New South Wales Supreme Court CITATION : R v Huy Pham [2007] NSWSC 1312 HEARING DATE(S) : 12 November 2007 JUDGMENT DATE : 12 November 2007 JUDGMENT OF : James J EX TEMPORE JUDGMENT DATE : 12 November 2007 DECISION : Accused found fit to be tried CATCHWORDS : CRIMINAL LAW - Fitness to be tried LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Mental Health (Criminal Procedure) Amendment Act 2005 No 109 CASES CITED : Kesavarajah v The Queen (1994) 181 CLR 230 R v Presser [1958] VR 45 PARTIES : R v Huy Pham FILE NUMBER(S) : SC 2005/3119 COUNSEL : JN Bowers - Crown JS Manuell - Accused Director of Public Prosecutions SOLICITORS : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J MONDAY 12 NOVEMBER 2007 2005/3119001-5 REGINA v HUY PHAM JUDGMENT 1 HIS HONOUR: This is a determination of the question of the unfitness to be tried of Huy Pham, who I will refer to as "the accused", for a number of offences. 2 The accused has been charged with the following offences allegedly committed on 4 August 2004. 1. That he murdered Chi Cong Pham (who was his wife's uncle). 2. That he shot at Joanne Ngo (who is his wife) with intent to murder her. 3. That he threatened to use an offensive weapon, namely a pistol, with intent to commit an indictable offence. 4. That he maliciously damaged by fire a pharmacy at Riverwood, which was the property of his wife. 5. That he used a firearm, namely a pistol, without being authorised to do so. 6. That he possessed a firearm, namely a pistol, without being authorised to do so. 3 The accused was arrested on 5 August 2004, the day after the offences were allegedly committed. On 4 May 2005 he was committed for trial to this court. At a first arraignment listing in this court on 1 July 2005 the question of his fitness or unfitness to be tried was raised. On 25 September 2005 the Solicitor-General made a determination that an inquiry into the accused's fitness to be tried should be conducted pursuant to the Mental Health (Criminal Procedure) Act. 4 On 17 February 2006 a jury found the accused unfit to be tried on the charges and the matter was referred to the Mental Health Review Tribunal. On 19 May 2006 a notification was received from the Mental Health Review Tribunal that the tribunal had formed the opinion that the accused would become fit to be tried during a period of twelve months after the finding of unfitness to be tried. On 12 July 2007 notification was received from the Mental Health Review Tribunal that the tribunal had formed the opinion that the accused had become fit to be tried. A further hearing of the question of the accused's fitness or unfitness to be tried was fixed for hearing. 5 At the present hearing it was common ground between counsel for the Crown and counsel for the accused that, because the criminal proceedings against the accused were commenced before the commencement of the Mental Health (Criminal Procedure) Amendment Act 2005 No 109, the former ss 11 and 11A of the Mental Health (Criminal Procedure) Act were applicable, see Mental Health (Criminal Procedure) Act Schedule 1 cl 3(2), Mental Health (Criminal Procedure) Amendment Act Schedule 1 cl 4. 6 An election dated 9 November 2007 signed by the accused was filed with the court. In this document the accused elected to have the question of his unfitness to be tried determined by a judge alone. The election further stated: "I have sought and received advice in relation to this election from Robyn Clark, a practising solicitor of the Supreme Court of New South Wales. I have understood the advice that has been given to me. Even though I have made this election and signed this document I am aware that at any time before the date fixed for the determination of my unfitness to be tried I may elect to have the question of my unfitness determined by a jury." 7 The document includes a consent by the Director of Public Prosecutions to the election by the accused which has been signed on behalf of the Director. 8 A report by Dr Olav Nielssen, psychiatrist, dated 23 October 2007 was admitted into evidence. Dr Nielssen had also seen the accused on a number of previous occasions and had furnished reports dated 1 February 2005, 4 August 2005 and 17 May 2007. In the last paragraph of his report of 23 October 2007 Dr Nielssen said he, the accused, was assessed by Dr Nielssen to be able to understand legal advice regarding an election to have his fitness for trial decided by a judge sitting alone. 9 The test of fitness or unfitness to be tried, which has been consistently applied by the courts, is the test which was stated by Smith J of the Victorian Supreme Court in R v Presser [1958] VR 45 at 48. "It 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…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 inquiry as to whether he did what 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 of the various court formality. He needs to be able to understand…the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer the charge. Where he has Counsel he needs to be able to do this through his Counsel by giving any necessary instructions and by letting his Counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must…have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his Counsel, if any." 10 This passage in the judgment of Smith J in R v Presser has been approved on a number of occasions by the High Court including in Kesavarajah v The Queen (1994) 181 CLR 230 at 245 per Mason CJ, Toohey J and Gaudron J. In Kesavarajah the majority of the High Court said that the length of any trial of the charges is also a relevant factor. In the present case, I have been informed that any trial of the charges would be likely to be quite short. 11 Under s 6 of the Mental Health (Criminal Procedure) Act 1990 the question of a person's unfitness to be tried for an offence is to be determined on the balance of probabilities. Under s 12 of the Act the accused person is to be represented by counsel or a solicitor, the inquiry is not to be conducted in an adversary manner and the onus of proof of the question of a person's unfitness to be tried does not rest on any particular party. In the present case the accused has been represented by counsel and a solicitor. 