both that the accused sought and received the advice of a solicitor concerning his election for the fitness hearing to proceed before judge alone before he had made that election, and that he understood the election. In these circumstances I proceeded to embark upon the hearing of the question of the accused's fitness to be tried for the offence of murder. 15 Section 12 of the Act makes provision for the conduct of an inquiry into a person's fitness for trial. It is not to be conducted in an adversarial manner. The onus of proof on the question of a person's fitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The accused person is, unless the court otherwise allows, to be represented by counsel or a solicitor. As I have indicated, the accused is represented by senior counsel. 16 It is necessary for the purposes of s 12 sub-s 4 of the Act for me to direct myself concerning the reason for holding an inquiry, the findings that may be made upon an inquiry and the consequences both at law and otherwise, of those findings. The findings that are open are that the accused is fit to be tried for the offence of murder. If he is found fit to be tried, his trial may proceed in accordance with the ordinary procedures. 17 Another finding that is open is that the accused is unfit to be tried. If he is unfit to be tried, proceedings for the offence of murder must not be recommenced or continued and I must refer the accused to the Mental Health Review Tribunal. The Mental Health Review Tribunal must, as soon as practicable after such a referral, determine whether, on the balance of probabilities, the accused will, during the period of twelve months after the finding of unfitness, become fit to be tried for the offence. 18 If the Tribunal determines that he will, during the period of twelve months after the finding of unfitness, become fit to be tried for an offence, it must also determine whether or not he is suffering from a mental illness or mental condition, whether treatment is available for his condition in a hospital and, if the person is not in a hospital, whether the person objects to being detained in a hospital. After determining these matters, the Tribunal must notify the court which referred the person to it of its determination. 19 If the Tribunal determines that a person will not, in the period of twelve months after the finding of unfitness, become fit to be tried for an offence, the Tribunal must notify the Attorney-General of the determination. 20 If the Attorney-General is notified by the Tribunal of its determination that the person will not, on the balance of probabilities, become fit to be tried during the period of twelve months after the finding of unfitness, the Attorney-General may direct that a special hearing be conducted in respect of the offence with which the person is charged. The Attorney-General may also advise the Minister for Police or the court which referred the person that he will not be further proceeded against by the Attorney-General or the Director of Public Prosecutions in respect of the offence. 21 Where the Tribunal finds, on the balance of probabilities, that a person will become fit to be tried within a period of twelve months of the finding of unfitness, the court has powers, including to grant the person bail pursuant to the Bail Act 1978, to order the person's detention in a hospital or to order the person's detention in a place other than a hospital. 22 Section 19 of the Act makes provision for the conduct of a special hearing on the direction of the Attorney-General. The nature and conduct of such a hearing is dealt with in s 21. The verdicts at a special hearing are set out in s 22. 23 The reason for holding an inquiry into a person's fitness to be tried for an offence arises in recognition that it would be unfair to require a person to stand trial for an offence in circumstances where, by reason of his or her mental condition or intellectual handicap, he or she is not possessed of the minimum standards required to permit him or her to understand and participate meaningfully in the trial. The minimum standards with which an accused person must comply before he or she can be tried without unfairness or injustice were explained by Smith J in R v. Presser (1958) VR 45. More recently they were considered by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 per Mason CJ, Toohey J and Gaudron J at 245. Their Honours observed as follows: "Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v. Pritchard (1836) 7 Car and P at 304 (173 ER at 135), require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer to the charge." 24 In that case, the majority also emphasised the need for the court, in considering the question of a person's fitness to be tried, to have regard to the estimated length of the trial. 25 An agreed bundle of documents was tendered on the hearing of this inquiry. It includes the facts sheet prepared by Senior Constable Biason. I will refer briefly to the nature of the allegation made by the Crown by reference to that document. 26 The deceased was employed as a barman at the Polish Club in Ashfield. It is the Crown case that the accused met the deceased at the Polish Club after the latter had finished his shift. The two consumed a quantity of alcohol. The deceased offered the accused accommodation at the boarding house at which he was residing, and the two returned to those premises in the early hours of Sunday 19 October 1997. It is alleged that the accused struck the deceased about the head on a number of occasions with a fire extinguisher and that he stabbed him in the back. He is alleged to have ransacked the premises after the fatal assault and to have stolen a number of items. 27 After his arrest, the accused participated in an electronically recorded interview with the police, during which he admitted that he had struck the deceased with the fire extinguisher. He raised issues of intoxication and the assertion that the assault upon the deceased had been prompted by a fear of homosexual rape. 28 The agreed bundle of documents includes psychiatric reports prepared by Dr Thompson, Dr Strum and Dr Canaris, prepared variously between 28 April 1999 and 2 August 2000. In light of the way the inquiry has been conducted, it is not necessary for me to go to those in any detail. They have been placed before me to demonstrate the circumstance that the accused has a long history of mental illness. 29 Following the Attorney-General's direction to which I have referred, the accused was seen by Dr Wilcox, at the request of those acting for him, on the dates noted above. It is to be observed that Dr Wilcox has had contact with the accused at the Long Bay Prison Hospital in the past. In her report she notes that she was the doctor first involved in the accused's care in 2001, and that he had subsequently returned to her care. By way of history, she noted that he had been, as at March 2005, recently transferred from A Ward, the long stay chronic ward within the Long Bay Hospital facility, to D Ward, a ward for more acute patients. His transfer had been prompted by the concern that he was at risk of self-harm. 30 In the concluding portion of her report Dr Wilcox notes: "Mr Polanski is a thirty year old man who has suffered from a mental illness for over ten years. This illness is characterised by delusions and hallucinations and he has attempted to take his life in response to his delusional beliefs. The most likely diagnosis is chronic paranoid schizophrenia." 