District Court New South Wales Medium Neutral Citation: Ali Nasrallah v Regina [2016] NSWDC 101 Hearing dates: 24 and 26 May 2016 Date of orders: 09 June 2016 Decision date: 09 June 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: (1) I find that the accused is presently fit to be tried. (2) The matter is listed on 17 June 2016 to fix a trial date. Catchwords: CRIMINAL LAW – sexual intercourse without consent- recklessly inflict actual bodily harm MENTAL HEALTH – fitness to be tried – Presser criteria – factors – unfitness – present condition of accused – determination on balance of probabilities – onus of proof PROCEDURAL – application for stay of prosecution – discretionary power – exceptional circumstances – onus – disadvantage or prejudice – administration of justice – erosion of public confidence Legislation Cited: Crimes Act 1900 s61K(a) Mental Health (Forensic Provisions) Act 1990 ss. 6, 11(1), 12(2), 12(3) Cases Cited: R v Dashwood [1943] 1 KB 1 R v Presser [1958] VR 45 Ngatayi v The Queen (1980) 147 CLR 1 Kesavarajah v The Queen (1994) 181 CLR 230 Eastman v The Queen (2000) 203 CLR 1 R v Sexton (2000) 77 SASR 405 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 R v Rivkin (2004) 59 NSWLR 284 Category: Principal judgment Parties: Ali Nasrallah (Applicant) Regina (Respondent) Representation: Counsel: Mr Z Khan (Applicant) Ms A Seeto (Repsondent) Solicitors: SE O'Connor, Legal Aid New South Wales (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/00082807 Judgment 1. Ali Nasrallah (the accused) has been charged with one count of recklessly inflicting actual bodily harm with intent to have sexual intercourse pursuant to section 61K(a) Crimes Act 1900. 2. The charge arises out of an incident on 18 March 2014 at around 8:30am. It is alleged that the accused dragged the complainant by her shoulders, threw her on the couch, held her down by her shoulders and arms and attempted to engage in sexual intercourse with her. 3. CT scans from 1998 and 2011 were interpreted to demonstrate an area of frontal lobe atrophy and on that basis the accused was diagnosed to be suffering from frontotemporal dementia (FTD); an organic form of dementia. 4. It is submitted on behalf of the accused that by reason of his cognitive deficiencies and possible FTD he is unfit to be tried. Relevant Law Fitness to Plead 1. Whether an accused person is unfit to be tried is determined by judge alone on the balance of probabilities: sections 11(1) and 6 Mental Health (Forensic Provisions) Act 1900. 2. An inquiry into fitness is not an adversarial matter and no party bears any onus of proof: sections 12(2) and 12(3) Mental Health (Forensic Provisions) Act 1900. Purpose 1. The common law guarantees to an accused person the right a fair trial, one aspect of which is that a trial cannot proceed unless the accused person is fit to plead: Eastman v The Queen (2000) 203 CLR 1 at [64]. 2. It is a cardinal principle of the common law that no person can be tried for a crime unless they are in a mental condition to defend themselves: R v Dashwood [1943] 1 KB 1 at 4. 3. Where there is an unresolved question of fitness to be tried, or the question of fitness is not determined properly in accordance with law, there is a fundamental failure in the trial process: Eastman at [62] and Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [115]-[118] per Heydon J. 4. Unfitness can arise by reason of the accused's mental health or by reason of some physical or intellectual disability, or a combination of both: R v Rivkin (2004) 59 NSWLR 284 at [284]. The condition may be entirely physical, for example, coronary artery disease. There does not need to be any underlying illness or formal diagnosis as long as there is an impaired or disordered mental process: R v Sexton (2000) 77 SASR 405 at [46] and [54]. Test 1. In determining whether an accused is fit to be tried the Court is to consider whether they meet certain minimum standards articulated in R v Presser [1958] VR 45 at 48. In order to be fit to stand trial an accused is required: "…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 that 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." 1. The test to determine fitness must be applied in a reasonable and commonsense way: Presser at 48; Ngatayi v The Queen (1980) 147 CLR 1 at 8. 