R v WILLS [2007] NSWSC 1319

New South Wales Supreme Court

CITATION : R v WILLS [2007] NSWSC 1319

HEARING DATE(S) : 22-23 October 2007

JUDGMENT DATE : 23 October 2007

JURISDICTION : Criminal Fitness hearing

JUDGMENT OF : McClellan CJatCL

DECISION : Mr Wills is fit to plead.

CATCHWORDS : CRIMINAL LAW - fitness hearing - psychiatiric illness - whether able to make a proper defence and give instructions - whether fit to be tried under medication

CASES CITED : Kesavarajah v The Queen (1994) 181 CLR 230 R v Presser (1958) VR 45

PARTIES : Russell Clement Wills The Crown

FILE NUMBER(S) : SC 2003/6192

COUNSEL : M Paish (Accused) C Maxwell QC (Crown)

SOLICITORS : R F Bergagnin & Co (accused) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT FILE NUMBER(S) : 2003/72

LOWER COURT JUDICIAL OFFICER : Studdert J

LOWER COURT DATE OF DECISION : 22 April 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

McCLELLAN CJ at CL

TUESDAY 23 OCTOBER 2007

2003/6192001 WILLS, Russell

JUDGMENT – Fitness to be tried 1 HIS HONOUR: Mr Russell Clement Wills was convicted by a jury of the murder of Hans Hoch at Surry Hills on 16 July 2002. He was sentenced to imprisonment for a period of eighteen years with a non-parole period of fourteen years. At the time he was sentenced there was evidence before the sentencing judge of a psychiatric illness. The sentencing judge had regard to that aspect of the matter as he was required to do when imposing the sentence. 2 Mr Wills appealed his conviction and sentence. The matter came before the Court of Criminal Appeal before which it was submitted that having regard to the evidence of his psychiatric problems there was a question as to whether or not he was fit to be tried at the time of his trial. The Court considered that submission and in a judgment which was delivered by Beazley JA, with whom the other judges agreed, her Honour expressed the opinion that the medical evidence at sentence and the evidence before the Court of Criminal Appeal raised a question of Mr Wills' fitness to be tried, in particular, in relation to his ability to make a proper defence to the charge. 3 Dr Nielssen, who gave evidence before the Court of Criminal Appeal, was accepted by the court when he indicated that the appellant's lack of insight into his medical condition meant that he was not able to give instructions to his lawyers at the time of the trial. The court of course did not determine whether he was unfit to be tried but nevertheless the question having been raised in the court, and the court being satisfied that there may have been the relevant difficulty, concluded that as the evidence stood the court was not satisfied that Mr Wills would have been found fit for trial had the matter been raised at his trial. The court proceeded to quash the conviction and order that a fitness hearing be conducted in pursuance of an order which the court made that there be a new trial. 4 The required fitness hearing has been conducted before me. As it transpires the evidence, from both sides, is to the effect that Mr Wills is now fit to be tried. The Crown has tendered reports from Dr Rosalie Wilcox, a general and forensic psychiatrist. Apart from the reports which were available to the Court of Criminal Appeal from Dr Wilcox there is a further report dated 22 October 2007 in which she has particular regard to the requirements of the law in relation to the question of fitness and expresses the view that Mr Wills is fit to be tried. 5 Dr Nielssen has also given evidence before me. Apart from two earlier reports of Dr Nielssen which formed the basis for the determination in the Court of Criminal Appeal Dr Nielssen has given oral evidence. It was Dr Nielssen who examined the appellant and gave evidence at the time of his sentence hearing raising the question of psychiatric illness. In his report of October 2006 Dr Nielssen identified that Mr Wills had an alcohol dependence and abuse which was in remission since his arrest. He also identified brain damage, secondary to trauma, and alcohol abuse and identified a condition of schizophrenia in Mr Wills. He said that at that time he believed Mr Wills had a chronic schizophrenic illness. He further believed that on the balance of probabilities Mr Wills was unfit to enter a plea and was unfit at the time of his trial when he was experiencing acute symptoms of mental illness that led him to believe that he was in danger. His illness affected his ability to follow the proceedings and prevented him giving instructions that may have offered an alternative explanation of the events or at least raised the issue of his own abnormal mental state. 6 In his evidence before me today Dr Nielssen said that he had conducted a further examination of Mr Wills and having regard to the tests laid down by the court in R v Presser (1958) VR 45 and Kesavarajah v The Queen (1994) 181 CLR 230 he was of the opinion that Mr Wills is presently fit to plead. It would appear that the problems which Dr Nielssen previously identified were as a result of Mr Wills not maintaining his regime of psychiatric medication. It is undoubted that Mr Wills suffers from a psychiatric illness but it is the opinion of Dr Nielssen that if appropriately medicated his symptoms can be kept under control with the consequence that he would be fit to plead at a future trial. In particular, Dr Nielssen is satisfied, having regard to his recent examination of Mr Wills, that he presently has a capacity to decide the defence that he will rely upon and to instruct counsel as to the defence which he wishes to have conducted on his behalf. This was the problem which Dr Nielssen previously identified. 7 In those circumstances, having regard to all of the evidence, I am satisfied that Mr Wills is fit to plead. 8 There is one further matter which I should address. Dr Nielssen's present opinion is based upon the reintroduction of the medication regime necessary to control Mr Wills' symptoms. The medication which is being utilised with effect is Quetiapine with the commercial name of Seroquel. This medication is prescribed for Mr Wills by medical officers within the prison system. Apparently there are other medications which may achieve the same result, some of which may not have the side effects of Quetiapine. 9 Dr Nielssen believes that unless suitable medication is continued there is a risk that Mr Wills' condition may deteriorate with the consequence that he may have difficulties at his further trial. It will also be important that during the course of that trial having regard to the exigencies that Mr Wills will necessarily undergo being transported to and from the court, with intrusions into his usual regime, that arrangements be made to ensure that his medication is available to him and that it is taken. 10 To this end I recommend to the authorities responsible for his health that Mr Wills be regularly reviewed by the Parklea Mental Health Unit which should also ensure that appropriate medication is provided to him. I also recommend that the Mental Health Unit prepare a report which would be available to both the Crown and the defence at the commencement of the future trial which provides an assessment of his medical condition at that time and also provides an account of the regime which has been put in place to ensure that the medication will be both available and taken by Mr Wills during the course of the trial. The present state of Mr Wills' health could be affected unless appropriate arrangements are in place and his medication is maintained. **********