District Court New South Wales Medium Neutral Citation: R v Haroon HUSSEIN [2011] NSWDC 103 Decision date: 20 April 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Mr Hussein is unfit to be tried. Catchwords: CRIMINAL LAW - hearing to determine fitness to be tried - determined that an inquiry into accused's fitness should be conducted - question of unfitness raised in good faith - to be determined on balance of probabilities - reference to criteria in R v Presser - inconsistent behaviour in consultations with psychiatrists and psychologists - question of whether accused was malingering - reservations about accused's capacity to give instructions to counsel, give evidence and be cross-examined Legislation Cited: Crimes Act 1900 s 178BA Mental Health (Forensic Provisions) Act 1900 s 7(1), s 8, s 10 Cases Cited: R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina Haroon Hussein Representation: Mr PG Hogan for the Director of Public Prosecutions Mr P Johnson for Mr Hussein File Number(s): 2009/227411 Judgment 1. Mr Hussein has been charged by the Director of Public Prosecutions with two offences. They are both obtaining money by deception. They are both offences against s 178BA of the Crimes Act 1900. 2. Mr Hussein has not yet been arraigned and therefore has not yet pleaded to those charges. That is because a question has been raised about his unfitness to be tried. It was appropriately raised in accordance with s 7(1) of the Mental Health (Forensic Provisions) Act 1990 before arraignment. 3. I have heard over the last two or three days proceedings on the question of Mr Hussein's unfitness to be tried. That is because I have determined, in accordance with s 8 of the same Act, that an inquiry should be conducted before any hearing of the charges against Mr Hussein. Hence the hearing which I have conducted over the last few days has been in accordance with s 10 of the Act and has been in the form of an " inquiry in order to determine " whether Mr Hussein " is unfit to be tried " for the offences that he has been charged with. 4. I am satisfied, on the evidence which has been led before me, that the question of his unfitness has been raised in good faith. 5. I note, as has been pointed out to me by counsel, that in accordance with s 12 of the same Act, the inquiry was not conducted in an adversary manner except to the extent that each party put forward the arguments consistent with either fitness or unfitness, namely the prosecution argued that the evidence supported Mr Hussein being fit for trial and the defence argued that the evidence supported a finding that he was unfit for trial. 6. The question of Mr Hussein's unfitness to be tried is to be determined by me on the balance of probabilities. The evidence in this case comprised a detailed factual summary of what is alleged against Mr Hussein and reports and evidence from three medical practitioners and two psychologists. 7. Briefly the factual background is that the prosecution alleges that Mr Hussein was engaged with another man, named Mr Khan, with a criminal enterprise whereby hospitals in New South Wales were deceived into paying over two million dollars for goods which were not in fact supplied to them. 8. On the facts it would appear that Mr Khan was the mastermind. Mr Hussein conducted a business in supplying stationery and it appears that Mr Khan, who is in some way related to Mr Hussein, enlisted him and his business to provide invoices for the supply of goods which were in fact not delivered. That is all I need to say about the factual background of the offences. 9. For over fifty years now, courts have been greatly assisted in determining the question of a person's unfitness to be tried by reference to criteria set out by Smith J in the Victorian Supreme Court in R v Presser [1958] VR 45. 10. Mr P G Hogan of counsel, who appeared as Crown Prosecutor, helpfully provided as MFI 1 a list of those criteria. They are not disputed by Mr P Johnson of counsel, who appears for Mr Hussein. 11. It is clear that if Mr Hussein is unfit by virtue of any one or more of those criteria, then he would be unfit for trial. 12. Mr Hogan tendered a report from a forensic psychiatrist, Dr Leila Kavanagh, and also called her to give evidence. In her report she expressed concern about Mr Hussein's ability to follow the Court proceedings and instruct counsel, but qualified that concern significantly because of Mr Hussein's presentation to her in the consultation. His behaviour was, she described, grossly inconsistent. At times he appeared to understand and be able to convey a good deal of information. At other times he was unable to answer the simplest questions. She noted that he was able to concentrate throughout most of the interview. She remained uncertain as to his ability to follow the Court proceedings and recommended a neuropsychological test to clarify the issues. 13. Accordingly, Dr Susan Pulman, a clinical and forensic neuropsychologist, was retained and she conducted a series of assessments. She concluded on his developmental history that Mr Hussein is " likely to have some degree of intellectual impairment ". She thought that his intellectual disability could be described as mild, but was unclear about the extent of the disability. 