Supreme Court New South Wales Medium Neutral Citation: R v Aller [2014] NSWSC 360 Hearing dates: 27/03/2014 Decision date: 27 March 2014 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) I find the accused, Michael Aller, is unfit to be tried. (2) In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. (3) In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand Mr Aller in custody, until the determination of the Mental Health Review Tribunal pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990. (4) I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within seven days: (a) a copy of this finding and my reasons; (b) a copy of the orders which I have made; (c) a copy of the transcript of these proceedings; and (d) a copy of Exhibit A. Catchwords: CRIMINAL LAW - accused charged with one count of murder - whether accused unfit to be tried - where accused continues to suffer from symptoms of chronic schizophrenic illness - substantial expert medical evidence suggesting that accused is unfit to stand trial - whether accused's illness would enable a fair trial - referred to Mental Health Review Tribunal - no issue of principle. Legislation Cited: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 R v Robinson [2008] NSWCCA 64 The Queen v Presser [1958] VR 45 Category: Principal judgment Parties: The Crown Michael John Aller (Accused) Representation: Counsel: K McKay (Crown) C Smith (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused) File Number(s): 2012/00240127 EX TEMPORE Judgment 1Michael John Aller is charged with one count of murder, contrary to s 18(i)(a) of the Crimes Act 1900, in relation to the death of Amy Aiton on 31 July 2012 at Narara. 2Mr Aller was committed to stand trial in the Supreme Court of New South Wales by the Local Court of New South Wales. On 7 March 2014, Johnson J determined, pursuant to s 8 of the Mental Health (Forensic Provisions) Act 1990 ("the Forensic Provisions Act"), that an inquiry should be conducted as to the question of Mr Aller's unfitness to be tried for the offence of murder. Mr Aller has not been arraigned. 3I have today conducted an inquiry pursuant to the provisions of Pt 2 of the Forensic Provisions Act as to whether Mr Aller is unfit to be tried for the offence of murder. Applicable Legal Principles 4There are a number of general principles of law that are relevant to this inquiry. 5The first is that the question of unfitness of Mr Aller to be tried is to be determined on the balance of probabilities: s 6 of the Forensic Provisions Act. 6The second is that the inquiry is not to be conducted, and it has not been conducted, in an adversarial manner: s 12(2) of the Forensic Provisions Act. 7The final general principle is that there is no onus of proof resting on either the Crown or Mr Aller: s 12(3) of the Forensic Provisions Act. 8In giving this judgment and making any determination on the inquiry, I am required to identify the principles of law which I apply, and the findings of fact which I am satisfied should be made: s 11(2) of the Forensic Provisions Act. 9I commence with an identification of the substantive principles of law relevant to the issue of whether a person is, or is not, fit to stand trial. The principles are of longstanding, and can be found in the decision of The Queen v Presser [1958] VR 45 at 48 per Smith J and in the decision of the High Court of Australia in Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 at 246 per Mason CJ, Toohey and Gaudron JJ. The principles are designed, or intended, to give effect to the guarantee of the common law that any person accused of a crime is entitled to a fair trial according to law. A fair trial according to law is a fundamental precept of the criminal justice system. 10One aspect of that guarantee is that if a criminal trial cannot fairly proceed when an accused is not fit to plead to stand trial, then such a trial ought not proceed. 11I will try and summarise the principles of law about whether Mr Aller is or is not fit to stand trial. I do so, in order that the findings of fact in my determination are more readily understood. 12The consideration of these principles must take place in the context of the length and complexity of the particular trial proceedings. Here, any trial is likely to last for at least two weeks. The criteria for fitness to be tried, which are minimum standards, are that an accused such as Mr Aller, must be able to: (a)understand what he has been charged with; (b)enter a plea to the charge; (c)exercise his right to challenge any juror; (d)understand generally the nature of the proceedings, so as to understand what is going on in court in a general sense, namely, that it is an inquiry by a judge and jury as to whether he did commit the offence with which he is charged; (e)follow the course of the proceedings, so as to understand what is happening without the necessity to understand all of the various aspects of court formality; (f)to understand the substantial effect of any evidence which may be given against him in support of the prosecution; and, (g)to give his counsel instructions, including his version of the facts, which are sufficient to make his defence and answer the charge. See Presser at 48, Kesavarajah at 246, R v Robinson [2008] NSWCCA 64 at [65]-[66]. Evidence 13In this inquiry, under the Forensic Provisions Act, I have available to me the following material. Firstly, a statement of the Crown case, which sets out the facts which, it is accepted, the Crown can prove at a trial. 