2. In determining the question of fitness the judge must take into account not only the present condition of the accused, but also the likely future condition of the accused having regard to the estimated length of the trial: Kesavarajah v The Queen (1994) 181 CLR 230. Evidence 1. Tendered on the application was a Crown bundle containing: 1. A copy of the indictment; 2. Crown case statement; 3. Reports of Dr Ashkar dated 24 May 2016, 23 May 2016, 27 November 2016; 4. Reports of Dr Pulman dated 20 May 2016, 10 May 2016, 6 October 2015; 5. Reports of Dr Furst dated 22 May 2016, 9 March 2016; 6. Report of Professor Hodges dated 10 November 2016; 7. Reports of Dr Hassan dated 20 August 2012, 17 May 2012, 2 April 2012 and 29 September 2011; 8. Report of Dr Allam dated 22 October 2011; and 9. CT scan results dated 9 June 2011 and 2 February 1998. 1. The Court also received an email from Professor Hodges dated 25 May 2015, a copy of an apprehended violence order made against the accused on 28 March 2014, an affidavit of Joanne Pollock dated 23 May 2016, an affidavit of Monika Brayovic dated 23 May 2016, and a transcript and video of the electronically recorded interview between the police and the accused. Dr Richard Furst 1. Dr Richard Furst, forensic psychiatrist, was present at the fitness inquiry and was cross-examined. 2. Dr Furst met with the accused and an interpreter on 8 December 2015 for around an hour. 3. In December 2015 the accused was taking Seroquel, Kalma and Xanax. 4. Dr Furst noted that the accused was vague with respect to personal details, reported forgetting and losing things, and regularly asked the interpreter to repeat questions. The accused reported sometimes feeling paranoid however Dr Furst noted that there were no signs of psychosis. 5. Dr Furst found that there was evidence that the accused had cognitive impairment with deficits in his memory, attention, and processing speed. Dr Furst noted that the performance of the accused varied which could suggest an exaggeration of symptoms and/or questionable effort. Dr Furst was unable to formally diagnose the accused with FTD, however found that the cognitive deficits of the accused were suggestive of the early stages of dementia. 6. Dr Furst opined that the accused did not have an adequate understanding of the charge against him, plea options, the role of participants in court, court processes, or the substantial effect of evidence against him. The accused would be likely to struggle to raise a defence or instruct his lawyers. 7. Dr Furst determined that the accused was unfit to be tried. 8. Dr Furst provided a supplementary report in which stated that viewing the ERISP of the accused did not change the opinion given in his first report. 9. Giving evidence in Court Dr Furst stated that he was now less clear on the question of fitness, considering that it was borderline between whether the accused was fit or unfit. Dr Furst gave evidence that he would not exclude exaggeration or a depressive condition as the causes of the accused's symptoms and cognitive deficiency. In Dr Furst's opinion the inherent stresses of court would be likely to make the accused's symptoms worse. 10. Dr Furst explained that Seroquel is an anti-psychotic drug that has fatigue and sedation as side effects. Similarly, Xanax has sedation and impairment of short term memory as side effects. 11. Dr Furst opined that fatigue would be an issue with the accused needing breaks after around an hour in court. Dr Furst opined that the accused would be assisted by others speaking slowly, using simple language, having the benefit of an interpreter and having a support person in court. Dr Peter Ashkar 1. Dr Peter Ashkar, forensic psychologist and clinical neuropsychologist, was present at the fitness inquiry and was cross-examined. 2. Dr Ashkar met with the accused with an interpreter on 30 October 2014 and 13 November 2014 for approximately 4 hours in total. He also met with Ms Monica Brayovic for approximately half an hour. 3. At the time of assessment the accused was not fully oriented and was unable to tell Dr Ashkar the date or where they were. The accused had difficulty with spatial orientation and navigation around the office where the assessment took place. The accused had difficulty sustaining attention for more than 30 minutes and recalling instructions and information from memory. The accused performed poorly on cognitive screening tests and it was reported that his cognitive impairments interfere with his independence in carrying out daily activities. These cognitive impairments could not be explained by language/cultural factors, emotional/psychiatric factors or medications being taken by the accused. 4. According to Ms Brayovic the accused began to exhibit cognitive difficulties in around 2008 or 2009. At the time of the report the accused required prompting to perform basic personal care tasks, slept for most of the day, had poor appetite, and became angry for no apparent reason. She had been taking care of the basic needs of the accused for approximately nine months at the date of the report. 