14. Dr Pulman concluded her report by saying that Mr Hussein's " understanding of the Court process appears rudimentary at best. His responses to questions relating to the Presser criteria would suggest that he is likely to experience considerable difficulty following court proceedings ". 15. She acknowledged that the issue is ultimately of course for the Court, but then qualified her conclusion by saying that " if his current performance on tests of intellectual functioning were below his true capabilities, the possibility remains that he may have a greater understanding of the Court process than he has indicated ". She too was commenting on Mr Hussein's apparent inconsistency in presentation. 16. Mr Johnson tendered a report from Dr Christopher Canaris, a consultant psychiatrist. Dr Canaris raised the possibility of a diagnosis of " high functioning autism " and observed that Mr Hussein's " level of impairment is moderate to severe and I very much doubt that he would get by in daytoday life were it not for his wife and family's unstinting support ". 17. It is important to observe that at the stage that he was asked to report on Mr Hussein, Dr Canaris was commenting only on the question of Mr Hussein's mental capacity so far as culpability for the alleged crimes was concerned. He was not asked in the report which was dated 9 February 2010 to comment on his fitness for trial. 18. The defence also retained a clinical neuropsychologist named Dr Sara Lucas. She provided a report which set out the results of the tests and also addressed the criteria provided for by Presser's case. 19. Dr Lucas concluded that it was quite likely that Mr Hussein has a mild intellectual disability. She also thought it quite likely that he had some autistic or Asperger traits. She said in relation to the Presser criteria the following: " It appears that Mr Hussein has little understanding of the extent and nature of his situation, other than that he is in trouble with the police and might go to gaol. I do not know if the information he provided me with is consistent with that provided to others, but if it is (and I consider this to be entirely plausible given Mr Hussein's level of intellectual functioning), it would seem he may not be fit to plead/stand trial." 20. The defence also retained a Dr M Dowla, a consultant in neurology and clinical neurophysiology. Dr Dowla arranged for an MRI of the brain on 1 April 2010 " which did not show any abnormality ". But then a week or so later he arranged for what is called a " Ceretec Brain Perfusion Study ". That " showed mild perfusion defects in the prefrontal cortices bilaterally and inferior frontal cortices bilaterally and also in the white matter of the frontal cortices, mainly on the right, and the left temporo-occipital white matter left caudate lobe ". 21. An EEG test was within normal limits for a person in a wakeful state. Dr Dowla diagnosed a " mild intellectual impairment " and thought that it "may affect the Court case that he is currently facing. He may not fully understand the details of the Court process ". 22. Each of those doctors was called to give evidence by the respective parties and cross-examined. Briefly, Dr Canaris was of the view that Mr Hussein would have a major difficulty in undergoing a trial. He thought that he certainly could not challenge jurors, nor follow complex proceedings. He would have difficulty in taking in information and responding in a reasonable fashion to evidence against him, or to find evidence in his favour. Dr Canaris said that he would " feel very unsafe saying he was fit for trial ". He acknowledged that there was indeed, he thought, " some element of malingering ". His observations were that Mr Hussein was underperforming. He went on to say in cross-examination that based upon the information he received from the family that they were not, he said respectfully, " a psychologically sophisticated family ". He said a number of the behaviours which were described to him would not assist Mr Hussein and that if he were trying to present as unfit for trial, some of the descriptions he was given would not include the sort of detail he had. He posed as what he described the " real problem " as being just because Mr Hussein is a malingerer " does not mean that there is nothing wrong ". A malingerer, he acknowledged, might still be a sick person. 23. Mr Hogan asked Dr Canaris questions on the assumption that Mr Hussein's defence was fairly straightforward, namely that it involved the proposition that he had been duped or used and did not really understand what was going on. Dr Canaris acknowledged that and added, however, that if Mr Hussein was in the witness box and questions were put to him, then difficulties would begin to emerge. He also added that he " did not think that counsel could safely accept his instructions ". Counsel, he said, would experience considerable difficulty. 24. Dr Dowla in evidence diagnosed a bilateral frontal lobe abnormality. He went on to say that the frontal lobe deals exclusively with executive functions and that Mr Hussein would " behave like a head injury patient ". From the areas affected he acknowledged that it would affect Mr Hussein's ability to concentrate and to process information over a long period of time. He would have difficulty remaining engaged and in decision-making. 