New South Wales District Court CITATION: R v David Allan Williams [2006] NSWDC 203 HEARING DATE(S): 14-18 August 2006 JUDGMENT DATE: 22 December 2006 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Finding of unfit to be tried.; Accused referred to MHRT. CATCHWORDS: Criminal Law - Fitness Hearing - Presser test applied R v Presser [1958] VR 45 at 48 CASES CITED: R v Mailes (2001) 53 NSWLR 251 R v Dennison [1988] unreported, NSWCCA 3 March 1988 PARTIES: Regina David Allan Williams FILE NUMBER(S): 06/11/0240 COUNSEL: M. Ainsworth - accused SOLICITORS: Mr Turner - Crown JUDGMENT 1 HIS HONOUR: On 14 August 2006 David Williams pleaded not guilty to ten counts of sexual assault, three of those counts were expressed to be in the alternative. A pre-trial voir dire hearing was held on matters not relevant to the present matter. 2 On the crown case the offences occurred at the accused' apartment on a morning of 25 August 2005. The complainant was, at the relevant time, the estranged wife of the accused. The case included allegations of physical violence, actual bodily harm and self manipulation of soft drink bottles into the vagina of the complainant. It must be recognised that the subject matter and the particular nature of the allegations would make such a hearing before a jury a stressful event not only for the complainant but for the accused as well. 3 On the second day of the trial counsel for the accused found himself in a situation where he felt compelled to seek leave to withdraw. Among other things he was concerned that symptoms of the accused' unfitness to be tried were being demonstrated in respect of the accused' capacity to instruct his legal team. The jury was discharged, a fitness hearing was scheduled. Ultimately that fitness hearing was conducted on 13 December last. 4 Although entitled to have the matter heard by a jury I am satisfied the accused was capable of making an election to have the question of his fitness determined by a judge alone, see the report of Dr Allnutt (Exhibit A), and the affidavit of Michael Croak (Exhibit 6). He made such an election (Exhibit 1). 5 The accused was represented by Mr Ainsworth of counsel, a member of the New South Wales Bar. The enquiry was conducted in a non-adversarial manner while both parties recognised as a matter of law that neither carried the onus of proving unfitness, the defence sought the ruling. As events transpired forensic experts called by each side gave evidence in support of a finding of unfitness. The Court's task is to determine whether the accused is unfit to be tried. 6 The reason the Court is concerned as to whether an accused is unfit to be tried is because each person coming to be tried on a criminal matter must measure up to certain minimum standards of mental understanding and mental health. To try in a criminal trial an accused who did not reach those minimum standards would result in an intolerable unfairness or injustice to him. As I consider whether the evidence establishes that David Williams is unfit there are a number of matters I am required to assess. 7 The starting point for my enquiry is a presumption that the accused is not unfit to be tried therefore his unfitness is a matter that will need to be proved on the balance of probabilities. I also begin by presuming qualified and competent lawyers will legally represent the accused at any trial. The minimum standards I am concerned with are not those needed for an accused to represent himself at the trial. 8 An accused will be unfit to be tried where, because of a mental defect, he fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to himself, see R v Presser [1958] VR 45 at 48. The question of an accused' unfitness to be tried is not limited to unfitness by reason of mental illness or mental disorder and is not to the exclusion of developmental or intellectual disability, R v Mailes (2001) 53 NSWLR 251.The question of unfitness is not determined on the mental state at the time of the alleged offence. His state at that time would not necessarily govern his fitness to be tried at the time of trial. The critical question is to be resolved upon evidence of his state at the time of the trial, R v Dennison (1988) NSWCCA 3 March 1988. 9 An accused should be able to understand the nature and alleged circumstances of the charges brought against him, so as to formulate his plea to them. That will depend upon his capacity to understand the nature of the charges. Where there is an inability to understand the nature of the charges, or to remember the circumstances in which the alleged offences are said to have occurred, before a person so afflicted can be found unfit to be tried that inability must be caused by an incapacity arising from a mental defect. 10 An inability to remember the circumstances in which an alleged offence is placed because the accused was drunk or under the influence of a drug, for example, would not impact upon that person's possible unfitness. On the other hand an inability to remember because of a mental condition particularly one affecting his mental faculties would be a relevant consideration. 11 An accused should have capacity to determine whether it is in his forensic interest to be tried by a judge sitting alone, assuming the crown should so consent or by a jury. An accused should be capable of sensibly exercising his right to challenge a jury panel member from joining the jury. Challenging a potential juror requires firstly an understanding that each juror participates with others in determining whether the crown has brought sufficient evidence to prove the charges beyond reasonable doubt. 