5. Responses of the accused to a screening questionnaire of psychological distress showed him to have extremely severe levels of depression and anxiety, as well as severe levels of stress. 6. Dr Ashkar opined that the accused met the diagnostic criteria for a Major Neurocognitive Disorder, and that results on a range of tests point to probable FTD. Dr Ashkar stated that based on information provided by Ms Brayovic that the accused appeared to be at the 'severe' stage of functional dependence and behavioural change. 7. Dr Ashkar opined that the accused could fulfil some of the Presser criteria, namely he could understand and plead to the charge, and understand generally the nature of court proceedings. However due to his deficiencies in abstract understanding and reasoning the accused would not be able to understand generally what is going on in court, put forward a defence, exercise his right to challenge, instruct his lawyers or understand the substantial effect of evidence against him. 8. Dr Ashkar determined that the accused was not fit to stand trial at the time of preparing the report or at any time in the future. 9. In his report dated 23 May 2016, Dr Ashkar opined that in the ERISP the accused appeared to sustain his concentration, and had reasonable recall of relevant events. The accused appeared to understand the nature of the charges against him and Dr Ashkar concluded that there was little in the accused's behaviour that would raise concerns about his fitness to be tried. 10. Dr Ashkar met with the accused again and administered tests in order to write a supplementary report dated 24 May 2016. 11. Dr Ashkar concluded that there was compelling evidence that the accused was exaggerating his cognitive difficulties. The accused demonstrated reasonable comprehension and communication skills during the assessment which suggest that he would be able to follow generally the course of a trial and assist with a defence. The accused understood the nature of the charge against him when it was explained, was clear about his intention to plead not guilty and understood the consequences of adhering to this plea. 12. Dr Ashkar opined that the accused has difficulties sustaining attention and suffers from cognitive fatigue. Provided that the court can accommodate for these difficulties, Dr Ashkar could not see any reason that the accused should not be tried. 13. Giving evidence in court Dr Ashkar stated that the accused consistently performed within the normal limits on tests of declarative memory. [1] Dr Ashkar opined that the accused would benefit strongly from visual aids to support his ability to understand what is happening in court and that it would be prudent for lawyers of the accused to check regularly throughout each day of trial that the accused has understood what has happened in court. Dr Ashkar agreed with Dr Furst that any symptoms experienced by the accused would likely be exacerbated by stress. Dr Susan Pulman 1. Dr Susan Pulman, forensic psychologist and clinical neuropsychologist, was present at the fitness inquiry and was cross-examined. 2. Dr Pulman met with the accused on two occasions on 2 June 2015 (accompanied by his sister) and 14 July 2015 (at which an interpreter was present). Dr Pulman described the accused as being uncooperative, disengaged and disinterested in her report of 6 October 2015. For this reason it was not possible to conduct a comprehensive neuropsychological assessment. The accused was oriented as to time but not place. His attention and working memory was intact. 3. Dr Pulman reviewed the ERISP video footage and noted that the accused was able to remember his address, and appeared to understand and respond to police questions. Dr Pulman opined that this behaviour is not consistent with the cognitive decline that would be expected in an individual with dementia. 4. Dr Pulman reported that the accused stated his innocence, was able to explain the difference between guilty and not guilty, understood the role of the judge and appeared to understand the role of the prosecutor when it was explained. The accused did not understand the role of the jury. 5. Dr Ashkar had opined that the accused was at the severe stage of FTD progression. However, Dr Pulman noted that it would be unusual for a patient with severe dementia to live alone or drive. Like Dr Ashkar, Dr Pulman noted that the accused reported symptoms of extremely severe depression and anxiety and moderate stress. 