Supreme Court New South Wales Medium Neutral Citation: R v Waszczuk [2011] NSWSC 212 Hearing dates: 29 June 2010; 24 March 2011 Decision date: 24 March 2011 Before: R A Hulme J Decision: The offender is unfit to be tried Catchwords: CRIMINAL LAW - procedure - fitness to plead or be tried - question raised during sentence proceedings - inquiry held - finding of unfitness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina Martin Jan Waszczuk Representation: Counsel: Mr P Ingram SC (Crown) Ms J Manuell SC (Offender) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2009/74187 Judgment 1HIS HONOUR: This matter commenced before me on 29 June 2010 when the offender adhered to a plea of guilty that he entered in the Local Court and confirmed on arraignment in this Court in respect of an offence of murder. 2There is no need to go into the detail of the offence but briefly, it involves the killing of the offender's father in circumstances that might be viewed as being somewhat bizarre. 3The matter proceeded before me on 29 June with the tendering of material in the Crown case and in the defence case. Oral submissions were then made by counsel for both parties. 4I developed a concern on that occasion as to the difficulty of proceeding to sentence the offender in circumstances in which there was no material before me whatsoever as to the reasons for which he did what he did to his father. There were no medico-legal reports before me on that occasion, although there was a statement by Dr Kevin Vaughan. In that statement, the doctor recounted the offender's history of being diagnosed with mental illness and the admissions and treatments he had received. 5The matter was stood over to enable a report to be obtained from Justice Health. In the intervening period, reports have been provided by Professor Greenberg of 24 September 2010 and 13 December 2010, and by Dr Bruce Westmore of 1 November 2010 and 17 March 2011. 6An issue has been ventilated today as to the offender's fitness to be tried. There has also been ventilated a question as to whether the Court should continue to proceed upon an acceptance of the offender's plea of guilty. I will return briefly to the latter but will now address the former. 7In the report of Professor Greenberg of 13 December 2010, he says (at p 4): "Mr Waszczuk stated that he would be willing to discuss these reasons in full why he killed his father only with his solicitor under solicitor/client privilege. He stated the only reason why he would not discuss this with the writer was that he feared these reason/s maybe aggravating factor/s in his sentencing hearing. The writer therefore had some concerns about whether he was able to give his version of the facts and instruct his legal counsel. Should Mr Waszczuk maintained his silence to his solicitor under solicitor/client privilege, the writer of this report would have serious concerns that Mr Waszczuk is capable of giving his version of the facts and giving evidence if required to do so. I am therefore of the opinion that on the balance of probabilities, Mr Waszczuk is currently fit to stand trial provided he give a frank open disclosure of his reasoning and motivation at the time period surrounding the alleged offence to his solicitor under solicitor/client privilege. I am of the view that he is currently able to give his version of the facts with this proviso. Should Mr Waszczuk be unable to disclose under solicitor/client privilege his motivation and reasoning for his behaviour at the time period surrounding the alleged offence, I would have serious concerns that he does not have the capacity to give his version of the facts because of ongoing delusional and possible paranoid delusional beliefs and/or grandiose beliefs. In such a situation, I would have concerns that he would not be able to make his defence and with counsel, to instruct his counsel and to communicate his version of the facts. In such a scenario he therefore would in my view be unfit to plead and stand trial." 8In Dr Westmore's report of 1 November 2010, he said (at p 2): "I asked him to confirm that his treating doctor and his legal representatives had discussed with him the possibility of raising a mental illness defence. He said "That is correct." I asked him what his views were about that and he said "I would rather not raise the mental illness defence, it involves Clozapine and protracted treatment and not being able to get out of the mental health system. I would rather be in the mainstream section and see what I can get with a discount (for pleading guilty), (and not have to) go to the tribunal every six months." 9Later in his report Dr Westmore said (at p 5): "The issue of fitness is a very difficult question in this particular case and I have attempted to address that in my previous reports. At this stage I am continuing to offer the view that he is fit to be tried, despite the fact that his insight into his mental illness is limited at best and possibly completely absent and despite the fact that it is probable that he continues to suffer psychotic symptoms. My reasons for indicating that I think he is on balance fit to be tried is that his explanations for not running a mental illness defence appear, at least at this time, to be based solely on rational decisions rather than influenced directly by his psychotic illness. Complicating this however is that I believe that Mr Waszczuk is a man of very high intelligence and as such he knows what to say and what not to say regarding certain matters. Nevertheless, there is his rational explanation for not wanting to raise a mental illness defence and I have no reasons to suggest or indicate to the court that those rational reasons are not truly held by Mr Waszczuk and that they are not the true basis for his wish not to run a mental illness defence." 