12 The only evidence from the Crown in this trial was a report by Dr Bruce Westmore, psychiatrist, of 28 October 2007. Dr Westmore had seen the accused on a number of previous occasions. Counsel for the accused did not seek to cross-examine Dr Westmore. As this report by Dr Westmore was the only evidence adduced by the Crown, I propose to set out the bulk of the report verbatim. " RE-EXAMINATION OF MR PHAN I asked him how he had been since I last examined him he stated, "Bad." I asked him what he meant by that and he told me he had difficulties remembering "the past problem". I asked him was he facing charges and he said yes. I asked him what those charges were and he said, "Murder and attempted murder." I asked him how he wanted to plead to the charges and he said, "I don't know what to do because it is like waking up in the new world." I asked him who it was alleged he had murdered. He said, "A lot of these psychiatrists tell me I murdered the uncle of my wife." Mr Phan then started speaking spontaneously and he said, "My wife is having an affair with her uncle, incest. The brother of her mother. The doctor tell me." I then asked him what it was he had done and stated, "That I killed my wife's uncle and attempted to kill my wife as well because she is having an affair with her uncle." I asked him did he remember doing that and he said, "To be honest I don't really remember." I asked him what did he remember of the incident and he said, "Reading through the brief, I can't relate it to the incident." I then asked him did he still believe that his wife was having an affair with her uncle. He said, "Yes I see that with my own eyes." Mr Phan then told me that he was "very tired mentally". He said he was returning to court on 2 November 2007. He thought that was a hearing and that the "actual thing is on 12 November." I then asked Mr Phan had the doctors told him that he suffered a mental illness. He said "Yes, schizophrenia and delusion." I asked him how did he want to plead to the charges he had referred to earlier. He said not guilty. I asked him on what basis he would make such a plea and he said, "In my belief, you can't have an affair with your uncle." I asked him directly did he think he had a mental illness, he said no. I then asked him had his lawyer discussed with him the possibility of raising a mental illness defence. He said not really. I asked him if the doctor said that he did have a mental illness defence, would he consider entering a plea of not guilty by way of mental illness. He responded by stating, "Are you saying that I should believe my doctor?" I did not respond to his question but asked him would he consider entering a plea of not guilty because of mental illness if his lawyer suggested that. He said, "Yes, I will do forensic." I then asked him what the judge's job was in court. He said, "They listen to both parties and sentence me." Of the solicitor's role in court he said, "To defend, to tell the story." I asked him did he have faith in his solicitor. He said he would have faith in a private solicitor but he was not too sure of his legal representation because of legal aid. He said the jury would "listen to both parties and hand down a verdict." He understood the oath was sworn so people told the truth. I asked who was against him in court and he said, "Witnesses and the DPP." I then took an updated autobiographical history from Mr Phan. PAST MEDICAL HISTORY (UPDATE) He has had no surgery or medical problems since I last examined him. He has been in a mental health unit in Silverwater and has seen psychiatrists frequently. DRUG AND ALCOHOL HISTORY (UPDATE He said he currently takes three or four different types of medication but couldn't provide details. He thought the medication was helping and he said he can now sleep and eat and he was gaining weight. FAMILY HISTORY (UPDATE) One brother continues to live in Sydney but he does not want to see that brother whom he described as having stupid ideas. He has a brother and sister who live in Vietnam and they came to visit him a few months ago, both have now returned to Vietnam. PERSONAL HISTORY (UPDATE) He said he had been in Silverwater for six or seven months and during that time he has been managed in a psychiatric unit. MENTAL STATE EXAMINATION Mr Phan presented in a neat and tidy fashion, he was pleasant and cooperative. He appeared to have gained weight since I last examined him. He maintained reasonably good eye contact, although there was a blank and staring quality to his facial expression. This probably arises from his psychiatric illness and possibly the effects of treatment. He spoke spontaneously and expansively. Both his affect and mood were quite restricted. I thought his thought content continued to reflect delusional beliefs. Mr Phan acknowledges continuing to hear auditory perceptual disturbances which he said troubled him during the day and sometimes talked to him. He also receives messages from the radio. I tested his cognitive function, he was able to subtract seven from one hundred on a single occasion, but was unwilling to proceed with that test. I then asked him to subtract three from twenty. He indicated the answer seventeen, but then again would not proceed. I then took him through each separate serial subtraction and he did that successfully. The problem appears not to be one of cognitive capacity, but more one of perseverance and persistence. DOCUMENT REVIEW In my report of 15 March 2005 1 was not able to take a full history from Mr Phan because of significant delays before he attended for the examination. I did however see him for about forty minutes and I later advised your office that he would need to be reassessed. I attended Parklea Prison on 3 April intending to reassess him, but he did not attend. I did however review some documents in my report dated 6 April 2005 and I provisionally diagnosed Mr Phan as suffering from a delusional disorder. On 12 September 2005, I was able to reassess Mr Phan at the Long Bay Prison Hospital. I referred again to the provisional diagnosis of a delusional disorder and I expressed concerns that if he was mentally ill and if he had no insight into that fact and if was unable or unwilling to acknowledge that possibility, it was probable he would not be able to, in a reasonable or rational way, consider the full ranges of defences which might be available to him. I thought that if that occurred, he would be unfit to be tried. I also noted that since I last examined Mr Phan, he had attempted suicide by overdosing on a substance he obtained in prison, possibly heroin. Another psychiatrist indicated that as a result of the overdose, Mr Phan suffered acute brain trauma which led to a severe impairment of his cognitive processes. During the examination on 8 September 2005 1 noted he described a global type of memory disturbance affecting both long and short term memories. I thought he was unfit to be tried. I saw Mr Phan on the third occasion on 27 January 2006. 