R v Williams [2025] NSWSC 85

Supreme Court New South Wales

Medium Neutral Citation: R v Williams [2025] NSWSC 85 Hearing dates: 20 February 2025 Date of orders: 20 February 2025 Decision date: 20 February 2025 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: (1) Pursuant to s 49(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) the accused, Wayne Williams, is referred to the Mental Health Review Tribunal. (2) Pursuant to s 47(2)(d) of the Act the accused is remanded in custody. (3) The reports of Dr Ellis and Dr Martin are to be forwarded to the Mental Health Review Tribunal and to Justice Health. Catchwords: CRIMINAL LAW – murder – fitness inquiry – fitness to be tried – orders made under s 49(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) – referral to Mental Health Review Tribunal Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Category: Principal judgment Parties: Rex Wayne Williams Representation: Counsel: S Traynor (Crown) M Davies (Accused) Solicitors: Solicitor for Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused) File Number(s): 2023/204105 Publication restriction: No

JUDGMENT 1. HIS HONOUR: The accused, Wayne Williams, is charged with the murder of his cousin, Dwayne Williams, at Lavington on 13 July 2023. It is alleged that the accused stabbed the deceased in the neck in the early hours of 26 June 2023, when both of them were staying temporarily at a house in Albury. The deceased sustained very severe wounds, of which he died after 18 days in hospital. The date and place of the murder as charged are the date and place of Mr Dwayne Williams' ultimate demise. 2. The accused has been in custody since 26 June 2023, now one year and eight months. He was committed to this Court on 22 October 2024 and was first before the Criminal List Judge on 11 December 2024. He was not arraigned at that time because a question as to the accused's fitness to stand trial had been raised by the defence, pursuant to s 42 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The Court determined that an inquiry should be conducted to ascertain whether the accused is fit to be tried. That inquiry has been undertaken today on the basis of documentary evidence jointly tendered by the Crown and the defence. 3. The following provisions of the Act govern the inquiry and stipulate the orders that the Court may make (extracted so far as relevant): 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— […] (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by— (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. 36 Fitness test (1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following— (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. (2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence. 44 Inquiry Procedures (1) The question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone. (2) At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows. (3) An inquiry is not to be conducted in an adversarial manner. (4) The onus of proof of the question of a defendant's unfitness to be tried for an offence does not rest on any particular party to the proceedings. (5) In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following— (a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, (b) the likely length and complexity of the trial, (c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner. (6) A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied. 47 Finding after inquiry that defendant is unfit to be tried (1) If a defendant is found unfit to be tried for an offence following an inquiry, the court must also determine whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness, the defendant— (a) may become fit to be tried for the offence, or (b) will not become fit to be tried for the offence. (2) The court may do one or more of the following after a finding that a defendant is unfit to be tried for an offence— […] (d) make an order remanding the defendant in custody, (e) make other orders that the court thinks appropriate. 49 Tribunal review and court orders after finding that defendant may be fit to be tried within 12 months (1) The court must refer the defendant to the Tribunal for review if the court determines that the defendant is unfit to be tried for an offence and may become fit to be tried for the offence during the period of 12 months after the finding. 1. The evidence tendered on the inquiry comprises psychiatric reports of Dr Andrew Ellis, engaged by the defence, dated 5 June 2024 and 17 February 2025; psychiatric reports of Dr Adam Martin, engaged by the Crown, dated 16 September 2024 and 18 February 2025; an affidavit of the accused's former solicitor, Ms Jessica Munro, affirmed 10 February 2025; a selection of Justice Health records and the accused's criminal record, in the form of a Bail Report, and custodial records. Each of the psychiatric experts has also provided brief supplementary information by emails, both sent on 18 February 2025.