6. The performance of the accused on tests of effort varied. 7. Dr Pulman determined that diagnosis of the accused was uncertain but noted that there was clear evidence of frontal lobe atrophy and behavioural symptoms consistent with FTD. Such symptoms included socially inappropriate behaviours, apathy and wanting sweet foods. However Dr Pulman explained that patients with FTD typically do not experience much memory loss until the latter stages of the disease, experience difficulty sustaining attentional focus, lack insight, and typically do not report severe depression. The accused has reported memory problems, did not appear to Dr Pulman to have difficulties with maintaining attention, exhibited insight and has reported severe depression. 8. Dr Pulman believed that the inconsistencies in cognitive ability suggest exaggeration of deficiencies. She was unable to formulate an opinion as to the fitness of the accused. 9. In her report of 20 May 2016, Dr Pulman concluded that the accused was likely, on the balance of probabilities, to be fit to stand trial. Professor John Hodges 1. Professor Hodges is a Professor of Cognitive Neurology and international expert on FTD. 2. Prof Hodges met with the accused, who was accompanied by Ms Brayovic and an interpreter, on 3 November 2015. The accused was found by Prof Hodges to be unable or unwilling to converse. 3. The accused reported forgetting things, however denied experiencing difficulty with communication, organisation or self-care. Ms Brayovic reported noticing symptoms in the accused in around 2006. The predominant symptom of the accused was reported as apathy with the accused having minimal social contact, requiring persuasion to shower and change clothes, and exhibiting poor motivation. 4. Based on Ms Brayovic's reports, Prof Hodges noted that the accused had possible FTD. He explained this to mean that symptoms of FTD are present without evidence of brain atrophy. This is an unstable diagnostic category with only about 50% of patients progressing with the syndrome over 3 years. Prof Hodges stated that the symptoms experienced by the accused may also have been attributable to a range of serious psychiatric disorders. 5. Prof Hodges noted that it would be extremely unusual for a person as 'impaired' as the accused when it comes to performing simple tasks to be living alone. 6. Prof Hodges concluded that the balance of probability is against a diagnosis of FTD due to the presence of features not seen in FTD patients such as disorientation and poor visual-spatial function), normal MRI and inability to exclude other psychiatric disorders. 7. In an email response to further questions posed to Prof Hodges it was explained that the judgment of atrophy on an MRI is subjective. Dr Bassel Hassan 1. In his report of 29 September 2011, Dr Hassan noted that the accused had suffered anxiety and low mood for at least a few years. The accused reported some symptoms of paranoia. The cognitive deficits of the accused were reported to have commenced a few years after a car accident that occurred in 2004. Dr Hassan opined that the accused's cognitive deficits were relatively mild, but not normal and "quite worrying for early onset dementia." 2. In his report of 17 May 2012, Dr Hassan opined that the most likely diagnosis of the accused was FTD, but that he had some reservations. 3. In his report of 20 August 2012, Dr Hassan, having reviewed MRI images, noted a significant amount of frontal atrophy consistent with FTD. Dr Mohammed Allam 1. Dr Allam reported on 22 October 2011, that the accused displayed symptoms of frontal lobe dementia/atrophy and required further neuropsychiatric assessment. Monika Brayovic 1. The accused's sister, Ms Brayovic, was present at the fitness inquiry and was not required for cross-examination. 2. In her affidavit affirmed 23 May 2016 Ms Brayovic deposed that she noticed the accused beginning to experience difficulties with his memory in around 2010 or 2011. 3. Around 12 to 18 months ago the eldest son of the accused, Hussein, moved in with the accused to assist with his care. Ms Brayovic and Hussein share responsibility for caring for the accused including paying his bills and purchasing things that he wants. 4. Ms Brayovic buys groceries for the accused and cooks his lunch and dinner every day. 5. Ms Brayovic deposed that the accused stopped driving around 9 months ago due to his poor concentration and tendency to get lost. Joanne Pollock 1. The solicitor of the accused, Joanne Pollock, was present at the fitness inquiry and was not required for cross-examination. 