10In his report of 17 March 2011, Dr Westmore said (at p 1): "The critical question perhaps in this case is whether Mr Waszczuk is not making such disclosures because of his mental illness. I think we all accept that he is severely mentally ill and that he has impaired insight into that fact. However, Professor Greenberg spoke to Mr Waszczuk about the alleged offence and the Professor wrote "he stated that he would not give the reasons for his behaviour at the time period because his reasons maybe an aggravating factor in sentencing procedures". Professor Greenberg asked Mr Waszczuk to consider whether there was a possibility that these may be mitigating factors as well but Mr Waszczuk re-confirmed his view that he thought the reasons would be perceived as an "aggravating factor". To me, this could be interpreted as a rational explanation for not wanting to make the relevant disclosures. I suspect that, because of his intelligence, he is aware that if he makes such a disclosure then the inevitable outcome will be that it will be concluded that his actions towards his father were driven by his mental illness which, in turn, will result in an outcome he does not want, that is, he is likely to become a forensic patient. I continue to maintain the view that Mr Waszczuk is fit to be tried but I note again this is a most complex matter. The material contained in Professor Greenberg's report does not lead me to alter my opinion regarding Mr Waszczuk's fitness." 11In R v Presser [1958] VR 45 at 48, the various criteria to be considered in relation to a person's fitness or unfitness to be tried were set out. They have been subsequently well accepted as being the catalogue of matters requiring consideration. The last matter there set out is, "sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the Court and to his counsel". 12Professor Greenberg's opinion was to the effect that if the offender provided his version of events, including his reasons for doing what he did, to his solicitors under privilege, then the professor's opinion would be that he was fit to be tried. If the offender did not do so then, I repeat the quote from the professor's report, there would be "serious concerns that he does not have capacity to give his version of the facts because of ongoing delusional and possible paranoia delusional beliefs and/or grandiose beliefs". As a consequence, Professor Greenberg said he would be of the view that the offender is unfit to be tried. 13On the material that is before me, I do not know if the offender has been able to provide his solicitors with his version of the events in the respects that I have mentioned. This question is squarely raised in Professor Greenberg's reports. Senior counsel for the Crown referred to it in ventilating the issue of the offender's fitness earlier today. Senior counsel for the offender, being aware of it, has not provided me with any information either way on the issue. Clearly, she did not have to. However, the result is that I do not have any information, let alone evidence, that the offender does have the capacity to make his version of the facts known to his counsel. 14A further matter that was presented to me in evidence today was the fact that on 18 February this year, because of mental illness, the offender was transferred to a mental health facility pursuant to s 55 of the Mental Health (Forensic Provisions) Act 1990. According to Professor Greenberg's review of the relevant records last evening, this was because the offender had refused to take his medication for the previous six weeks or more; that he is known to suffer from schizophrenia; and that he had been observed by staff to be removing his clothing and appearing to be preoccupied as if he is hearing voices. These matters raised the concern of correctional staff sufficiently to warrant action under s 55 of the Mental Health (Forensic Provisions) Act . The offender is currently being held as an involuntary patient. 15Dr Westmore's opinion as to the offender being fit to be tried is based upon his view that the offender's decision not to run a defence of mental illness appeared to be rational. Dr Westmore was also of that view because the offender's decision not to disclose his reasons for killing his father could also be interpreted as rational. Despite Dr Westmore's awareness of Professor Greenberg's opinion, he remained of the view that the offender was fit to be tried. Importantly, in my view, Dr Westmore also immediately acknowledged in his second report that this was "a most complex matter." 16Professor Greenberg, who gave evidence before me today, was referred to Dr Westmore's report of 17 March 2011. He disagreed with Dr Westmore's opinion. In his view, it could not be safely assumed that the offender had a rational mind. Professor Greenberg noted that the offender has a mental illness with impaired insight. He acknowledged that the offender had the right to choose his defence but was of the view that Dr Westmore had assumed that the offender had made that choice for rational reasons. It was Professor Greenberg's view that that assumption was not soundly based, particularly having regard to the fact that in the light of all the material that is available, it appears that the offender has never provided anybody with his version of the events (in terms of the reasons for doing what he did), or at least there is no evidence that he had. 17Professor Greenberg was also of the view that because the offender was mentally ill, it was very likely that he was unable to give his version of events. He also noted that the little that the offender had said about the circumstances attending the killing of his father was indicative of a delusional state of mind. 18Professor Greenberg accepted that, on occasions, an accused person might not provide a full and frank version of events to his lawyers, but noted that it can usually be assumed that the accused person is sane; whereas, in this case, that assumption cannot apply. 