12 All this requires that an accused, at least intuitively, base his challenge upon the notion that he will leave on the jury persons he feels are likely to regard his case more favourably and strike off those potential jurors he feels are likely to regard his case less sympathetically. That is to say his choice of jurors should at some level be related to his hoped for outcome of the case and not upon some matter unrelated to the outcome of the trial. Challenging a potential juror requires a capacity to form a view that there may well be something about the appearance or presence of a potential juror to allow an accused to form a view that he would prefer the jury deliberations be made by others not including the challenged jury panel member. Even though the making of challenges can be delegated to counsel it is important that an accused be able to exercise the challenge personally so that in the event he felt the need to do so he could withdraw the delegation or indicate he did not agree with the proposed challenge or non challenge prior to the opportunity to challenge passing. 13 An accused should be able to follow the course of proceedings so as to understand what is going on. That is, he will need to understand at some level the proceedings are a formal enquiry conducted usually before a presiding judge and a jury. If there is no jury he will need to understand the judge is the tribunal of both law and fact. He will need to understand the prosecutor is tasked with presenting evidence in support of the crown allegations, that defence counsel is tasked with answering those allegations as best they can be answered. He will understand the tribunal of fact, however constituted, is tasked with determining whether the prosecution has proved from the evidence in the trial the allegations made in the charges. 14 In following the course of the proceedings he should be able to follow the evidence. An accused must have at least a rudimentary understanding of the reception of evidence adverse to him, whether orally or by exhibits and the effect of cross-examination. An accused must be capable of giving instructions to his legal representatives, both prior to and during the trial so that his lawyers can properly defend him in the proceedings. He must be able to decide what defence he will rely upon. He must be able to make out that defence, not in the sense of persuading a jury to accept it, but in the sense of articulating it so that his counsel and the court can understand it. 15 He must be capable of articulating his defence so that he has a meaningful option to enter the witness box should he choose. Put simply he must be able to make his version of the facts known to both his counsel and the court. This may require some assessment of his capacity to give evidence in chief and to submit to cross-examination. Finally an accused must be able to sustain his participation in the trial for it's duration. A person will be unfit where one or more of these matters is outside the capacity of the person because of some mental defect. 16 In assessing Mr Williams' fitness to be tried a useful starting point is the conclusion of the aborted trial in August this year. Dr Allnutt reports a history from the accused: "Review of the hearing of 17 August 2006 reveals that there were concerns about [the accused's] ability to concentrate and his use of methylamphetamine. His lawyer noted that under pressure he would become verbose and then have a change of thought process. His family called it "five or ten second delay effect". He [had] some good days and bad days. A few weeks prior he seemed to his solicitor to be okay but in the days leading up to 17 August 2006 he became more difficult. In addressing the jury the judge stated that he was satisfied that the health issue of one of the participants in the trial was real and genuine and that the concern was his "capacity to concentrate and give instructions." Some of the pressure and anxiety came from paranoid thoughts "since then he felt frightened to go out". He stated that "I'm afraid that if I am seen again I'll get bashed." He had felt like this more since the time he had been in hospital. He said he was admitted to Randwick Hospital on 18 August. He believed it was the Prince of Wales psychiatric ward where he remained for approximately three weeks. He said that at the time he was feeling "very paranoid about my arrest." At the time he believed he was going to be arrested. Before he said he had been arrested on several occasions before for breach of bail. At the time of his admission [immediately after the trial] he felt police [were] watching him. He could not embellish on this any further." Dr Allnutt, page 3. 17 Dr Tran also noted: "Mr Williams said that he went to trial on 14 August and the trial was stopped after four days "because of my behaviour". Mr Williams said that he became "very paranoid" believing that he was going to be arrested outside the courtroom. He was also under the belief that his court case "was going to make the news because of the extent of it". 18 Immediately after the jury was discharged it appears David Williams was first admitted to Kiloh Centre, Prince of Wales. Doctor Lee reports: "Mr Williams had two admissions to our inpatient unit this year. The first admission occurred between 17 August and 11 September 2006. At that time he was found to be anxious and paranoid. The provisional diagnosis was psychotic episode. The second admission occurred between 23 October and 12 December 2006. This time his symptoms were characterised by depressed mood and severe anxiety. The diagnosis was a major depression. His treatment includes psychotropic medications and psychological treatment. Since my contact with Mr Williams he has been cooperative in accepting treatment." 19 Dr Lee notes that some of the stresses that had impacted upon the accused's condition included: "...his marriage, business, police arrests and incarceration. In particular the prolonged loss of contact with his son due to AVO restrictions was experienced as traumatic and contributed significantly to his psychopathology. His recovery is further impeded by restrictions of his bail conditions which involved constant supervision by his mother and daily reports to the police. We believe that his prognosis is strongly related to these factors. We would support any endeavours aimed at reducing these legal restrictions." 20 Dr Lee's report is short. Although addressed to the court it does not appear to canvas issues relevant to fitness per se, nor does it include any history of significant poly-drug abuse. It is useful for documenting very recent medical health concerns. 