R v Wilson [2000] NSWSC 1104

New South Wales Supreme Court

CITATION : R v Wilson [2000] NSWSC 1104 FILE NUMBER(S) : SC 70027/00 HEARING DATE(S) : 20/11/00 JUDGMENT DATE : 20 November 2000

PARTIES : Regina Shannon Blake Wilson JUDGMENT OF : Bell J at 1

COUNSEL : B Newport QC - Crown Anthony Cook - Accused SOLICITORS : SE O'Connor - Crown WR Goodman & Associates - Accused LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 CASES CITED : R v Presser (1958) VR 45 at 48 DECISION : Accused unfit to be tried, pursuant to s 14(a) of the Mental Health (Criminal Procedure) Act 1990 accused referred to Mental Health Review Tribunal. Accused remanded in custody until the determination of the Tribunal has been given effect to.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Monday, 20 November, 2000

70027/00 - REGINA v Shannon Blake WILSON

JUDGMENT (re fitness to be tried)

1 HER HONOUR: The accused was arraigned on an indictment which charged him with the murder of Kevin Earl Lester on 15 October 1999 at Nowra. Upon his arraignment he entered a plea of not guilty. Since that time an issue has arisen concerning whether he is unfit to be tried upon that indictment. 2 The accused signed an election pursuant to s 11A of the Mental Health (Criminal Procedure) Act 1990 ("the Act") seeking to have the question of his fitness to be tried determined by judge alone. It is necessary for me to be satisfied that before making that election the accused sought and received advice in relation to the election from a barrister or solicitor. 3 Mr Cook, who appears on behalf of the applicant, relies on the affidavit of David Campbell French, solicitor, sworn on 30 October 2000. That affidavit discloses that prior to making the election Mr French and counsel, Christopher Craigie, conferred with the applicant and conveyed to him Dr Westmore's view that he was not fit to stand trial. Mr French went on to explain that it was necessary to work out whether that issue should be decided by a judge or by a jury of twelve people. He asked the accused whether he knew what a jury was and the accused said, "Yes, but I wouldn't know what to do". The accused was advised that he was entitled to take advice from Mr Craigie and Mr French but that ultimately the matter should be his decision. He was further informed that it was Mr Craigie's advice and that of Mr French that the question of his fitness should be determined by a judge alone. He was asked whether he, the accused, was able to make a decision about this issue and the accused replied that he wished the issue of fitness to be dealt with by judge alone. 4 In the light of that material and having regard to the contents of the psychiatric material which is before me on the inquiry, I am satisfied that the applicant sought and received advice in relation to the election prior to making that determination and that his election was an effective one. Accordingly, the matter proceeded before me pursuant to s 12 of the Act. 5 The Crown tendered a bundle of documents comprising the police facts, a report of Dr Bruce Westmore dated 6 September 2000, a report of Dr Olav Neilssen dated 9 November 2000, a report of Anita Duffy, psychologist, dated 31 July 2000 and a further affidavit of David French sworn on 13 October 2000. That material was tendered by consent. 6 It is to be noted that the Crown and Mr Cook jointly submit that in the light of that material, I would hold that at the present time the accused is unfit to be tried. 7 The test for unfitness is frequently stated in terms of that expressed by the Victorian Court in R v Presser (1958) VR 45 at 48. A number of the criteria by which fitness may be judged were set out in that case. These include that the accused needs to be able to plead to the charge, to exercise his right of challenge and to understand in a general way the proceedings in the sense of understanding that they are an inquiry into whether he committed the offence with which he stands charged. 8 There is no issue but that the accused satisfies a number of the Presser tests. He understands in general terms the nature of the proceedings, he can plead to the charge and exercise his right of challenge. He has an understanding of the personnel involved in the trial of an offender on an indictment. 9 The evidence discloses that the accused is a person of limited intellectual ability. He is described by Dr Westmore as possessing an intellectual disability combined with educational poverty. He currently suffers from a depressive illness. 10 A feature of the accused's current presentation is that he is unable to discuss the circumstances surrounding the commission of the offence. In Dr Westmore's opinion, the accused is unable, as distinct from unwilling, to discuss the matter. Dr Westmore considers that the accused requires treatment and a course of antidepressants. Dr Westmore notes that the accused has a reasonably good understanding of the Presser issues (and from that perspective he is fit) but says that his prevailing mood state and psychological problems at the present make him unfit to be tried. 11 It is to be noted that a person is unfit to be tried if he is unable to make defence or answer to the charge brought against him and is unable by reason of his mental condition to instruct counsel as to his version of events. 12 I turn now to the report of Dr Olav Neilssen who was retained on behalf of the Crown. Dr Neilssen is of the opinion that the accused is presently suffering from a major depressive illness. This is against a background of what Dr Neilssen describes as borderline mental retardation. Dr Neilssen considers that the accused is currently unfit for trial. He notes that the accused's cognitive performance and understanding of the legal system were assessed to be in a range which would normally be considered as fit for trial. However, Dr Neilssen shares Dr Westmore's opinion that the accused's depressive illness would prevent him from adequately participating in his trial if the trial were to go ahead in November 2000 as planned. Dr Neilssen goes on to observe: "Even if he were to make his version of events clear to his legal representatives before the trial, in his current state, the stress of the trial would cause him to decompensate in a way that would affect his ability to give further instructions or give evidence himself, if required."