1 read that he had suffered a severe brain injury from a drug overdose which occurred in the first half of 2005. 1 indicated that if his continued history of reported memory difficulties was a true and accurate reflection of his current cognitive function, then I thought he remained unfit to be tried. I would note that apart from your letter of introduction, my handwritten clinical notes and my typed formal report, only selective documents from any you have sent me will be kept. Other documents will either be destroyed or returned to your office. Due to the size of legal briefs it is not usually possible to examine all the documents in detail. Should I be required to give evidence in court, I would request that copies of all the documents including your letter of introduction be brought to court in case I need to make reference to them. I would also request that if you feel there are any documents amongst the ones you have sent me that I have not reviewed in detail or which you feel may have relevance to the matters I am considering, that you bring those to my immediate attention. OPINION In relation to Mr Phan's fitness, I am of the view that he is able to understand what he has been charged with and he is now indicating that he would consider entering a plea of not guilty by way of mental illness. He is as able as any other accused person to exercise his right of challenge of jurors, although that has always seemed to me to be a difficult if not impossible task. His responses in relation to the important people in court indicates that he understands that he is involved in an adversarial process and that a trial would involve an enquiry into whether or not he did what he was charged with. Despite the presence of some problems with perseverance in intellectual function, I am of the view that he would, in a general sense, be able to follow the proceedings, although some allowance may need to be made if he tires during lengthy periods of the trial. His legal representatives may need to check on him from time to time to ensure that he is still attending and concentrating and following proceedings. He would have the capacity to understand the substantial effect of any evidence that may be given against him and he will be able to make his defence although it is likely his defence will be based on a belief system which is probably delusional in nature. There was nothing in the recent examination to indicate that he could not give his legal representatives a history similar to the one he provided to me and he could also give that account to the court as well if required. I am now of the view that Mr Phan is fit to be tried." 13 The only evidence from the defence in this trial, apart from the report of Dr Nielssen to which I have already referred, was a report by Dr Nielssen of 17 May 2007. In this report Dr Nielssen diagnosed the accused as suffering from paranoid schizophrenia in partial remission and hypoxic brain injury which is resolving. Dr Nielssen's conclusions under the heading "opinion" on p 3 of his report were as follows. "The diagnosis of schizophrenia is based on the history of typical symptoms of schizophrenia over a period of at least four years. The subtype of paranoid refers to a form of the illness in which the predominant symptom is a delusional belief with relative preservation of other aspects of mental function. In this case the belief was that his wife was having an affair with the victim, which the evidence indicates was a delusional belief on his part. The diagnosis of hypoxic brain injury is based on the well documented medical consequences of the serious overdose Mr Phan took whilst in Parklea Correctional Centre in 2005. he has made a good recovery from the injury, although there are subtle changes in his presentation that were thought to be due to personality change arising from the brain injury. Mr Phan has recovered sufficiently to be considered fit for trial. He is aware of the charges, the nature of the proceedings and was assessed to be able to follow the proceedings. He acknowledges that he has been mentally ill and does not object to the issue of mental illness being raised as his defence. He was assessed to able to give instructions to a legal representative." 14 Counsel for the Crown did not seek to cross-examine Dr Nielssen on his report. 15 In accordance with the evidence which each had adduced, each counsel submitted that I should find that the accused is fit to be tried for the offences which have been charged. 16 I have concluded that, notwithstanding the diagnosis by Dr Nielssen that the accused is suffering from paranoid schizophrenia in partial remission and an hypoxic brain injury which is resolving, the criteria in R v Presser are satisfied. I have concluded inter alia that the accused is able to understand the charges brought against him; that he does understand that he could enter a plea of not guilty on the ground of mental illness if his lawyers advise that course; he does understand generally the nature of any trial, that is, that he is being prosecuted by the Director of Public Prosecutions, that the jury or other tribunal of fact would listen to the evidence of both parties and reach verdicts; that he would be able to follow the course of the proceedings and understand the substantial effect of the evidence for the Crown and to make a defence to the charges. 17 I, accordingly, find that the accused is not unfit to be tried for the offences or, expressing the conclusion positively, I find that the accused is fit to be tried for the offences charged. 18 Accordingly, under s 13 of the Mental Health (Criminal Procedure) Act the criminal proceedings which have been brought against the accused for the offences are to continue in accordance with the appropriate criminal procedures. ********** 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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