Supreme Court New South Wales Medium Neutral Citation: R v Graf [2019] NSWSC 1767 Hearing dates: 9 December 2019 Date of orders: 09 December 2019 Decision date: 09 December 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) The accused is unfit to be tried. (2) In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the 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 the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or until he is released to bail or otherwise in accordance with the law. (4) I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days: (a) A copy of my findings and this judgment. (b) A copy of the orders which I have made. (c) A copy of the transcript of the proceedings. (d) A copy of the exhibits in the proceedings. (5) I direct that Corrective Services do not remove Mr Graf from the AVL facilities until he is spoken to by his lawyers. Catchwords: CRIMINAL LAW – murder – fitness to stand trial – treatment resistant schizophrenia – Presser test – relevant criteria – delusional thoughts – disordered speech – whimsicalised – sexual genome castrated – where accused's fitness changed over time – unanimous opinion of experts – inability to focus on evidence – inability to instruct counsel – inability to present defence Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5 - 16. Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Billy Krey [2019] NSWSC 762 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina James Graf Representation: Counsel: S Hughes (Regina) I Nash (James Graf) Solicitors: Office of the Director of Public Prosecutions (Regina) Legal Aid Commission of New South Wales (James Graf) File Number(s): 2018/00253065 Publication restriction: Nil EX TEMPORE Judgment (Revised) 1. HAMILL J: James Patrick Graf is charged with the murder of his father. The offence was allegedly committed on 16 August 2018 and the circumstances of the alleged murder are set out in a Crown Case Statement which is part of Exhibit A in the current proceedings. 2. The offence occurred following what appeared to be an argument over not very much in a domestic setting and the allegation is that Mr Graf struck his father a number of blows and after that obtained a knife and stabbed him in the neck on several occasions. 3. At about 6:00pm, or a little bit after that, Mr Graf called Triple-O and said certain things including: * Unknown persons had stabbed his father. * That he saw the person who stabbed his father. * That he was kicking him in the face because he was trying to breath. 1. The cause of death of Mr Graf's father was the combined effect of stab wounds to the neck and cranio-facial trauma. One of the stab wounds penetrated the internal jugular vein. There were no obvious defence injuries which would make sense, if the sequence is as the prosecution allege; that is, that there were initially a number of blunt force injuries caused by fists and perhaps kicking and it was only after that that the knife was obtained and used. 2. Mr Graf took part in an electronically recorded interview with police and he provided a number of answers in relation to what happened, some of which may have, at least in retrospect, portrayed a serious underlying mental health issue. Some of those things included (and I am here quoting the extracts of the recorded interview set out in the prosecution case statement): * [The deceased] wanted to eloquent a piece of deficit from his brain tissue. * He whimiscalised me. * He confiscated using the soundwave, so I punched him. * Lance was my discussant. * I just wanted to make sure that he stopped serving dinner every night like with paprika on top. * He drank milk and he inducted it on the table. So, milk is not a knife but is what starts the mind, so I picked up a knife and cut him. * He tried to exhilarate his urn so I punched him in the jaw and he went down. * I knew when I was beating him up on the floor that if he woke up and had the first word he would fuckin' all raised promortal existence from the sexual genome and would be just castrated. 1. The legal representatives of Mr Graf retained a psychiatrist, Dr Sathish Dayalan, and he provided a report on 1 April 2019 indicating, amongst other things, that his opinion was that Mr Graf was not, at that stage, fit to stand trial. 2. The prosecution then retained the services of Dr Yvonne Skinner, another well qualified psychiatrist, and she provided a report dated 16 August 2019. Dr Skinner expressed a similar view; that is, that Mr Graf was at that stage not fit to stand trial. 3. Mr Graf remained in custody although within a psychiatric unit within the Corrective Services Department. He received treatment, and by the end of November 2019, his symptoms appeared to have diminished to a substantial degree. 4. I should just go back to say that both Dr Dayalan and Dr Skinner recounted a psychiatric history and a number of symptoms which each found was completely consistent with Mr Graf suffering for many years, and specifically and importantly at the time of the alleged murder and in the year or so thereafter, with schizophrenia. The history and symptoms recited by the doctors included: * In 2011, there was a presumptive diagnosis of schizophreniform psychosis and a psychiatrist at Mildura said that Mr Graf was displaying "clear signs of an evolving psychotic illness". * There is a family history of schizophrenia. * In 2014 there were several relapses due to non-compliance with his medication. * He expressed "delusional ideas about his left and right side of the brain having met at a point". * In 2018 he told a psychiatrist that his father had tried to use "my female potency against me". * He described his mother as a dishwasher and his father as "a positioner in the house" who had "thrown collateral timing at him". * He occasionally smiled inappropriately during the police interview while displaying a blunted affect. 