IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 009 of 2001

STATE

v.

SEMESA ROKO

Hearing: 13 February 2012
Ruling: 14 February 2012

Counsel: Mr. L. Fotofili for State
 Ms M. Savou for Accused

RULING

[1] This is an application for an inquiry to determine the accused, Semesa Roko's fitness to stand trial on the ground of unsound mind. The application is made pursuant to section 104 of the Criminal Procedure Decree. That section states:

(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 accused 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 purpose 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 accused person is of unsound mind so that he or she is uncapable of making 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 accused person and of the public.

[2] Mental health is now governed by the Mental Health Decree 2010. The Decree provides for management orders for persons suffering from mental illness. Mental illness is defined by section 2 as a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterised by the presence in the person of any of the following symptoms –

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

(e) severe motivational deficit;

(f) sustained or repeated irrational behaviour indicating the presence of the symptoms referred to above.

[3] Before the commencement of trial, the court received sworn evidence from Dr. Shisram Narayan. Dr. Narayan is a qualified psychiatrist based at St. Giles Hospital. The evidence of Dr. Narayan was not disputed by the State.

[4] It is not in dispute that the accused suffers from mental illness. He has been a patient at St Giles Hospital since September 2001. The initial diagnosis was that the accused was suicidal and hallucinating. He was placed under medication and he continued to regularly visit the hospital.

[5] In June 2011, the accused was clinically diagonised to be suffering from schizophrenia, namely paranoid hallucinations. Since that diagnosis the accused was placed on mild sedative medication to block out the hallicinuations. Dr. Narayan said that although hallucinations do not affect the patient's thought process, the condition can affect his memory. Dr. Narayan said that if the accused is administered proper medication, he can understand the proceedings. Meanwhile, the accused remained a patient at St. Giles Hospital.

[6] In a recent report dated 30 January 2012 on the accused, Dr. Narayan stated –

"The accused was admited to St. Giles Hospital on 21/06/11. He was given treatment in the hospital and he had become mentally stable. He was discharged from the hospital four months later on 31/10/11. The accused relapsed while he was in prison so he had to be admitted again. On admission he was uncooperative. He was demanding and talking out loud. He was very much preoccupied with his own thoughts. His speech was irrelevant and he had auditory hallucinations. He was continued with medication and he responded well to the treatment. At present he is calm and cooperative. He is socializing well with other patients. His sleep and appetite is good. His speech is relevant. He still hears voices but is not bothered by the voice. He was asking to see his lawyer before his next court appearance".

[7] The trial commenced on 7 February 2012 without prejudice to the accused to re-instate his application for fitness to stand trial at any time during trial.

[8] After the prosecution had led evidence from three civilian witnesses, the accused re-instated his application for fitness to stand trial. Ms Savou informed the court that based on her interaction with the accused during the trial, she is not sure that the accused is following the proceedings. To make the point, she called the accused to stand. The accused was asked questions about the proceedings. Apart from his name, the accused gave all irrational answers to the questions. He told the court that he is attending a meeting and he thinks the judge is a preacher and he must listen to the preacher. Based on these circumstances, Ms Savou submits that she is handicapped in presenting a defence to the charges, which Ms Savou says are very serious. 

[9] The charges of murder and attempted murder against the accused are indeed serious. However, the seriousness of the charges cannot in any way diminish the accused's right to a fair trial. The right to a fair trial incorporates the right to understand the proceedings and to put up a defence, regardless of the seriousness of the charges. In that regard, section 104 of the Criminal Procedure Decree and the application of the Mental Health Decree to criminal proceedings is clear. If an accused is incapable of making a proper defence due to mental illness, the court must make appropriate orders to protect the interests of the accused and of the public. What could be more unfair than to try the accused suffering from paranoid hallucinations and does not understand the proceedings due to his mental illness? There is a real risk that the trial will miscarry if continued. 

[10] Based on the evidence of Dr. Narayan and the court's own assessment of the accused during the trial, I am satisfied that the accused is mentally unfit to stand trial. 

[11] I order the trial shall not proceed any further. 

Daniel Goundar
JUDGE

At Suva
14 February 2012

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused