Supreme Court New South Wales Medium Neutral Citation: R v Haines [2013] NSWSC 1609 Hearing dates: 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Common Law - Criminal Before: Price J Decision: 1. I find that the accused Brenda Lee Haines is fit to be tried for the murder of Haibo Wang on 3 March 2001 at Redfern. 2. In accordance with s 30 Mental Health (Forensic Provisions) Act, the matter is to be placed in the arraignment list of Friday 6 December 2013. 3. Bail is refused. 4. I direct that the accused be returned to the Bunya Unit at Cumberland Hospital and remain under the care of the staff of that unit. Catchwords: CRIMINAL LAW - procedure - fitness to plead - murder - fit to be tried Legislation Cited: Mental Health (Forensic Provisions) Act 1990 s 6, s 8, s 10, s 11, s 12, s 29(1)(b), s 30, s 47 Cases Cited: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 R v Presser [1958] VR 45 Category: Principal judgment Parties: Director of Public Prosecutions Brenda Lee Haines Representation: Counsel: Mr L Lungo (Crown) Mr M Ierace (accused) Solicitors: Ms E Sercombe (Office of the Director of Public Prosecutions) Ms A Coultas (Legal Aid) File Number(s): 2001/2339 Judgment 1HIS HONOUR: Brenda Lee Haines, the accused, is charged with the murder of Haibo Wang on 3 March 2001 at Redfern. 2It is the Crown case that on 3 March 2001 the accused had a confrontation with the deceased at his grocery shop. The accused was seen to be armed with a knife and standing over the deceased. The accused was observed leaving the scene with what appeared to be blood on her clothing. The deceased was conveyed to Royal Prince Alfred Hospital where he was pronounced dead as a result of a stab wound to the chest. The accused was arrested. At the time of her arrest, blood stained clothing and shoes were recovered. A listening device that was placed in the accused's cell recorded her admissions to stabbing the deceased. 3A question of the accused's fitness to be tried was raised and on 14 February 2003 the accused was found unfit to be tried and was referred to the Mental Health Review Tribunal. 4On 8 June 2004, the accused was subject to a special hearing in which a jury determined that she had murdered the deceased. Miles AJ sentenced the accused to a limiting term of 17 years to commence on 3 March 2001 and to expire on 2 March 2018. 5On 30 April 2013, the Mental Health Review Tribunal was of the opinion that, pursuant to s 47 Mental Health (Forensic Provisions) Act 1990, the accused has become fit to be tried. 6The Director of Public Prosecutions (the Director) has advised that further proceedings will be taken by the Director in respect of the murder and the court is obliged to hold a further inquiry as to the accused's fitness: s 29(1)(b) Mental Health (Forensic Provisions) Act. Accordingly, pursuant to ss 8 and 10 of Mental Health (Forensic Provisions) Act 1990, Latham J has put the question of the accused's fitness to be tried before me. Section 11 of the Mental Health (Forensic Provisions) Act provides that the question of a person's fitness to be tried for an offence is to be determined by a judge alone. 7The principles that apply in determining an accused's fitness to stand trial for State offences are well-settled. They are stated in R v Presser [1958] VR 45 by Smith J at [48]: "[An accused] 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 proceeding, namely, that it is an inquiry 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. 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, I think, 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." 8Presser has been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230. The length of the trial is also a relevant factor. 9The Mental Health (Forensic Provisions) Act governs the approach to be taken in a fitness inquiry for the offence. The Court is required to approach the inquiry in a non-adversarial manner and to determine the question of fitness on the balance of probabilities: ss 6, 11, and 12 Mental Health (Forensic Provisions) Act. Neither party bears the onus of proof. 10Section 30 Mental Health (Forensic Provisions) Act provides: "(1) If, following a further inquiry under section 29, an accused person is found fit to be tried for an offence, the proceedings brought against the person in respect of the offence are to recommence or continue in accordance with the appropriate criminal procedures. (2) If, following a further inquiry under section 29, an accused person is found unfit to be tried for an offence: (a) in the case of an accused person who has been detained in custody as an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) or in a mental health facility as a forensic patient for a period or continuous periods in the aggregate of not less than 12 months and in respect of whom a special hearing has not been held-the Court must conduct a special hearing, or (b) in the case of any other accused person-the Court may conduct a special hearing (if a special hearing has not been held) or order that the person be returned to the custody or mental health facility from which the person was taken. (3) The Court must notify the Tribunal if it determines that a forensic patient detained in a mental health facility is fit to be tried for an offence." 11Reports from psychiatrists have been tendered. I turn to that material. 12The accused who is 47 years old has been diganosed as suffering from schizoaffective disorder, alcohol abuse, and polysubstance dependence, antisocial, and borderline personality traits and developmental disability. 13There are five reports that discuss the issue of fitness to stand trial. Dr Michael Giuffrida, a forensic psychiatrist, and Larissa Dodds, a clincial psychologist prepared a psychology report and Dr Giuffrida and Dr Martin Reading, a psychiatry registrar prepared a medical report. Both reports are dated 27 March 2013. Dr Stephen Allnutt, a forensic psychiatrist, prepared a report dated 16 July 2013. Dr Giuffrida provided two supplementry reports dated 23 September 2013. 14Dr Giuffrida and Ms Dodds conducted neuropsychological assessments to determine whether or not the accused was fit to plead. Whilst the accused's cognitive ability was considered to be well below average, they reported that there was no evidence to suggest that this should preclude her from being able to participate in the legal process provided that reasonable considerations be made. They opined: (ex D2 p 10): " Regarding the Presser Criteria, [the accused] has on a number of occasions, demonstrated the following: an understanding of the nature of her charge; an understanding of the plea options in relation to the charge, the importance of consulting her lawyer in this matter, as well as an opinion on the nature of her plea; and an ability to generally understand the nature of legal proceedings. With regards to [the accused's] ability to generally follow the proceedings of the court, given that the case related to the Index Event does not appear to be a complicated one, it is likely that she will be able to follow proceedings, again providing that reasonable considerations be made. ... It is the opinion of the Treating Team that consideration be given to finding [the accused] fit to plead." 