25. Dr Pulman, when she was called by Mr Johnson, acknowledged that the behaviour of Mr Hussein with her and others showed a lack of effort and she put it neatly by saying that there was " clearly another side to him that I did not observe ". She obviously had reservations about his state of fitness for reasons that will become apparent, but said that if she had to be asked one way or the other, she would say that he was unfit, even given the reservations that she had. 26. Dr Pulman's hesitation in giving that opinion became apparent in crossexamination by Mr Hogan when she acknowledged that most of her work was to do in civil cases and her experience in crime was limited. Indeed, she had not on any previous occasion undertaken a Presser assessment. But she went on to say that there was objective evidence and she was referring, I expect, to Dr Dowla's report, as well as historical evidence, that Mr Hussein had problems in spite of his apparent behaviour which might be described as malingering. 27. In re-examination Dr Pulman expressed the view that she did not think that Mr Hussein would be able to follow proceedings as the day progressed and would struggle quite a good deal in cross-examination. 28. Mr Hogan called Dr Kavanagh to give evidence. She expressed the opinion that, based on the history she obtained from him and from Mr Hussein's sister and wife in separate interviews, his behaviour was inconsistent with his ability to answer the questions administered by her in the Presser test. She said that he appeared to be avoiding answering the questions. She referred to a detailed history given over pps 7 to 8 of her report and to the fact that she had up to two and a half hours alone with him and interviewed, as I said, his relatives separately. 29. Dr Kavanagh helpfully defined malingering as feigning illness for secondary gain, and, in this context, feigning a cognitive impairment to avoid culpability and punishment. She acknowledged that she would find it very difficult for him to sit through a trial and to instruct counsel. She acknowledged the reservations expressed by Dr Pulman about Mr Hussein's capacity to undertake the same tasks. 30. If she was pressed for an opinion, as Mr Hogan asked her to do, she said it would be a difficult question to answer but she would, on the balance of probabilities, find him fit for trial, which is consistent with the evidence which she has read, including the other medical material. 31. In cross-examination by Mr Johnson, she referred to the extensive history given to her by Mr Hussein about his business, about the income from the business and his management of the tax side of the business and said that that information did not appear to be from a man who did not know what he was doing. She said that he appeared to understand the basics of business and what was right and what was wrong. 32. She thought he was fit to plead but could not say she was a hundred per cent sure of that nor, she added, could she say that he could sit through a trial and follow precisely the proceedings and the need to answer the questions. Asked by Mr Johnson about his ability to undergo cross-examination she said he appears to listen but what she could not determine is how much he was taking in. Dr Pulman's report, she fairly acknowledged, did not remove her doubts one hundred per cent. She agreed that the extent of his disability was unclear. Mr Hogan had elicited from her in examination-in-chief that she was a very experienced forensic psychiatrist and is in fact employed parttime by Justice Health. 33. Finally Mr Hogan called Dr Pulman who indicated that eightyfive per cent of her work was work involving criminal justice patients or clients and that most of that work was in the area of assessing for fitness. She diagnosed Mr Hussein as having an intellectual disability. She too said the question of the extent is in issue but was able to conclude that his level of disability would be somewhere within the mild range. She said that in her testing Mr Hussein did not perform to the level that she would expect. He in fact underperformed from her expectations. She was not prepared to attribute a motive to that behaviour and when asked by Mr Hogan whether it was consistent or inconsistent with malingering, she said that that would not be a term that she would use. She pointed out that what was clear was that he was not trying as hard as he could be, but what she was not clear about was whether that was from a lack of concentration, a lack of interest or a lack of honesty. 34. Dr Pulman too fairly acknowledged that her concern would be Mr Hussein's ability to follow the course of the proceedings throughout the trial. She thought that would be an issue. If pressed, she would say, on the balance of probabilities, that he was fit, but that would be subject to a need to have a support person with him in court in the event that he became confused. It would provide an opportunity for him to raise concerns. He would also benefit from the Court sitting for shorter periods. 