19Having regard to the opinion of Professor Greenberg and noting the opinion of Dr Westmore, with the acknowledgement he added as to the complexity of the matter; having regard to the lack of material before the court which would allay any concern that the offender does have the capacity to enable him to make known to his lawyers and the court, if need be, his version of events; and having regard to the recent transfer of the offender to a mental health facility and his detention there as an involuntary patient on the basis of mental illness; I am of the view that there is a question as to the offender's fitness to be tried. 20In these circumstances, pursuant to s 10 of the Mental Health (Forensic (Provisions) Act, there is no discretion about the matter. An inquiry must be conducted to determine whether he is unfit to be tried. 21I mentioned earlier that there had also been ventilated today a question about whether the offender's plea of guilty represents a true acknowledgement of his guilt, particularly as to the mental element of the offence. I am aware that a plea of guilty may be entered for pragmatic reasons. This is not an issue that I need to determine, having regard to what I have just said, but may be left in abeyance at this point. 22Pursuant to s 10 of the Mental Health (Forensic Provisions) Act I order that an inquiry be conducted to determine if the offender is unfit to be tried. WITH THE AGREEMENT OF BOTH PARTIES AN INQUIRY TO DETERMINE WHETHER THE OFFENDER WAS UNFIT TO BE TRIED PROCEEDED IMMEDIATELY 23HIS HONOUR: Earlier today I gave a judgment which culminated in my directing that pursuant to s 10 of the Mental Health (Forensic Provisions) Act 1990 there be an inquiry to determine whether Mr Waszczuk is unfit to be tried for the offence of murder. 24In that judgment I set out the evidence that had been placed before me in sentence proceedings. Mr Waszczuk had pleaded guilty to the offence of murder in the Local Court and had adhered to that plea of guilty in this Court. 25I also set out in that judgment the issue of concern that gave rise, in my mind, to there being a question as to Mr Waszczuk's fitness to be tried. I will not repeat my summary of that material. 26It was the common position of the parties that such inquiry could proceed forthwith. That has occurred with the tender in the inquiry of the two reports of Professor Greenberg and the two reports of Dr Westmore, together with the oral evidence given before me this morning by Professor Greenberg. I also received in the inquiry oral evidence from Mr Shukla who is Mr Waszczuk's solicitor. It included that Mr Waszczuk had specifically consented to Mr Shukla giving such evidence. 27Briefly, the concern which gave rise to the opinion of Professor Greenberg that Mr Waszczuk might be unfit to be tried was whether, in respect of the final criteria mentioned in R v Presser [1958] VR 45 at 48, Mr Waszczuk had: "Sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the Court and to his counsel". 28I indicated in my earlier judgment that there was no evidence of Mr Waszczuk having informed anyone as to his reasons for killing his father. T he concern of Professor Greenberg was that he lacked the capacity to make known, at least to his lawyers, his motive for acting as he did. 29Mr Shukla said in the course of his evidence that Mr Waszczuk had today indicated in conference that he was not willing to provide any further information to either psychiatrists, or to Mr Shukla himself, as to his reasons for committing the offence. 30I am, therefore, left with two competing opinions by two very eminent psychiatrists. 31Dr Westmore indicated in the second of his two reports that, notwithstanding the views of Professor Greenberg, he remained of the view that Mr Waszczuk was fit to be tried but with some qualification to the expression of that opinion in that after expressing that view, he immediately stated, "But I note again this is a most complex matter." To my mind, that may be interpreted as an acknowledgment by Dr Westmore that the issue is not at all straightforward. 32The confirmation in Mr Shukla's evidence that the concern of Professor Greenberg reflects the reality means that Professor Greenberg's opinion is, and he states it in unqualified terms, that Mr Waszczuk is unfit to plead and stand trial. 33Professor Greenberg put it in terms of him having, "serious concerns that he [Mr Waszczuk] does not have the capacity to give his version of the facts because of ongoing delusional and possible paranoid delusional beliefs and/or grandiose beliefs." 34There is no onus of proof in an inquiry as to unfitness to be tried. 35I am of the view, having taken into account the opinions and the reasons of both of the psychiatrists, that I should accept the opinion of Professor Greenberg. Mr Waszczuk is mentally ill. The evidence before me strongly suggests that he was at the time he killed his father. If he has any insight into that fact at all, it is on a very limited basis. It seems to me most likely that any decisions he has made as to whether or not he should avail himself of a mental illness defence, or whether he should disclose to his lawyers his reasons for acting as he did in killing his father, are not rationally based. I have come to the conclusion that he does not have a sufficient capacity to make known his version of the facts, at the least to his counsel if not to others, and that the reason for this is as Professor Greenberg opined. 36I am satisfied that Mr Waszczuk is unfit to be tried. I make the following orders: (1)Pursuant to s 14 of the Mental Health (Forensic Provisions) Act , I refer Mr Waszczuk to the Mental Health Review Tribunal. (2)I remand Mr Waszczuk in custody until the determination of the tribunal has been given effect to. (3)I direct the Registrar of the Court to forward to the Mental Health Review Tribunal, all of the reports of the two forensic psychiatrists, together with a transcript of the evidence given today by Professor Greenberg and Mr Shukla. ********** 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. Decision last updated: 28 March 2011