Supreme Court New South Wales Medium Neutral Citation: R v Newbury [2012] NSWSC 34 Hearing dates: 6 February 2012 Decision date: 09 March 2012 Jurisdiction: Common Law - Criminal Before: Davies J Decision: 1. I find that the Accused Wayne Patrick Newbury is unfit to be tried for the offence of the murder of Ross Andrew Tekampe on 3 August 2010. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s 16 of that Act. 4. I direct the Court Registry to provide the following documentation to the Tribunal: (a) A copy of this finding. (b) A copy of any orders made for detention or bail. (c) A transcript of these proceedings. (d) A copy of any psychiatric reports tendered to the Court during these proceedings. (e) A copy of any additional reports tendered as evidence to the Court pertaining to the person's fitness to stand trial, and (f) The Crown Case Statement. Catchwords: CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - Accused suffering from schizophrenia and poly-substance abuse - Accused unfit to be tried. Legislation Cited: Crimes Act 1900 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R (1994) 181 CLR 230 Ngatayi v R (1980) 147 CLR 18 R v Presser [1958] VR 45 Robinson v R ([2008] NSWCCA 64 Category: Principal judgment Parties: Crown Wayne Patrick Newbury (Defendant) Representation: P Barnett SC (Crown) A Coultas-Roberts (Defendant) Director of Public Prosecutions (Crown) Legal Aid NSW (Defendant) File Number(s): 2010/257892 Judgment 1Wayne Newbury ("the Accused") is charged with one count of murder contrary to s 18(1)(a) Crimes Act 1900 in relation to the death of Ross Andrew Tekampe ("the Deceased") on 3 August 2010 at Kanwal. 2The question of fitness of the Accused to be tried having been raised, on 6 February 2012 I conducted an enquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 as to whether the Accused was unfit to be tried for the offence of murder. The criminal case 3At the time of his death the Deceased resided with the Accused at 9 Phyllis Avenue, Kanwal. The Deceased and the Accused were friends, having met each other in gaol at some stage. 4The Crown case statement, which was tendered without opposition from those acting for the Accused, indicated that the Accused had a history of mental illness including schizophrenia. The Deceased was living with the Accused as the Accused's carer pursuant to a casual arrangement entered into with the Accused's mother. The Accused's mother provided the house (which was in the name of the family trust) and, in exchange, the Deceased was required to buy groceries, pay household bills and generally care for the Accused, including giving him his medication. 5At 5.45am on 3 August 2010, the Deceased rang 000 asking for help. He said that he was at 9 Phyllis Avenue and had been stabbed. He told the 000 operator that the person who had stabbed him was the Accused. 6The police and ambulance were dispatched. They arrived shortly after 6am and found the Deceased dead. He was lying on the front porch with the phone by his side, a trail of blood leading from inside the house. 7At around the same time, a resident of 25 Phyllis Avenue called the police as a man was banging on the resident's window shouting "mum". This man was the Accused. The police found him at that house and arrested him. 8The knife, allegedly used to kill the Deceased, was found in a stormwater drain outside 43 Phyllis Avenue. DNA matching the Deceased's was found on the blade of this knife. A resident of Phyllis Avenue saw a man standing near a stormwater drain outside 43 Phyllis Avenue shortly before 6:00am on the day of the Deceased's death. 9The next day, having heard that the murder weapon was missing, this resident looked into the drain and saw a knife there. Police recovered the knife. It was identical to another knife found in the sink of 9 Phyllis Avenue. 10The Accused had blood on his clothes when he was arrested. DNA extracted from the blood matched the Deceased's DNA. 11A number of residents of Phyllis Avenue heard two males yelling beginning from about 5:33am. Some of them heard one of the males yell "help", and one of those residents knew that it was the voice of the Deceased calling out. Cause of death 12The autopsy was conducted by Senior Forensic Pathologist Dr Samarasinghe at the Newcastle Department of Forensic Medicine on 4 August 2010. 13He concluded that the Deceased died from a stab injury of the chest. The fatal injury was on the left side of the chest and had penetrated the left lung and a major branch of the pulmonary artery, resulting in internal haemorrhage. The stab injury track had a total depth of approximately 11 -15 cm. The mechanism of death would have been acute cardiorespiratory failure and hypovolemic shock. 14In Dr Samrasinghe's view the degree of force used to inflict the injury was severe. 