New South Wales Supreme Court CITATION : R v Coleman [2009] NSWSC 457 HEARING DATE(S) : 27 May 2009 JURISDICTION : Common Law JUDGMENT OF : Adams J at 1 EX TEMPORE JUDGMENT DATE : 27 May 2009 DECISION : Arnold Coleman is referred to the Mental Health Tribunal to be dealt with in accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990. Bail refused. LEGISLATION CITED : Mental Health (Forensic Provisions) Act 1990 s 14 CATEGORY : Principal judgment CASES CITED : The Queen v Presser [1958] VR 45 PARTIES : Regina Arnold COLEMAN FILE NUMBER(S) : SC 2009/1628001 COUNSEL : P Ingram (Crown) C Bruce SC (Defence) SOLICITORS : I G Knight S C Kavanagh THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST ADAMS J WEDNESDAY 27 MAY 2009 2009/1628001- Regina v Arnold COLEMAN FITNESS TO BE TRIED JUDGMENT 1 HIS HONOUR: This is a proceeding under the Mental Health (Forensic Provisions) Act 1990 involving the fitness or otherwise of Mr Arnold Coleman for trial. In brief, it is clear from the tendered material that an inquiry should be conducted and the question has been raised in good faith. Medical reports have been tendered which set out a history of the matter and the consultations with the doctors. That material has been in effect jointly placed before the Court by prosecution and defence. There is no controversy as to the appropriate orders but, of course, it is necessary that I satisfy myself as to the matters falling for determination under the Act. 2 The accused, Arnold Coleman, is charged with the murder of his wife Jean Kathleen Coleman on 2 October 1998 at Goonellebah. The following brief account is taken from the Crown case statement, which was tendered by consent as evidence of the facts asserted in it. Mr Coleman, who is 87 years of age, lived with his wife, who was 86 years of age, at Goonellebah. On the morning of 2 October 2008, he contacted the police emergency line, identified himself and said: "I've just killed my wife." When asked by the operator what had happened, Mr Coleman said: "What's happened, she's been playing up so I gave her till today to knock it off, she wouldn't, so I, I killed her." He said that the knife was lying alongside the bed on the table. When asked if he had checked to see whether his wife was dead, Mr Coleman said: "I've laid with her well for quite a while now." Police attended shortly after that call, and to them, Mr Coleman said: "I stabbed her, she is in the bedroom dead." 3 Mr Coleman was then arrested. Mrs Coleman was lying on a double bed, wearing a nightdress and covered from the waist down with the doona. She was clearly dead. There was a black-handled knife on the bedside table covered with blood. 4 Thus far, it seems that Mr Coleman had understood what he had done and gave a reason for doing it. Broadly speaking, he adhered to that account when he spoke to police officers. However, it became increasingly clear that he had significant mental health problems. Pursuant to a direction of the Magistrate, shortly after his first appearance in the Lismore Local Court on 3 October 2008, he was examined at the Lismore Base Hospital by Dr Siepkon who diagnosed him as "currently mentally ill with a disorder of thought", and required assessment and treatment. He was indeed so examined and assessed. 5 A number of reports have been tendered. Dr Sinclair, on behalf of Justice Health on 1 December 2008 (a report to the Magistrate) stated – "Mr Coleman suffers from vascular dementia (severe category) with psychotic features. It is my opinion that Mr Coleman is suffering with delusions of infidelity on a background of a dementing process of a vascular type. The evidence for the vascular dementia is his generalised ischemic changes, (back of lower limb amputation) including peripheral vascular disease, hypertension and other cardio risk factors for vascular dementia. I do believe that he has developed an entrenched and delusional belief about his wife's infidelity at the time of the alleged offence. In addition, he expressed delusions of misinterpretation, self-referential and misidentification." 6 Dr Sinclair considered that he remained mentally ill. She was troubled by what appeared to be his experiencing of auditory and possibly visual hallucinations, concluding, "he has a range of symptoms consistent with an acute psychotic process associated with a dementing process". 7 Turning her attention to his fitness for trial, she thought he was currently unfit, saying: "He still has acute psychotic symptoms, and in addition, he is currently expressing no understanding of anything to do with court, including any of the procedures involved. Currently he is not competent or fit to plead in my opinion. Currently, Mr Coleman is incompetent to make any decisions with regard to entering into a plea or any other matters relating to the court." 