14Secondly, two reports of an expert psychiatrist, Dr Olav Nielssen, dated 4 September 2013 and 28 February 2014, and lastly, the expert evidence of Dr Richard Furst, a forensic psychiatrist, set out in his reports dated 8 November 2013 and 18 February 2014. Proved Facts 15According to the Crown Case Statement, in the weeks before Ms Aiton was killed, the accused, Mr Aller, was staying with her in her townhouse. It is apparent that they had met only some weeks before her death, and had shortly after meeting commenced an intimate relationship. 16The accused had been attending a Narcotics Anonymous meeting, and had met the deceased, Ms Aiton, with the assistance of a man he had met there. 17At about 9.30am on 1 August 2012, the accused rang his mother and asked her to do him a very big favour. He said to her, "[d]o you have the address here?" His mother said "Yes". The accused then said to his mother, "[c]ould you ring the police, to come to the unit, as I have just stabbed Amy to death". He then hung up, and could not be contacted. 18It appears that the accused then left those premises because, at about 2pm on that day, he approached uniformed police officers at Central Railway Station and said that he needed to speak with someone because he was wanted for the murder of his girlfriend. The accused was interviewed, and shortly, was charged. He has been in custody ever since. 19It is clear that the attack on Ms Aiton was of a violent nature, requiring someone to use significant force to inflict the various wounds from which she died. Expert Evidence 20The first report of Dr Richard Furst, dated 8 November 2013, records the result of a lengthy conference that he had in 2013 with Mr Aller. He had previously consulted Mr Aller, and he was asked to provide an updated opinion. At the time that Dr Furst consulted with Mr Aller, it is clear that Mr Aller was suffering from symptoms of a florid mental illness. He was medicated with a series of prescription drugs, directed to controlling and mitigating the effects of his mental illness. 21Dr Furst expressed this view about Mr Aller in 2013, which I accept. He said: "His concentration is likely to be impaired by his auditory hallucinations and current mood disturbance. He is likely to struggle to endure a trial in his current condition. His overall understanding of his legal situation and capacity to participate in a trial has deteriorated over recent weeks, with symptoms of acute depression and persistent auditory hallucinations. His capacity to follow the proceedings and give logical instructions and/or understand legal advice given to him is now impaired. He would be a vulnerable witness. He may also enter a plea without sufficient understanding or consideration of the legal implications, either in response to auditory hallucinations or feelings of nihilism/guilt. He lacks endurance. Having regard to the standards of R v Presser and Kesavarajah, I am now of the opinion that Mr Aller is currently unfit to be tried or enter a plea. He may well improve to the point that he becomes fit to be tried over the next 12 months, depending on his response to treatment." 22Dr Furst went on to recommend consideration of a trial of further medication to assist with Mr Aller's mental illness. 23Dr Furst consulted with Mr Aller again in 18 February 2014. He conducted a mental state examination of Mr Aller, and reviewed various contemporaneous, relevant documents, including Justice Health medical records. Dr Furst expressed this conclusion, which I also accept: "Mr Aller remains psychotic, attempted to kill himself again in December, is paranoid, experiences auditory hallucinations, and is very impaired by virtue of his psychosis. A criminal trial would be an additional stressor, especially given his preoccupation with 'evil' and irrational patterns of thinking. He remains at high risk of self-harm and of dying in custody by virtue of his treatment resistant mental illness and suicide risk. His discharge from the Long Bay Hospital may well have been premature, especially considering his symptoms and signs of mental illness, risk profile and lack of response to his current treatment. In my opinion, he continues to be a mentally ill person, particularly with regard to his continuing condition, psychotic symptoms and multiple suicide attempts. His paranoid interpretations of staff and legal participants in Court, will prevent him from deciding on his plea in a rational manner, giving proper instructions, understanding proceedings, making out his defence, and enduring a trial." 24Dr Furst adhered to his opinion, that by reference to the legal tests referred to above, Mr Aller was unfit to be tried, and likely to remain so for a period of the next 12 months. 25The Crown made arrangements for Dr Olav Nielssen to consult with Mr Aller in February 2014, and make an assessment of him, particularly in light of the two reports of Dr Furst which were supplied to Dr Nielssen. 26I note that in September 2013, after consultations which took place in the course of 2013, Dr Nielssen had expressed the opinion that, as at September 2013, Mr Aller was fit to enter a plea and fit to stand trial. Dr Nielsen had also expressed the view that Mr Aller should remain fit, providing he continued to receive adequate treatment. However, by February 2014, in light of Mr Aller's intervening condition, Dr Nielssen had reconsidered his opinion. 