New South Wales Supreme Court CITATION : COLES ats REGINA [2008] NSWSC 672 HEARING DATE(S) : 1 July 2008 JUDGMENT DATE : 2 July 2008 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J DECISION : Fitness for trial inquiry not needed CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Mental Health - Whether trial of fitness for trial required - Psychiatric assessment and reassessment LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 CATEGORY : Procedural and other rulings CASES CITED : R v Presser 1958 VR 45 R v Rivkin (2004) 59 NSWLR 284 PARTIES : Peter John COLES - Accused REGINA - Crown FILE NUMBER(S) : SC 2008/00002874 COUNSEL : T Hoyle SC - Crown P Winch - Accused SOLICITORS : Solicitor for Public Prosecutions - Crown Legal Aid Commission - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J 2 July 2008 2008/00002874 Peter John COLES ats. REGINA JUDGMENT 1 HIS HONOUR: At a pre-trial directions hearing on 4 April 2008 it was directed that an inquiry be held pursuant to the Mental Health (Criminal Procedure) Act 1990 concerning the fitness of the accused Peter John Coles to be tried. The Crown proposed to present an indictment containing two counts alleging first, that on 5 November 2006 he murdered Janice Eileen Coles (his mother) and second, that on the same date he maliciously wounded Gary Dangerfield. The issue of his possible unfitness was raised before arraignment and he has not yet been arraigned. 2 On 1 July 2008 the matter was listed for the purpose of inquiry. Mr Hoyle SC appeared for the Crown and Mr Winch of counsel for the accused. As stipulated in the statute, the proceedings were not conducted in an adversary manner and there was put before the Court by consent, a bundle of documents comprising, inter alia, witness statements, a transcript of interview between the accused and investigating police conducted after his arrest, and various psychiatric reports. 3 In any event, there is no dispute about the facts and brief reference will suffice to record my findings. Janice Coles and Gary Dangerfield shared a flat in Dee Why over a period of some eight to ten years. At the relevant time they lived, as Mr Dangerfield described, as "strong spiritual friends". They occupied separate bedrooms. On Saturday night 4 November they had retired to their rooms. In the early hours of the next morning, Mr Dangerfield was awakened by Janice Coles coming into his room and calling that her son Peter (the accused) had stabbed her. 4 They went to her room and eventually the accused entered and stabbed his mother on multiple occasions. Mr Dangerfield had tried to intervene but a struggle ensued and he himself was injured by stabbing. He fled to seek help. In the meantime the accused made his way back to his flat in Manly where police attended and there arrested him. Several hours later in a recorded interview with police he agreed that he had stabbed his mother and had done so, he said, because he loved her. This claim was obviously not rational. The accused has a long history of mental illness and it would be futile to seek to gauge many of his statements against standards of rationality. 5 My present task is not directed to culpability for the acts of stabbing and it would be mere surplusage to recount at length the history of the accused's manifestations of illness. The issue is his fitness now to plead and be tried. No onus of proof is cast upon the Crown or the accused in relation to inquiry as to fitness. 6 The test to be applied has been classically described by Smith J in R v Presser 1958 VR 45 and it is has consistently been followed in this State: for example R v Rivfkin (2004) 59 NSWLR 284. The passage commencing at p 49 of the report in Presser does not in the circumstances of this case to which I will shortly turn, require recitation. It might be observed that forensic psychiatrists are obviously familiar with the "Presser" test. 7 The conclusion that an inquiry as to fitness was required emerged from an opinion expressed by Dr Stephen Allnutt who saw the accused at the request of the Crown on 8 December 2007. In his report following examination on that day he stated: "In my opinion, the Defendant manifests capacity to understand what it is that he is charged with. He was capable of articulating the nature of the charges to me when I enquired; in my view he has a capacity to understand the general nature of the proceedings – in interview with me the Defendant clearly understood the roles of the various individuals in the Court and that the proceeding was an inquiry into events to determine his guilt or innocence; I believe the Defendant has capacity to plea to the charge – he was able to articulate a choice of plea and a rational reason for choosing that plea. I believe the Defendant has capacity to decide what defence he will rely upon. I have concern that the Defendant, presents with a significant disorganisation in his thinking processes, particularly when he discusses his relationship with his mother. This was most evident when exploring his feelings around his mother and the account of the alleged offence. When providing an account (which I have not reported here), the Defendant became quite flagrantly disorganised in his thinking and it was difficult to follow or get a sense that the information that he was providing had reliability; and because of this I believe that the Defendant would have difficulty at this stage in making his defence and answering to the charge and he would have difficulty in giving the necessary instruction by letting his counsel know what his version of the facts are. His thought disorder raises the issue of the reliability of his account of the alleged offence, including the nature of his decision making and reasoning that relates to the alleged offence. I believe this would also impair his capacity to tell the Court or psychiatrists his version what his version. He will probably have some difficulty in exercising his right of challenge. Overall therefore I believe the Defendant should currently be regarded as unfit to stand trial. The Defendant is taking antipsychotic medication. It is not clear to me the degree to which the Defendant has responded so far to the antipsychotic medication, however, he is taking Clozapine, which is a medication, which is prescribed to individuals who have treatment resistant schizophrenia, and there is a risk that the Defendant would not respond to treatment within the next 12 months. It is however important that if there is fitness hearing that I have the opportunity to reassess him as there also remains a possibility that his mental state could have improved by then to the degree that he is fit. This is difficult to predict." 