8 He was also seen by Dr Bruce Westmore on 27 January 2009 for the purpose both of assessing his fitness to plead and the possibility of a mental illness defence. Dr Westmore reported it likely that he did have such a defence but did not arrive at a definitive opinion about his fitness for trial, though he expressed an impression that it is likely he was unfit. 9 At the instance of the Director of Public Prosecutions, Mr Coleman was examined by Dr Robert Delaforce on 13 February 2009. Dr Delaforce has provided a very thorough report dealing not only with his own examination but matters appearing in the medical history with which he was provided, namely, records from Goonellebah Medical Centre, Richmond Aged Care and Assessment team, Crowley Sherwood Home Nursing and the North Coast Area Health Service dealing with mental health services provided both before and after the killing of Mrs Coleman. He also read material provided to him from the police brief comprising statements of witnesses obtained by the police in the course of their investigation. He examined the transcript of the interview conducted between police and Mr Coleman and the Justice Health file compiled when he was on remand. It is not necessary for me to set out in detail the comments or observations of Dr Delaforce, but I should quote the following conclusion: "Therefore, like Dr Westmore, I am especially concerned about Mr Coleman's ongoing capacity prior to enduring any court proceedings to be able to follow the proceedings and recall to enable him to adequately communicate with his lawyers and give them adequate instructions. The relatively simple matter of his, in my opinion, repeatedly confidently showing his understanding in pleading guilty to stabbing husband wife, therefore his reporting, he expects a continuing stay in prison could easily become too complicated for him. Therefore, I conclude that Mr Coleman is probably unfit to be tried. That unfitness will be permanent because of the permanent and worsening state of his dementia." He also opined that there was available to Mr Coleman the defence of mental illness. 10 The question of whether there is indeed a defence of mental illness is not one for me to determine and, in some respects, the medical reports do not deal directly with what strikes me as the crucial issue, even if Mr Coleman was harbouring a delusion about his wife's infidelity (and it might be surmised and there is other evidence that supports this as the case) namely, that he was unable to appreciate that what he was doing was wrong by virtue of his mental incapacity. That question, whether he was able to reason adequately about the rightness or wrongness of what he was doing, is not directly adverted to by the doctors. I simply make this observation in passing because the issue is not before me. I mention the matter because it is clear that, as the matter stands at present, Mr Coleman would not be able to adequately instruct his legal representatives about the matters necessary to be litigated on the issues of diminished responsibility or mental illness. It is plain also that he is presently unable to understand the elements of such potential defences for the purposes of determining whether a plea of guilty is appropriate or not. 11 On the face of it, a plea of guilty would appear to be inappropriate, and it follows, I think from the medical evidence, that Mr Coleman's mental state would not permit a trial to be adequately conducted. At least as important as his capacity to adequately instruct his legal representatives would be his ability to give evidence. On some matters, it seems clear enough, he would be able to give evidence. By and large he seems to be able to recollect the particular events and his beliefs about his wife's conduct but there must be a real doubt about his ability to recall or describe his state of mind at the time or other matters that would be material to the live issues in the trial. 12 It is accepted that the relevant considerations for determining fitness for trial are those articulated by Justice Smith in The Queen v Presser [1958] VR 45. I do not propose to set them out. It is clear from what I have already said that Mr Coleman is, as both Crown and defence agree, unfit for trial within the meaning of the Act. 13 Accordingly, Mr Coleman is referred to the Mental Health Tribunal to be dealt with in accordance with the Act. ********** [attachment "Coleman.rtf" deleted by Anna Ritchie/SCO/NSW_AG] 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.