2. In her affidavit affirmed 23 May 2016, Ms Pollock deposed that she had had carriage of this matter since 16 April 2015 and had met with the accused on at least 4 occasions. 3. Ms Pollock deposed that the accused has provided some instructions and can communicate how he intends to plead. In meetings the accused exhibited little understanding of what he was charged with, the trial process, the role of participants in court other than herself and the Judge. The accused was unable to remember concepts after they have been explained many times and has difficulty with concentration. Consideration 1. The purpose of the medical evidence is to provide the Court with evidence as to the accused's cognitive functioning. It is for the Court to decide how to apply and weigh that evidence in determining if the accused is fit to be tried by reference to the Presser criteria. 2. It is uncontroversial that the accused first sought treatment for anxiety and depression in about 2011. At that time he gave a history of suffering from those symptoms for a few years. The seeking of that treatment corresponds with his sister's observations that he suffered psychological effects after the breakdown of his marriage. 3. The accused's treating doctors referred him for CT scans of his brain. Those scans were interpreted to reveal an organic cause of his symptoms, which was subsequently identified as FTD. 4. During the course of gathering material to assess the accused's fitness to stand trial, Dr Pulman suggested that he be examined by Prof Hodges, an international expert on FTD. Prof Hodges conducted an MRI scan of the brain. Prof Hodges was of the opinion that the MRI did not support a probable diagnosis. Prof Hodges diagnosed possible FTD, which I understand means that there is a 50% chance that he would progress to a probable diagnosis within 3 years. Prof Hodges reported that it was possible that the accused was suffering from a serious psychiatric illness (such as Major Depression or schizophrenia) the symptoms of which were mimicking FTD. Dr Furst could not find any evidence of the accused suffering from a serious psychiatric illness. 5. Considering all of the medical evidence I am left with the conclusions that the accused does not suffer from FTD or a serious psychiatric illness. The psychologists agree that the accused is feigning the extent of his symptoms or deliberately not making a reasonable effort to undertake their tests. 6. There is some anecdotal evidence that he has suffered from symptoms since at least 2011. I am not satisfied on the evidence that the accused's symptoms are affecting him to such an extent that he cannot satisfy the Presser requirements. 7. I have considered the ERISP that the accused participated in on 18 March 2014, which was the day of the alleged incident giving rise to the charges. It should be noted that the accused was not provided with an interpreter for the purpose of conducting the ERISP, despite the fact that he indicated he needed an interpreter on a number of occasions. There were some clear misunderstandings on the part of the accused during the course of the interview. These are adequately explained by the unavailability of an interpreter. However, the accused in my view gave a good account of his version of the allegations in a narrative form, for example A159-A164 inclusive, and could then answer specific clarifying questions on the narrative that he had given, for example A173-A185. 8. I have carefully considered the evidence of the solicitor for the accused and it appears to suggest that the accused has some difficulty in understanding some elements of the procedure and concentrating for periods of time. It will probably be appropriate to make some concessions to assist the accused in the trial by taking breaks after 1 hour of hearing time, but that matter should ultimately be assessed by the trial judge at the appropriate time. 9. On the evidence as it currently stands I am satisfied that the accused can satisfy the Presser criteria and is fit to be tried. The law requires the Court to assess his fitness to be tried on an ongoing basis and it may be appropriate for the Court to revisit this finding at a later time in the proceedings. 10. The orders I make are: 1. I find that the accused is presently fit to be tried. 2. The matter is listed on 17 June 2016 to fix a trial date. ********** Endnote 1. This was explained by Dr Ashkar as the "type of memory he would need to support his ability to learn and retain information such as that which might be made available to him throughout a trial." 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