8 Previously (on 31 May 2007) Dr Olav Nielssen had examined and made an assessment concerning the accused. In his subsequent report he made no reference to an issue of fitness to plead nor did Dr Bruce Westmore who had seen the accused on 19 April 2007. 9 Given what Dr Allnutt had written, Dr Nielssen was asked to re-examine the accused and to turn his attention specifically to the question of fitness. In a report dated 22 February 2008 he stated: "Mr Coles recognises that he has a mental illness, which is confirmed by his long term adherence to antipsychotic medication in the community. He is aware that he experienced an acute exacerbation of the illness around the time of the offence. He has consistently stated that he intends to enter a plea of not guilty on the grounds of mental illness. He has demonstrated sufficient understanding of the nature of the charges and proceedings to be considered fit to enter a plea and fit for the sort of trial that he faces. Hence I believe that notwithstanding the effect of a severe communication disorder that would impede Mr Coles' ability to give coherent evidence on his own behalf in court, that he is on balance now fit to enter a plea." 10 Dr Allnutt was made aware of this expression of opinion. He was invited to reassess the accused and in a report of 30 May 2008 (which it should be noted is after the date for the inquiry had been fixed at the directions hearing) he expressed this further opinion: "It should be stated at outset that in examining the Defendant's capacity to stand trial, his presentation was replete with difficulties in communicating his understanding of the court process as outlined in my report. Notwithstanding this, it was possible to infer from the information he provided that he had adequate capacity in many areas relating to Presser despite his obvious disorganised manner of presenting the information. In my opinion, the Defendant manifests capacity to understand what it is he is charged with – while he articulated to me an understanding that he was charged with malicious wounding, inherent in my interview with him was an understanding that he was charged with murder and he was able to provide with an a (sic) basic understanding of the allegations. He manifested, in my view, adequate capacity to understand the general nature of the proceedings – he communicated that the proceedings were an inquiry into whether or not he was guilty and that he was hoping to be found not guilty; he manifested capacity to plead to the charge – he communicated to me that he understood the various pleas available to him; with the information he gave me I was able to form the view that he understood the meanings of the terms guilty and not guilty and the consequences of findings related to those terms; in my opinion, he had capacity to understand that he likely suffered from illness symptoms at the time and was able to articulate his intention to pursue a defence of not guilty by reason of mental illness. As with my prior interview, when discussing matters that related to the offence itself, he became more disorganised in his thought processes. This is not uncommon in individuals who suffer from thought disorder, discussing things that deal directly with issues relating to his delusional beliefs symptoms or issues that cause a high degree of stress that they experience more difficulties in organising their thoughts. This to some degree explains why at times he was capable of giving myself and Dr Nielssen a reasonably coherent account with regard to his psychiatric history but seemed to become more disorganised when discussing issues relating to the offence and also issue of fitness to stand trial. I believe because of his ongoing and severe communication difficulties that he would have difficulty in communicating with counsel. He would probably to able to let his counsel know what his version of the facts and tell the Court his version. However to the listener his articulation of his version would likely sound confusing because of his odd use of language, tangentiality and disorganisation of ideas. The listener would have to infer the underlying meaning based on what the lister (sic) had heard. This, in my view, increases the risk that the listener could misinterpret what the Defendant actually means to state. I would agree with Dr Nielssen that if this matter goes to a hearing on the issue of insanity and the Defendant participates to a relatively little degree in his actual defence at such a hearing that he would likely be fit to stand trial. However, if the Court adopted the view that at the time of a fitness hearing the Court considers the issue of fitness in the context of a range of possibilities (a plea of not guilty and a trial included), ignoring the assumption that this would go to a hearing on the issue of insanity; then I do not believe that he could be regarded as able to make his defence or answer to the charge by giving necessary instruction to his legal representatives. I believe that his counsel would have difficulty in feeling confident that the information he provided to them with regard to the circumstances around the offence or his interpretation of the evidence as the trial proceeds was reliable. I also believe that due to his thought disorder and his tendency to become easily confused, he would have difficulty in following proceedings in a trial. On this basis he would be found unfit to stand trial." 11 In the light of these developments it is the submission of both counsel who, in conformity with the statutory edict, had adopted for this purpose non adversary posture, that I should determine that there is no longer any need for a fitness inquiry to be conducted. I agree. 12 An election by the accused for trial by judge alone has been filed. It has been forecast that the content of trial evidence, if the accused be arraigned and plead not guilty as anticipated, will be identical with that which is presently before the Court. As I have said, it is not necessary for present purposes to summarize the evidence but it is common ground that there is a unanimity of opinion in the psychiatric evidence that, at the relevant time, the accused was suffering from a mental illness that deprived him of the capacity to understand that what he was doing was morally wrong. 13 As authorized by s 8 (2) of the Mental Health (Criminal Procedure) Act I determine that there is no longer any need to conduct an inquiry on the question of the unfitness of the accused to be tried. ********** 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.