In a recent case before the NSW Supreme Court, the Presiding Judge found that the defendant was not fit to stand trial for murder.
The defendant, Daniel Azar, is alleged to have participated in the murder of Bassam Salameh in August 2013. During his initial police interview, Azar denied any involvement and seemed reasonably level-headed.
But in his second interview, Azar gave a version of the events leading up to Salameh’s death that was inconsistent with evidence obtained during a post-mortem examination.
Members of the defendant’s family gave evidence that he had been acting erratically and unpredictably since 2011, believing that his use of the drug ‘ice’ was to blame. They testified that on a day shortly after the murder, Azar accused his mother of being “the devil” and called her “a f***ing bitch”. Later that day, he started crying and saying “they” would kill him if he didn’t give “them” the money. He deteriorated further, talking about devil worshipping and his desire to kill himself.
After being taken into custody in 2014, Azar started pulling out patches of his hair and was highly suspicious of those around him. He reported hallucinations during which he saw dead people walking in his prison cell.
The Supreme Court was called upon to decide whether Mr Azar was mentally fit for a trial listed to commence on the 9th of November 2015.
The law in NSW says that a person can only stand trial if they are “fit to be tried”.
This means that they must be physically and mentally able to understand the court proceedings, and make decisions about their defence.
This is seen as an essential component of the right to a fair trial.
The Victorian case of R v Presser  listed the criteria that need to be met before a person can be considered fit to stand trial.
These “Presser criteria” require that the defendant:
- Understands what they have been charged with;
- Must be able to plead guilty to the charge or exercise his right of challenge (that is, raising a defence);
- Understand generally the nature of proceedings – that is, that he is going to be on trial for a crime he has been charged with;
- Must be able to follow what is happening in Court in a general sense;
- Must be able to understand the substantial effect of evidence given against him;
- Must be able to instruct counsel about his version of the facts and, if necessary, can tell this to the Court;
- Must have sufficient capability to decide what defence he will rely on and make this known to his counsel and the Court.
Mr Azar’s Case
During the Supreme Court proceedings, forensic psychiatrist Dr Allnut gave an opinion that Mr Azar only met several of the “Presser criteria”, concluding that he was unfit to stand trial. Dr Allnutt stated that Azar did not understand the court proceedings and believed that the judge was there to send him to heaven or hell.
His criminal defence lawyer swore an affidavit to the effect that he was unable to obtain meaningful instructions from his client, which made it impossible for to properly prepare a defence.
The Court ultimately found that Mr Azar was indeed unfit to stand trial. The trial date was vacated on that basis and Azar was referred to the Mental Health Tribunal.
The Mental Health Tribunal
Under section 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”), a person who is “unfit to be tried” must be referred to the Mental Health Review Tribunal (“the Tribunal”).
In that event, section 14(1)(b) of the Act empowers the court to:
- adjourn the proceedings;
- grant the defendant bail;
- remand the person in custody until the Tribunal delivers its determination; and
- make any other order that the Court thinks is appropriate.
The Tribunal has the power to make determinations about whether someone should be detained in a mental heath facility under the Mental Health Act 2007 (NSW).
While some might view this as ‘going soft’ on defendants, the reality is that is that being detained in a mental health facility constitutes an extreme deprivation of liberty given that patients can be forced to comply with treatment, and cannot be released without the Tribunal’s authorisation – which can effectively mean a lifetime of institutionalisation.
One of the main aims of punishment is to deter others from committing crimes.
However, as Justice Badgery-Parker of the NSW Criminal Court of Appeal said in R v Letteri (1992):
“There is ample authority for the proposition that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others.”
See also R v Fahda  NSWCCA 267. In Mr Azar’s case, it is hoped that his referral into treatment will assist him to overcome his serious mental health issues over the years and ultimately become a productive member of society.