1. Returning to the narrative, for about a year leading up to today's date, Mr Graf has been under the care of Dr Martin Reading, a psychiatrist in the employ of Corrective Services, and he wrote to Mr Graf's legal representatives on 13 September 2019, indicating that there had been an improvement in Mr Graf's condition. As a result of that both parties, that is Mr Graf's lawyers and the Director of Public Prosecutions, had their respective psychiatrists re-examine Mr Graf. 2. So it was that on the 4 November 2019, Dr Dayalan provided a new report in which he indicated that at that stage he felt that Mr Graf was fit to stand trial. Similarly, Dr Skinner revised her opinion based on the improvement in Mr Graf's condition and indicated in her report of 18 November 2019 that at the time of her examination, which was 14 November 2019, Mr Graf was fit to stand trial. 3. The basis of the opinions given earlier, and then in November, were concerned with an analysis of what are known as the Presser criteria to determine whether or not a person is fit to stand trial. Those criteria come from a case in 1958 where a single judge of the Victorian Supreme Court provided a judgment which has since come to represent the law of Australia on the question of fitness to be tried. The case is R v Presser [1958] VR 45 and the critical passage is at p. 48: "[I]s whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He 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." 1. That statement of principle and the criteria there articulated were approved by the High Court in a case called Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41. In that case, the High Court also observed that the duration of the trial and an accused person's capacity to maintain focus during the length of such a trial was an important, or another, consideration. 2. To summarise the criteria that have to be considered in determining the question of whether a person is fit to stand trial and applying some of those to the evidence in the present case: 1. The person has to understand what they are charged with: It seems from the evidence before me, including the reports of the doctors and the most recent evidence, which I will come to in a moment, that Mr Graf is aware that he is charged with the murder of his father; 2. The person has to be able to plead to the charge: It seems that throughout his ordeal in custody, Mr Graf has expressed to various psychiatrists in various ways that he wanted to rely on his mental health issues in defending the charge and has indicated he wished to plead "not guilty by reason of mental illness". There is at least a relatively consistent theme through the reports that he understands that option. However, at least from time to time, there has been a real doubt as to whether he understands the other options available to him, namely (i) to plead guilty to murder, (ii) to offer to plead guilty to an alternative charge of manslaughter based on substantial impairment, a defence which on the evidence before me may well be available to him, and, (iii) of course, to challenge the whole case and to enter a plea of not guilty and put the prosecution to proof. 3. An ability to exercise the right to challenge jurors: A consistent theme of the reports is that Mr Graf has a very limited understanding of what a jury is or does, let alone understands that he has a right to and an ability to exercise challenges at the beginning of the trial. I have to say, that particular criterion may have had more currency in 1958 than it does in 2019, when, in my experience, over too many decades to say politely, counsel almost always exercises the right to challenge, although that is not always the case. 4. An ability to understand generally the nature of the proceedings, and that is that it is an inquiry as to whether he did what he is charged with: I doubt that Mr Graf understood that in April and August of this year. It seems he did understand it in November of this year. I will come back to whether he understands it now. 5. An accused person has to be able to follow the course of the proceedings so as to understand what is going on in Court, although they need not understand the purpose of all of the court formalities. Again, I will return to consider that question in a moment. They have to be able to understand the substantial effect of any evidence that may be given against them. 6. Finally, the accused person has to be able to make their defence or answer to the charge. 1. According to both Dr Dayalan and Dr Skinner, it is in those last three regards that Mr Graf's ability or capacity has changed over time. The case was listed for a fitness hearing at a time when the two experts agreed with each other that Mr Graf was fit to stand trial. But on 29 November 2019 his treating psychiatrist, Dr Reading, wrote to the legal representatives of Mr Graf and indicated that his condition had deteriorated in a marked way and raised serious doubts as to whether he was fit to stand trial. In fact, he expressed the opinion on balance that he is currently unfit. The email went on to indicate the difficulties that might surround Mr Graf being brought to Court. 2. As a result of that email the parties acted promptly – and I should indicate that the Court is extremely grateful to both parties for the way they have dealt with this expeditiously – and on Friday of last week Dr Dayalan again interviewed or consulted with Mr Graf. This morning Dr Skinner went to Silverwater, where Mr Graf is currently incarcerated, and held a 55 minute interview with him, and the parties arranged for Dr Reading, the treating psychiatrist, to be available to give some more expansive explanation of his opinion that Mr Graf is currently unfit. 3. And so this morning pursuant to the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5 through 16, we have held what has been a relatively brief inquiry into Mr Graf's fitness to be tried. I will not repeat what I said about the nature of these proceedings. It is set out in a case called R v Billy Krey [2019] NSWSC 762. All I will say is that the proceedings are non-adversarial, and so they have been conducted, and that there is no onus on either party. The question of fitness is to be determined on the balance of probabilities. 4. The evidence this morning has all gone really one way. Three well qualified psychiatrists, two of whom often give evidence in cases like this and one of whom has been Mr Graf's treating psychiatrist at the gaol or mental health unit, have all provided an opinion that Mr Graf is unfit to be tried. 