21 Dr Allnutt's opinion as to the state of the accused's fitness for the first trial is: "In the weeks leading up to the trial on 17 August he began to manifest paranoid ideation which in my view was of a severity that he probably manifested persecutory delusions, ideas of reference and visual hallucinations on the background of an already present depression to the extent that he required admission to a psychiatric hospital. It is probable that the stress of the upcoming trial triggered an acute deterioration in his mental state in the context of any already present depressive syndrome of symptoms characterised by thought blocking or psychomotor retardation (difficulty in formulating thought, slowness of thoughts or absence of thought production). This acute decline in his mental state exacerbated difficulties between himself and his solicitor contributing to difficulty in obtaining instructions on the part of his solicitor." 22 The accused's current condition is assessed by Dr Tran retained by the defence who saw the accused on 8 December 2006: "Mr Williams presented as a casually dressed and medium built male of stated age. He appeared guarded but was otherwise fully cooperative. He maintained a fair degree of eye contact, he appeared somewhat detached and it was difficult to establish rapport. There was no evidence of psychomotor retardation or agitation. There was marked hesitancy of response (this would suggest impaired concentration and/or disorganised though processing)... He was oriented to time and place. He was able to attend the interview but appeared to have difficulty concentrating and focussing. No formal cognitive testing was undertaken. He displayed lack of insight in that he did not want to be readmitted even though he was clearly unwell. His judgment and reality testing appeared significantly impaired. He is currently exhibiting psychotic symptoms characterised by persecutory beliefs, disorganised affect and impaired thought processing. His psychotic symptoms appear more prominent than his depressive symptoms. Given the fact that his psychotic symptoms have been persisting, a substance related condition would be unlikely." 23 Dr Allnutt saw the accused on 19 October 2006 and again before court on 13 December. Dr Allnutt noted stresors additional to those catalogued by Dr Lee. These related to the death of the accused's father in November of 2005 and an alleged assault upon him by six aborigines said to be cousins of the complainant. I do not rule out that the claimed relationship of the six aborigines maybe a paranoid ideation. 24 He complains of poor quantities and quality of sleep. There are nightmares. He complains of reduced motivation, becoming easily confused, unable to follow the thread of a story and poor concentration. He experiences anxiety that on occasions appears powerful enough to incapacitate him. For example his mother reports that he froze in the car unable to alight from it on one occasion. Dr Allnutt reports a pause for an extended period because of anxiety and the need for Dr Allnutt to change the subject. 25 Dr Allnutt reports: "Since leaving the hospital he tended to give only one word answers (according to his mother). He was more socially withdrawn, he wanted other people to make decisions for him, he didn't want to talk to his lawyer. She said that it appeared that he didn't want to have input with his lawyer. Before the admission [to hospital] it appeared as if he knew what he was doing but since the admission he appeared to be very hesitant about making decisions including decisions about his legal circumstances. [The mother] acknowledged that the accused continued to take his medication and said that his psychiatrist had diagnosed depression relating to not seeing his son. 26 Dr Allnutt's mental state examination is reported as: "The defendant presented as quiet and cooperative. He was well-groomed. His speech was clear and coherent. He was clearly anxious during the interview. His response to questions were frequently delayed. On occasions it appeared that he had lost the thread of his thought, almost as though his thoughts were blocked. He endorsed a depressed mood with neurovegatative symptoms of depression and also some mania in the form of racing thoughts manifesting a mixed presentation. He denied suicidal or homicidal ideation, plan or intent. He gave a prior history of paranoid ideation and in my view continued with a degree of paranoid thinking. On cognitive testing he was reasonably adequate. His capacity for judgment and insight was limited." 27 On 13 December Dr Allnutt reviewing Mr Williams made the comments I earlier referred to of his ongoing problems. Presser test assessments 28 Dr Tran says: "As regards his charges Mr Williams said that he had been charged with "sexual assault" upon his ex-wife. He confirmed that he had pleaded [not] guilty and as a result had gone to trial before a jury. He thought there were fourteen jurors. He was aware the jury's role was "to determine if I was guilty or not guilty" but was not sure as to the function of the judge. He said that there were two prosecutors who acted for his ex-wife and the police. When asked about his defence he said, "just my words". The reference to the two prosecutors should be understood to be counsel and the instructing solicitor." 