State v Dakai [2019] FJHC 786; HAM204.2019 (2 August 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO. HAM 204 OF 2019

BETWEEN THE STATE

APPLICANT

AND FABIANO DAKAI

RESPONDENT

Counsel: Ms. S. Semisi for State

Ms. N. Mishra for Respondent

Date of Hearing: 31 July 2019

Date of Ruling: 2 August 2019

RULING

1. The Respondent is alleged to have committed a Murder, on the 4^th February 2019.
   
2. By an order of this Court, the Respondent had undergone four psychiatric evaluations at St. Giles Hospital and Suva Remand Centre between 15^th March 2019 and 24^th April 2019. The Respondent was referred for a psychiatric evaluation to determine whether he is fit to plead, stand trial and was sound of mind at the time of the alleged murder. Upon reports being filed as ordered, an inquiry was conducted pursuant to Section 104 of the Criminal Procedure Act and Sections 23 and 27 of the Mental Health Act.
   
3. The Section 104 of the Criminal Procedure Act states as follows:

104 (1) When, in the course of a trial at any time after a formal charge has been presented or drawn up, the court has reason to believe that the Respondent person may be of unsound mind so as to be incapable of making a proper defence, it shall inquire into the fact of such unsoundness and may adjourn the case under the provisions of section 223 for the purposes of —

(a) obtaining a medical report; and

(b) such other enquiries as it deems to be necessary.

(2) If the court is of opinion that the Respondent person is of unsound mind so that he or she is incapable of making a proper defence, it shall postpone further proceedings in the case and shall —

(a) act in accordance with any law dealing with mental health; or

(b) in the absence of any appropriate provision of such a law, make

any order or orders that the court considers appropriate to protect the interests of the Respondent person and of the public.

(3) If the case is one in which bail may be taken, the court may release the Respondent person on sufficient security being given that he or she will be properly taken care of and prevented from doing self-injury or injury to any other person, and for his or her appearance before the court or such officer as the court appoints in that behalf.

(4) The Court may order that the Respondent person may be confined in a mental hospital or other suitable place of custody and the court shall issue a warrant in accordance with such order.

(5) Any order of the court under sub-section (4) shall be sufficient authority for the detention of such Respondent person until —

(a) the court shall make a further order in the matter; or

(b) the court finding him incapable of making a proper defence shall order the Respondent person to be brought before it again in the manner provided by sections 106 and 107.

4. Having assessed the Respondent psychiatrically as ordered, the Medical Superintendent at St Giles Hospital Dr. Anne Bastholm had sent a comprehensive medical report to this court. By the time the inquiry was taken up for hearing, Dr. Bastholm had left the country and was not available to give evidence in support of the report.
   
5. At the inquiry, the Psychiatric Assessment Report of Dr. Anne Bastholm was not contested by the Counsel for Respondent and Respondent’s mother who deposed an affidavit. Accordingly, the Psychiatric Assessment Report of Dr. Anne Bastholm was admitted into evidence under Section 134 (3) of the Criminal Procedure Act by consent.
   
6. The purpose of the psychiatric evaluation of Dr. Bastholm was to assess the current state of mind of the Respondent as well as his fitness to stand trial and plead in court.
   
7. According to the report, the Respondent is aware that he had been (charged) for Murder and of the legal proceedings against him. However, he does not have the mental capacity to brief and instruct his lawyer of his defence strategy should one be provided. The Respondent does not have a basic understanding of the purpose of legal proceedings and basic legal terms. At present, the Respondent is most likely not able to take the witness stand and undergo examination and cross- examination.
   
8. According to Medico–Legal Assessment, the Respondent reports of marked symptoms of mental illness and, from history, he is most likely having had these symptoms for years. Although he has been commenced on medical treatment, he has marked symptoms of medical illness at present. His condition can be expected to improve within weeks to few months.
   
9. According to the report the Appellant is not mentally capable of making a plea in court and forming a legal strategy to defend him although he is aware of the charges and the ongoing legal proceedings against him. The Respondent is mentally ill. The Doctor has recommended that the Respondent should be taken to St. Giles Hospital for treatment before he is released.
   
10. Based on the report of Dr. Bastholm, I am of the opinion that the Respondent is of unsound mind so that he is incapable of making a plea and a proper defence at the trial.
    
11. In light of the evidence the Respondent needs to be transferred to St. Giles Hospital immediately because his condition can be expected to improve within weeks to few months.
    
12. The Counsel for Respondent and Respondent’s mother do not dispute the medical findings of Dr. Bastholm and her recommendations. The only dispute is with regards to the application by the State that the Respondent be detained indefinitely until the court is satisfied that the Respondent is fit to stand trial. The law does not provide for indefinite detention but detention until such time that the court is satisfied that the Respondent is fit to stand trial.
    
13. Having perused the report tendered in evidence, I am of the view that the Respondent be confined in a mental hospital to facilitate his medical treatments, prevent self- harm and also to protect the interests of the public.
    
14. Following Orders are made accordingly:
    
    1. I hold that the Respondent is currently of unsound mind so that he is incapable of making a plea and a proper defence at the trial.
       
    2. Proceedings in the substantive matter HAC 83/19 is postponed until the court is satisfied that the Respondent is fit to plead and stand trial.
       
    100. The Respondent is ordered to be confined in St Giles Hospital for a period of 6 months under medical supervision.
         
    4. The Medical Superintendent at St Giles Hospital is ordered to further evaluate the Respondent psychiatrically and send a report to Court returnable on 2^nd January 2020.
       

Aruna Aluthge

Judge

At Suva

2^nd August, 2018

Counsel:- Office of the Director of Public Prosecution for State

Legal Aid Commission for Respondent