Supreme Court New South Wales Medium Neutral Citation: R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924 Hearing dates: 8 August 2011 Decision date: 08 August 2011 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Accused found unfit to be tried. Catchwords: CRIMINAL LAW - trial of issue of fitness to be tried - accused charged with murder - found unfit Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Regina (Crown) Mohamed Iqbal Alwijaya (accused) Representation: Barristers A McCarthy (Crown) C Smith (accused) Solicitors S Kavanagh (Solicitor for Public Prosecutions) (Crown) Andrew Harris & Associates (accused) File Number(s): 2010/106383 JUDGMENT - fitness to be tried 1HIS HONOUR: The accused, Mohamed Ali Iqbal Aliwijaya, is charged with murder. An issue has arisen as to his fitness to stand trial and it is that issue which I must decide today. 2The offence is said to have occurred whilst he was on remand awaiting trial in the District Court upon a charge of wounding with the intent to inflict grievous bodily harm. It is alleged that on 23 April 2010 he attacked a cellmate quite brutally, causing his death. 3For the purpose of today's proceedings I have the benefit of reports of two respected forensic psychiatrists, Dr Richard Furst, engaged by the accused's legal representatives, and Professor David Greenberg, engaged by the Crown. 4To Dr Furst the accused gave an account of the killing which clearly raises a defence of mental illness. Both psychiatrists are of the view that that defence could be available if he were fit to proceed to trial. 5It is not necessary to recite the evidence on the issue which I must decide in any detail. 6Dr Furst saw the accused in custody in December last year and January of this year. He obtained a history from the accused, conducted a mental state examination and had regard to other information, including other medical material concerning his psychiatric history. It appears that he has a history of psychosis from at least 2008. He has undergone some treatment before he went into custody and since he has been in custody. 7Both psychiatrists addressed the issue of fitness to stand trial. Both are experienced forensic psychiatrists well aware of the legal test, which I do not need to set out for present purposes. 8Dr Furst diagnosed the accused as suffering from schizophrenia of a paranoid type which was treatment-resistant, together with substance abuse disorder. Professor Greenberg arrived at the same conclusion, and I will turn to his reports in just a moment. 9Dealing first with Dr Furst. When he questioned the accused with a view to determining his fitness to stand trial, he found that the accused understood the charge against him and had some rudimentary, albeit confused, understanding of aspects of the trial process, including the defence of mental illness. 10The doctor found his understanding of that defence, in particular, to be confused. The doctor spoke of the pleas of guilty, not guilty or not guilty by reason of mental illness and in that context reported that the accused's "understanding of the three plea options was not particularly logical and did not seem to be linked to an appreciation of whether he would go to trial or not and/or implications for a possible sentence." 11A little later in his report the doctor recorded that the accused's "understanding of the substantial effect of evidence was rudimentary." The doctor continued: "Mr Aliwijaya still had evidence of psychotic symptoms in the form of delusions and hallucinations, which will probably have a bearing on his capacity to pay attention to what was being said and his endurance in the trial. He was able to attend to two interviews with myself and will probably be able to explain his version of events to his lawyer and the Court if so required." 12Nevertheless, having considered the legal tests, the doctor reported as follows: "I was of the opinion that Mr Aliwijaya did not understand the trial process or his plea options sufficiently well, would struggle to endure the trial and was still psychotic. I thought that he was not fit to plead and not fit to be tried." These were Dr Furst's observations in a report of March of this year. 13Professor Greenberg saw the accused in February of this year and again in June. Concerning the first consultation, the Professor concluded at that stage that the accused was probably suffering from a schizophrenic disorder associated with alcohol and poly-substance abuse. 14In that report he addressed the issue of fitness to plead, saying that the accused understood the nature of the charge he was facing and in rudimentary terms the difference between a not guilty and a guilty plea. He observed, however, that he had "some difficulty articulating a defence of mental illness." 15The Professor observed the same rudimentary, but somewhat confused, understanding of the trial process. Importantly, however, he expressed this conclusion: "At this time I think he would have some difficulty understanding the course of proceedings and the functions of the officers in Court. I am also concerned about his appreciation of the substantial effect of the evidence given in Court at this time. I do, however, feel he is able to decide on what defence he should make, but would have some difficulty in communicating his version of the facts or give evidence, if required to do so, at this time. I am of this view because of his current psychotic mental state. He has ongoing hallucinations and delusions of thought control which impact on his ability to integrate knowledge whilst attending Court and communicate his version of the facts." 16At the time he wrote the first report, however, Professor Greenberg thought that the accused's mental state might improve and that he may become fit to stand trial. However, he saw him again in June, as I have said, and provided a further report. At that point he agreed with Dr Furst's diagnosis of chronic schizophrenic disorder with treatment-resistant symptoms. He observed him to be still unwell. 17On the question of fitness to stand trial, his observations of the accused's capacity to understand and participate in the proceedings were not materially different from those he had previously expressed. The doctor expressed the view that he did not understand the nature of the proceedings, and he had this to say: "I am of the opinion that based on his current symptomatology, which includes hallucinations and delusions, fairly limited attention span as well as cognitive impairment, he would have difficulty appreciating the substantial effect of evidence. I am of the opinion that he probably could decide on what defence he should make with counsel, and instruct his counsel. However, I am of the opinion that he would have difficulty communicating his evidence if required to do so. Mr Aliwijaya can give an account of himself during the time period surrounding the offences. On the balance of probabilities, I am of the opinion that Mr Aliwijaya is currently unfit to plead or stand trial at this time because of his acute psychotic symptoms and his impaired mental state due to his schizophrenic illness. I am of the opinion that he would have difficulty exercising his right to challenge the jurors, to understand the nature of the proceedings and generally understand the course of proceedings, including the functions of the officers and Court. I am also of the opinion that he would have difficulty in appreciating the substantial effect of evidence and also to give evidence if required to do so." 18Put shortly, then, the opinions of two respected forensic psychiatrists are the same. It is clear enough that, at least at this stage, this man is not fit to stand trial and I so find. 19I should add that a fitness hearing was conducted in the District Court where he was to stand trial for the offence of wounding with intent to inflict grievous bodily harm, and there also his Honour Judge Armitage found the accused to be unfit in a judgment of 28 July of this year. (Discussion with counsel.) 20I find the accused unfit to be tried. Pursuant to s14 (a) of the Mental Health (Forensic Provisions) Act 1990 I refer him to the Mental Health Review Tribunal. He is to remain in custody in the meantime. ********** 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: 19 August 2011