31 Dr Wilcox goes on to note that there have been periods when the accused's symptoms have been well controlled and where he has been quite stable. She notes that in May 2004 he had been taken off anti-psychotic medication. It was after this, in July 2004, that he was reviewed by the Mental Health Review Tribunal and found fit to be tried. Since that time, Dr Wilcox, states the accused has undergone a relapse of his mental illness and has been psychotic with a loss of contact with reality for several months. As at 30 March 2005 it was Dr Wilcox's opinion that the accused was showing signs of gradual improvement. Among other things, his improvement made it possible for him to minimise his symptoms. In her opinion he was keen to do that in order to return to A Ward. He also appeared anxious to not receive any further increase in his medication. 32 Dr Wilcox notes with respect to the question of his fitness to plead, that in some respects there has been an improvement in his fitness in comparison to his situation when he was initially found unfit. However, in other areas she considers the picture to be less clear. In Dr Wilcox's opinion, the area in which the accused would face difficulty relates to deciding on a defence and upon his plea. She notes also the accused suffers from impaired concentration and in his view would have difficulty following the proceedings. On the balance of probabilities Dr Wilcox is of the view that the accused is currently psychiatrically unfit to plead. She considers that it is possible that his situation will improve and that he will become fit. 33 Professor Greenberg, a psychiatrist, was retained by the Director of Public Prosecutions to provide a report concerning the question of the accused's fitness to be tried. His report is dated 29 March 2005 and is based upon a consideration of a number of documents that form part of exhibit A, and the results of his assessment of the accused when he was at Ward D at the Long Bay Prison Hospital. Professor Greenberg conducted an interview with the accused on 9 March 2005 that lasted two and a quarter hours. 34 As I read the report of Professor Greenberg, there is a substantial measure of agreement in terms of his diagnosis of the accused's mental condition and his consideration of the issues bearing on fitness to plead with the opinions expressed by Dr Wilcox to which I have referred. 35 In describing the mental status examination, Professor Greenberg notes that the accused had denied auditory hallucinations. He gives an account of statements made at the interview, during which the accused maintained that he was receiving messages from outer space, including from aliens who had told him to attempt suicide by cutting his forearms while in prison. Professor Greenberg notes that the accused was oriented to time, place and person but that his insight was impaired with regard to his mental illness and need for psychiatric medication. He is diagnosed by Professor Greenberg as suffering from schizophrenia disorder and, as at the date of assessment, being acutely psychotic. Professor Greenberg notes that the suicide attempt to which Dr Wilcox made reference occurred in late 2004. Professor Greenberg notes that this was associated with reported delusions about being controlled by aliens from outer space. He goes on to note that the accused was reluctant to talk about his psychotic beliefs. 36 As a general observation I do not understand the reports of either Dr Wilcox or Professor Greenberg to give rise to any concern that the accused has feigned symptoms of mental illness. Professor Greenberg notes that in the months of January, February and March 2005, various psychiatrists have seen the accused and that all report him to be suffering from a psychotic illness and that the accused has always been guarded and reluctant to talk about his psychotic symptoms. 37 At the date Professor Greenberg saw the accused, he was receiving anti-psychotic medication in the form of intra-muscular medication called Clopixol and oral medication called Olanzapine. He was also receiving an anti-depressant medication called Aropax. 38 On the question of the accused's fitness to stand trial, Professor Greenberg is of the view that the accused understands the nature of the charges and that he understands the pleas that are available to him and his right of challenge. In general, the accused understands the nature of the proceedings in the sense that they are an inquiry into the veracity of the allegations made against him. In Professor Greenberg's opinion, the accused understands the roles of the various officers in the court and "in fairly rudimentary terms he generally understands the course of the proceedings" (at p 8). 39 Professor Greenberg is of the opinion that the accused is currently unfit to be tried. The basis of his opinion in this respect is that the accused is labouring under intense delusional beliefs at the current time. By reason of these delusional beliefs, Professor Greenberg considers he would have difficulty appreciating the substantial effect of evidence against him. In part this is because he is preoccupied with his psychiatric symptoms and by reason of his guardedness. Professor Greenberg considers the accused to have grossly impaired insight into his mental illness at the present time. He has concerns as to whether the accused understands the defence that he could make and as to his ability to instruct counsel and communicate his version of the facts to counsel. In this respect he emphasised the accused's preoccupation with his delusional beliefs and auditory hallucinations. 40 While there may be some slight variation in emphasis, I understand the medical evidence to be, in essence, all one way. Whilst it is acknowledged that this accused understands the nature of the charge and the nature of the proceedings, his ability to understand the effect of the evidence that may be given and to make a defence is impaired by reason of his psychiatric condition such that he does not meet standards (5) and (6) in the extract from Kesavarajah that I have set out above. While Professor Greenberg notes that he understands the various pleas available to him, I do not take there to be disagreement between Professor Greenberg and Dr Wilcox as to his inability to consider whether he has a defence of mental illness available to him and to give instructions in that respect. 41 Mr Craigie, on the accused's behalf, submits that I would find, in light of the psychiatric evidence, that the accused is unfit to be tried for the offence and the Crown joins in that submission. 42 I am of the opinion that that is the proper finding and for those reasons I make the following orders: 1. I find Rafal Polanski unfit to be tried for the offence of murder or any statutory alternative to it. 2. I refer Rafal Polanski to the Mental Health Review Tribunal pursuant to the provisions of s 14(a) of the Mental Health (Criminal Procedure) Act 1990 . 3. Rafal Polanski is to be returned to his present custody and to remain in custody until further order of the court or until his release by operation of law. ********** 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.