15Dr Giuffrida and Dr Reading opined in their medical report: (ex D2 p 9): "It is clear that [the accused] is now in a position where she could effectively participate in a new trial if she were to be given the opportunity. She has made it very clear that she wants to go back to court and she is now very happy to participate. Furthermore, she has been able to demonstrate a sustained ability to discuss and talk about these matters over a period of time and on a number of different occasions. ... The treating team find on the their assessment that [the accused] is currently fit to plead. The evidence for this is based on a dramatic improvement in her mental state, that she now successfully meets all the Presser Criteria regarding fitness to plead and lastly, is at a point where it is reasonable to conclude she can effectively participate in the process of a trial were one to be held." 16Dr Allnutt interviewed the accused on 10 July 2013 at the request of the Office of the Director of Public Prosecutions. Dr Allnutt has previously provided opinions on the accused; however, they are not before the me. On the issue of fitness, Dr Allnutt writes (ex F pp 3-4): " [The accused] has capacity to understand the nature of the charges - she understands that there is going to be a Court case about the alleged offending... [The accused] understands the general nature of the proceedings - she understands the role of the lawyer, the prosecution, what evidence is, the role of the jury, the meaning of the terms guilty and not guilty and their consequences; she is capable of understanding the substantial effect of any evidence - she understands that evidence could be used for and against her; she has capacity to plead to the charge - she understands the meaning and consequences of the pleas of guilty and not guilty as well as not guilty by reason of mental illness; she has capacity to make her defence or answer to the charges - in my view with the assistance of counsel, she has capacity to provide a version and would be able to communicate this to counsel and to the Court and as a consequence of this decide on what defence she will rely upon..." 17Dr Allnutt queried the drowsiness that the accused experienced during his interview and formed the view that "if her drowsiness is enduring secondary to medication... [it] raises the concern about her capacity to follow proceedings" (ex F p 4). However, aside from his reservations regarding the accused's drowsiness, he believes that "she has the cognitive capacity to stand trial" (ex F p 4). 18In light of Dr Allnutt's findings the Crown obtained an additional report from Dr Giuffrida dated 23 September 2013. Dr Giuffrida states (at ex G p 3): "[The accused] is on Clozapine in a dose which for her clearly produces significant sedation particularly in the early part of the day and she is also on the mood stabiliser/anticonvulsant medication Sodium Valproate (Epilim) in a dose of 2,000mg a day which is a very substantial dose. Both of those medications therefore are likely to produce significant sedation and inevitably affect her concentration and attention span. For that reason her level of alertness and attention due to the side effects of those medications may be an issue in her capacity to follow proceedings at her trial. I would suggest that a strategy to deal with this difficulty is that on the day or days of the trial on fitness that [the accused's] dose of Clozapine could be reduced. I expect that would increase her attention span and reduce any risk of sedation, I think that is a fairly safe thing to do for one to three days but not beyond that because of the risk of breakthrough symptoms... I trust that will overcome the concern that Dr Allnutt has expressed..." 19Dr Giuffrida provided an additional report to the accused's solicitors dated 23 September 2013 in which he confirmed his opinion that the accused is fit to be tried and he stood by the reasons expressed in the joint report with Dr Reading dated 27 March 2013. Conclusion 20The Presser criteria are to be considered in light of the complexity and the length of the accused's trial. The breaks that the accused will require due to any alertness or intelligence issues will need to be taken into account. The Crown and Mr Ierace SC for the accused estimate that the trial will take some two weeks. Both counsel agree that the factual issues in the trial are not complex. 21The Crown submits that the accused is fit to be tried. Mr Ierace does not oppose that submission. 22It is the opinion of Dr Allnutt, subject to his reservation about the accused's drowsiness, and the opinions of Dr Giuffrida and Dr Reading that the accused is fit to be tried. In my view, Dr Giuffrida's additional report assists in resolving Dr Allnutt's reservation. I accept the opinions of the psychiatrists. 23I am satisfied that the accused is now in a position to plead to the charge and to make her answer to it. She will be able to understand what is going on in court in a general sense and follow the course of the proceedings. She will understand the substantial effect of any evidence that may be given against her. She has sufficient capacity to be able to decide what defence she will rely upon and to make her defence and her version of the facts known to the Court. 24Accordingly, I find on the balance of probabilities that the accused is fit to stand trial. 25I recommend that during the trial the accused's medication be regulated as appropriate and breaks be provided when necessary. I would also suggest that the recommendations made by Dr Giuffrida and Ms Dodds at page 10 of their report (ex D1) be taken into account during the course of the trial. 26I make the following orders: (1)I find that the accused Brenda Lee Haines is fit to be tried for the murder of Haibo Wang on 3 March 2001 at Redfern. (2)In accordance with s 30 Mental Health (Forensic Provisions) Act, the matter is to be placed in the arraignment list of Friday 6 December 2013. (3)Bail is refused. (4)I direct that the accused be returned to the Bunya Unit at Cumberland Hospital and remain under the care of the staff of that unit. ********** 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: 06 November 2013