35. In cross-examination, she acknowledged that he would not necessarily follow the proceedings but then one is not too sure of the extent to which anyone may be following proceedings. She confirmed her reservation about his fitness and that it was based upon the assumption that a support person would be present with him. Asked about what sort of support person, she was not sure but wondered whether an interpreter might assist Mr Hussein. He is a native of Fiji and he is Indian Fijian and speaks Hindi. His English is limited. She wondered whether somebody from a disability support service could be another person who could assist. She acknowledged that the onus would be on Mr Hussein to speak up if he was not following the proceedings. 36. I have been greatly assisted by both counsel with the evidence and how it has been presented. 37. I have determined on the balance of probabilities that Mr Hussein is unfit to be tried for the offences that he has been charged with. Briefly, my reasons for coming to this conclusion are based upon an examination of the arguments to the contrary expressed helpfully by Mr Hogan. 38. He argued that both Dr Pulman and Dr Kavanagh expressed their view on the balance of probabilities that Mr Hussein was fit. That is true, but the question of course is what I regard as proved on the balance of probabilities. I must take into account the reservations which both of those experts expressed, and the evidence given by Dr Canaris especially, and his serious reservations about Mr Hussein being fit for a trial. 39. Mr Hogan adopted Dr Pulman's recommendation of a support person being able to assist. That does raise a question about whether the trial could be conducted in such a way. On balance, however, I accept the arguments of Mr Johnson that it would present significant practical difficulties in finding the appropriate support person. Principally though, I am persuaded that it would be inappropriate because, as Dr Pulman acknowledged, the onus would be on Mr Hussein and given the descriptions of his performance within a number of the consultations. I would have serious reservations about whether he would make it clear to any support person that he was encountering difficulties. 40. Mr Hogan correctly pointed out that Mr Hussein's presentation was inconsistent. It raised a real question about his honesty and about whether he was malingering or not. I agree with him. Mr Hogan said that based upon that presentation, it provided an unsafe basis for me making the finding that he was unfit. I do not accept that submission. To my mind, there is clear objective evidence from Dr Dowla's testing of Mr Hussein's disability. There are opinions expressed - which are reliable - from Dr Canaris and reservations expressed by Dr Kavanagh and by Dr Pulman. 41. What I am called upon to do is to make a finding on the balance of probabilities. I cannot be certain that I am right, but based upon the material that I have just referred to, I do not regard it as unsafe to make a finding of unfitness based upon Mr Hussein's presentation. 42. Mr Hogan correctly pointed out that Dr Kavanagh and Dr Pulman had greater expertise in the area of assessing by reference to the Presser test about a person's unfitness. I accept that argument and have taken it into account. 43. It is also arguable, as Mr Hogan pointed out, that if Dr Kavanagh correctly recorded all the information provided to her exclusively by Mr Hussein, then that indicates that he may well be fit for trial. I accept that information was provided. However, even Dr Kavanagh, taking that into account, had reservations about his fitness, as did Dr Pulman and indeed Dr Dowla. Dr Dowla's evidence about Mr Hussein's capacity was based upon the objective findings of the tests. 44. Mr Hogan argued that the issue at the trial, given that it appears that Mr Hussein admits a good deal of the Crown's factual material, will be reduced to his capacity to form the important mental element of the offences and whether or not the Crown can satisfy the tribunal that he was not tricked or preyed upon by Mr Khan. That observation may well be right, but it needs to be borne in mind that that is an assessment of the simplicity or lack of complexity of the trial made at this stage and before the trial commences. From experience, criminal trials can become very quickly complex and more so than anticipated. At least one of the issues would be Mr Hussein's fitness to plead guilty or not guilty. That is one of the tests which was applied in Presser and I would have reservations about his understanding of that question. 45. Mr Hogan correctly refers to the very charges involving deception and the suggestion that Mr Hussein may well have been trying to deceive the various experts who consulted him. That is indeed a risk. 46. I am satisfied that he is unfit for trial. I mainly reach that conclusion based upon the opinion that he is unlikely to be able to follow the course of the proceedings and to understand what was going on in court in a general sense. I have reservations about his ability to give instructions to his counsel and certainly I have reservations about his capacity to give evidence and to be crossexamined. 47. For those reasons, I find that Mr Hussein is unfit to be tried for the offences. ********** 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. Decision last updated: 22 August 2011