5. Dr Reading, who is, I suppose, closest to the action, explained that because of the improvement to that point in Mr Graf's condition, his status was about to change and he was to be moved to a different facility. Dr Reading expressed the opinion that the stress and anxiety of that change caused the underlying illness of schizophrenia to manifest itself again in what were quite extreme symptoms, including delusional thoughts, and what I will describe, although the doctor did not describe it this way, as paranoid thoughts. Dr Reading explained that following that stressful incident, Mr Graf's condition deteriorated to the point where he formed the view that it was necessary to write to his lawyers to explain that he really doubted that Mr Graf was fit to come to Court, let alone to stand trial. 6. All three psychiatrists gave evidence today. 7. Dr Skinner described the fact that in her interview with him this morning Mr Graf was unable to concentrate and focus on the evidence, that he was distracted by external stimulus, that he no longer seemed to have an understanding (as he had previously) of what a jury was, that it was doubtful that he understood the function of the Judge, that he had displayed what she believed were probably delusional beliefs and that in her opinion he would encounter serious difficulties in following the evidence and in following the proceedings. 8. Dr Reading explained the background to his intervention as I have already set it out. He described it as a significant deterioration. While Mr Graf understood and seemed to want to rely on his illness to justify a plea of not guilty by mental illness, there was a question as to whether he understood the alternatives to that and pleading guilty or not guilty. The question of the alternative of manslaughter was not explored. Dr Reading seriously doubted Mr Graf's ability to raise a defence. Again, the doctor spoke of Mr Graf's distractibility, his inability to focus on the evidence and his difficulty in following court proceedings. He referred to the fact that Mr Graf was trialled on a drug called Clozapine but that this caused the heart condition called myocarditis, but in retrospect it is thought that those two things may not have been related to each other. The intention is to trial him on Clozapine again. Clozapine is drug, according to the expert testimony, that has had some success in resolving the symptoms of people who suffer, as I find Mr Graf suffers, from treatment resistant schizophrenia. He described the "acute relapse" that occurred when Mr Graf was put on the precipice of being moved within the jail system. He described Mr Graf as of this recent weekend of having limited insight, that he was most distractible. 9. Finally, we heard from Dr Dayalan. His evidence was consistent with that of both Dr Skinner and Dr Reading. Last Friday he described Mr Graf as being extremely distractible, distracted again by external stimuli. He said he could identify the charge, expressed the desire to plead not guilty by reason of mental illness and probably understood some of the options available. He exhibited some understanding of the role of the Judge and the Prosecutor but struggled to explain what a jury might be for. He said at one stage that he "can't fight against the testimony of the jury", which seems to portray an almost complete lack of understanding of the role that a jury would have in any trial if there was a jury. The doctor described Mr Graf as being "extremely unwell" and said he would have significant difficulty in following the court proceedings, and, as I understood his evidence, have almost no capacity properly to instruct his lawyer in the dynamic situation of a criminal trial. 10. This trial has an estimate of two weeks, which may be somewhat optimistic, but in any event it is likely to last two or so weeks and on the evidence before me that is a significant factor given Mr Graf's current inability to remain focussed for the length of time that each of the doctors spoke to him. 11. Based on all of the evidence, I am satisfied that Mr Graf understands that he is charged with the murder of his father. I doubt that he has a capacity to plead to the charge, in spite of his indicating on more than one occasion that he wants to plead guilty by mental illness. I doubt that he has a capacity to exercise any right to challenge jurors, although as I have said in this judgment I am not sure that that is a matter that would make him unfit to be tried, given the role of counsel and their capacity to make such challenges. Mr Graf has not, as of the last few days, demonstrated any real understanding of the nature of the proceedings and that it is an inquiry as to whether he did that with which he is charged. Rather, at least at one stage, he indicated that it was an inquiry into whether he is a good or a bad person. Obviously, that is not what it is at all. He has also, at least in the last few days, demonstrated no capacity to follow the course of proceedings so as to understand what is going on in a general sense in the courtroom. 12. Whilst it has not been addressed with any degree of specificity, I doubt that he has an ability to understand at this moment the substantial effect of evidence that may be given against him. And I am quite sure that his capacity to make his defence, to answer the charge, and to instruct his legal representatives is severely compromised at this moment. It may be that that will resolve over time with the use of the drug Clozapine, but that is matter for the future. 13. At this stage, almost all of the criteria spoken of by Smith J in Presser point towards a finding that he is unfit to stand trial. I make the following orders: 1. The accused is unfit to be tried. 2. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the 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 the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or until he is released to bail or otherwise in accordance with the law. 4. I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days: 1. A copy of my findings and this judgment. 2. A copy of the orders which I have made. 3. A copy of the transcript of the proceedings. 4. A copy of the exhibits in the proceedings. 1. I direct that Corrective Services do not remove Mr Graf from the AVL facilities until he is spoken to by his lawyers. ********** 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: 10 December 2019