29 Dr Allnutt said: "He understood that he had been charged with sexual assault which he described as rape. He understood that the police had alleged that he had raped his wife. He understood these to be serious charges. Not guilty he understood to mean you did not do that and the consequences of such a finding, release. He understood guilty to mean "that you have done that" and that the consequence of a finding of guilty to be potentially prison. He understood that his lawyer's role was "to represent myself", the prosecution "to represent the victim", the judge to determine who is guilty or not guilty, the jury "they make the decision, members of the public". He did not spontaneously know what his right of challenge was but he was able to provide an adequate understanding once I explained to him. He understood an oath to mean "when you swear on the Bible and told the truth". He understood the consequence of failing to do so to be that he would be in trouble. He understood that the purpose of the proceedings was to "determine what's wrong with me, to find out what happened". I asked him what the hearing would decide on. He said "to find out if I am guilty or not guilty". I asked him [whether or not] he had looked at his evidence. He said he had noted that there was some evidence against him and identified photographs that had been taken. He acknowledged that this evidence was relevant because his wife was saying that he had taken them against her will. He also said that there was evidence of a laptop computer with photographs. He was unsure why that was important. I asked him whether or not he had decided on a plea and he said "not guilty". I asked him what plea he had decided at which point he paused for an extended period of time. When I asked him what he was struggling with at that question he said, "I'm freezing, I've got anxiety". He was unable to provide me with his choice of plea. It must be stated here that throughout the interview to this point the defendant's responses were delayed. He was slowed in his speech and tended to thing for periods of time, in excess of that which would be expected, frequently throughout the interview period. 30 Dr Allnutt described his mental condition in these terms: "Diagnosis is somewhat difficult in this case. While I believe his primary condition is a mood disorder such as a depressive disorder or bipolar affective disorder which psychotic features differential diagnosis would indicate depression with a drug induced psychosis, schizo affective disorder, mixed mood disorder with psychosis. 31 Other Presser issues raised by the doctor include these: "In my opinion the defendant manifests a mental illness of a nature and severity that could impact upon Presser criteria. The defendant maintains capacity to understand the nature of what he is charged with. He understood that the police had alleged that he had raped his wife. He has capacity to understand the general nature of the proceedings which is that it is an enquiry into whether he did what he is charged with. He knew the proceedings were to determine what is wrong with me, to find out what happened. I believe he has capacity to elect a trial by judge or by jury. His capacity to plead to the charge at this stage is compromised. He appears to be ambivalent in his choice of plea. Likely as a consequence of cognitive difficulties derived from his depressive symptoms. He is compromised in his capacity to follow the course of the proceedings. He has difficulty with his thought processes manifesting either a psychomotor retardation through blocking or poverty of thought. These kind of symptoms impairs a persons ability to think properly about things. He is impaired in his capacity to communicate adequately with counsel and to instruct counsel for the purposes for making a defence for similar reasons and he would therefore be limited in his capacity to think through his legal circumstances and to provide his counsel with coherent instructions. While he understands his right of challenge he is extremely anxious and thus might be compromised in his capacity to exercise his right of challenge. Overall I believe that the defendant should be regarded as unfit to stand trial. Given that his mental condition is of a nature that will respond to medication, that he is currently receiving medication and under psychiatric care, the court should regard his prognosis as fairly good and that he would recover within twelve months. 32 I am not satisfied any ambivalence in the accused's approach to his plea has it's cause in any mental condition he may be experiencing. It is not unusual for those accused of crime to be ambivalent about the plea each may enter. There may be various reasons for that related to matters other than their mental health condition. 33 Nor am I satisfied the accused's right to challenge is impaired as a consequence of any mental condition he may be experiencing. True his knowledge or memory maybe impaired but I have not been satisfied on the balance of probabilities that such impairment as he has in this area is related to his mental condition. 34 On the other hand, I am concerned that his paranoid ideation has incorporated matters related to the former trial and investigation process, that became manifest in a paranoid ideation of a heightened interest by police in him and an increased potential for his arrest during the course of the trial and related to what was apparently happening in the trial. As I remarked earlier I have not excluded the claim for the six alleged attackers as cousins of the accused to also be a paranoid ideation. 35 I accept that his anxiety and drug induced psychosis and perhaps other mental conditions have compromised his capacity to follow the proceedings, to communicate with his legal advisors and to make a defence that would make clear his version of the events." 36 Putting to one side capacity to plead and capacity to challenge I am prepared to accept Dr Allnutt's assessment. I regard Dr Lee as supporting Dr Allnutt's opinion. I am satisfied David Williams is not fit to be tried. I refer him to the Mental Health Review Tribunal. I do intend to vary his bail conditions. I note that the accused is not here. 37 The variation in the bail conditions will be the present conditions, coupled with that, he will not take any drugs other than prescribed drugs during the bail period; and that he is to submit to random urine analysis at the discretion of Probation and Parole. That will require him to submit to their supervision for that purpose only. There will also need to be some clarification of his residence. I intend to order copies of this judgment and the reports of Dr Lee, Tran and Allnut to be forwarded to the Mental Health Tribunal. The trial of the accused is to be stood over pending the outcome of the Mental Health Review Tribunal's review. ******** 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.