27Dr Nielssen said in his report of 28 February 2014 that he was satisfied that Mr Aller's mental state had deteriorated in the six months or so since the previous interview. He noted that during that time, Mr Aller's symptoms of schizophrenia had continued, and that those symptoms had been the precipitating cause of at least his second, if not his third, suicide attempt. 28Dr Nielssen also noted that there was a significant difference in the way in which Mr Aller was able to respond to the questions asked of him in this February 2014 interview, when compared with the 2013 interview. 29Dr Nielssen, in his report of 28 February 2014, expressed this opinion, which I accept: "Based on the observations made by Dr Furst, and Mr Aller's presentation at the time of the recent interview, I formed the impression that Mr Aller has experienced a relapse of his chronic schizophrenic illness. The reasons for the deterioration in his condition are unclear, as it seems he has received consistent treatment with adequate doses of medication in the prison hospital and at the mental health area of the MRRC. However, potential causes of the progression of psychotic illness include neurological changes arising as a result of hypoxic brain damage from attempted hanging, or from Wernicke's Encephalopathy associated with repeated episodes of Delirium Tremens. Based on his recent presentation, I concur with the opinion of Dr Furst that Mr Aller is now unfit for trial. He was unable to provide an adequate account of how he might respond to the charges in a way that confirmed he was able to provide his legal representatives with reliable instructions. He was also unable to demonstrate that he understood the procedure followed in court or that he could follow any proceeding in an adequate way. Mr Aller has a condition that is generally amenable to treatment. However, the emergence of a more severe form of mental illness, despite continuous treatment suggests that his prognosis is poor, and he is unlikely to become fit for trial in the next 12 months." Submissions 30The Crown submits that the Court should accept the expert opinions of both Dr Nielssen and Dr Furst and that, accordingly, it is open to the Court to be satisfied that Mr Aller's current mental state falls substantially below a number of the minimum criteria which the law requires before a person stands trial. 31Mr Smith, counsel for Mr Aller, submits that the material provides overwhelming support for the Court to conclude that Mr Aller would not be able to understand the nature of the proceedings in court; he would not be to be able to follow the course of the proceedings, nor understand what was happening;, he would not understand the substantial effect of any evidence which may be given against him in support of the prosecution; and he would not be able to give his counsel instructions, including his version of the events, sufficient to make out a defence and answer the charge. Discernment 32As I have said, it is a feature of the common law that a criminal trial cannot proceed fairly if an accused does not understand what is happening, and is unable to give instructions with respect to any defence which may be open to him. 33Of course, a finding that an accused is unfit to stand trial is one which has serious effects upon an accused, because what follows from such a finding is, in effect, indefinite incarceration. It is ordinarily in the interests of an accused to be brought to trial as soon as is possible, rather than suffer such incarceration. 34However, one has to balance, in conducting this inquiry, the public interest in having people accused of serious criminal offences tried, and a determination made by a jury, as to whether a person is or is not guilty of an offence, with subsequent punishment, if that be appropriate, together with the accused's own interests in having a trial as soon as possible, against the fairness of any such trial. In undertaking that balance, I am abundantly satisfied on the evidence at this inquiry, that Mr Aller is presently mentally ill. Although being treated, his mental illness is such that it would not enable a fair trial to take place because, putting it as simply as I can, Mr Aller would not understand what was happening, and could not give his counsel any rational instructions to enable his counsel to properly conduct a defence. It is clear to me that this position is unlikely to change in the next 12 months. 35Accordingly, I am well satisfied, on the material before me, that Mr Aller is presently unfit to be tried for the offence of murder of Ms Aiton on 31 July 2012. 36In those circumstances I make the following orders: (1)I find the accused, Michael Aller, is unfit to be tried. (2)In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. (3)In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand Mr Aller in custody, until the determination of the Mental Health Review Tribunal pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990. (4)I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within seven days: (a)a copy of this finding and my reasons; (b)a copy of the orders which I have made; (c)a copy of the transcript of these proceedings; and (d)a copy of Exhibit A. ********** 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: 01 April 2014