15In addition to the fatal stab wound, the Deceased suffered a total of 12 other stab injuries. The injuries had serrated-like patterns on them, consistent with having been inflicted by a serrated knife. One of the wounds went through the face with a total depth of 8cm. There were five wounds on the Deceased's left hand, consistent with their characterisation as defence wounds. The legal test 16The legal test on which unfitness is to be judged is not in doubt. It is to be found in R v Presser [1958] VR 45 at 48, approved in Ngatayi v R (1980) 147 CLR 1 at 8 and Kesavarajah v R (1994) 181 CLR 230 at 246. 17In Robinson v R ([2008] NSWCCA 64 RS Hulme J conveniently tabulated the criteria where he said at [24]: A person accused needs to be able: (i) to understand what it is that he is charged with; (ii) to plead to the charge; (iii) to exercise his right of challenge; (iv) to understand generally the nature of the proceedings, namely, that it is an enquiry as to whether he did what he is charged with; (v) to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities; (vi) to understand ... the substantial effect of any evidence that may be given against him; (vii) to make his defence or answer to the charge. The psychiatric evidence 18The Accused was examined by Professor David Greenberg for the Crown on 22 December 2010 and again on 19 October 2011. Professor Greenberg had previously examined the Accused on both 27 July 2002 and 21 November 2002 at the Long Bay Prison Complex when he provided a psychiatric report for a magistrate at Wyong Local Court. 19In his first report for the purpose of this present enquiry Professor Greenberg helpfully extracted portions of his 2002 reports. Those reports provide useful background, and clearly show that in 2002 the Accused was diagnosed with chronic schizophrenic disorder and poly-substance abuse. He was found in 2002 to suffer from personality problems and was assessed to be borderline to dull/normal intelligence. 20In those 2002 reports Professor Greenberg noted that the Accused told him that he had been abusing cannabis since the age of 16 years and had experimented with amphetamines and heroin. As a younger child he had experimented with inhalants such as sniffing petrol. At that time he denied any alcohol abuse. That denial cannot be accepted given information in other reports. 21Professor Greenberg noted in 2002 that the Accused had a history of chronic schizophrenia dating back to 1986. There had by 2002 been multiple admissions to psychiatric units as well as a number of attendances at out-patients departments of various hospitals in the Central Coast and Newcastle areas. 22At the time of Professor Greenberg's examination in December 2010 the Accused was scheduled under the Mental Health Act 2007 and was being detained at G Ward at Long Bay Prison Hospital. He was then refusing his oral anti-psychotic medication. He was overtly psychotic and formally thought-disordered. Professor Greenberg said he was unable to complete a comprehensive psychiatric assessment because of this disordered mental state. The Accused was rambling and incoherent. He could not respond to questions in a meaningful manner and he laughed inappropriately to himself. 23Professor Greenberg assessed the Accused with regard to the legal test earlier referred to from R v Presser and Kesavarajah v R. Professor Greenberg said: I assessed Mr Newbury with regard to Presse r (1958) VR 45 at 48 and Keseavarajah vs R (1994) 123 ALR 463 criteria. Mr Newbury has no understanding [of] the nature of the charges he is currently facing. When asked about how he planned to plead to the charge, he answered in a rambling incoherent response. His mood was labile and irritable. He laughed inappropriately to himself. He did not understand his right to challenge the jurors. I am of the view that he would not understand the general nature of the proceedings that it is an inquiry into the veracity of allegations against him. Because of his current persistent psychotic illness and the lability of his mood, Mr Newbury is currently unable to understand the nature of the proceedings at this time. I am of the view that he would not understand the course of the proceedings and the functions of the officers in court. I asked him about the role of his legal representative and he was unable to make an understandable response. When asked about the role of the Judge, the role of the jury, [how] many jurors there were and how they were selected, his responses were incoherent and thought disordered. At this time, given his acute psychotic state and impaired cognition, I am of the opinion that he would have difficulty appreciating the substantial effect of the evidence. At this time I am of the view that he cannot decide on what defence he should make and even with counsel he cannot at this time instruct his counsel and communicate his version of the facts. I am also of the view that he would be unable to give evidence given his current mental state. Mr Newbury suffers from a chronic severe psychotic mental illness and remains psychotic at this time. I am therefore of the view that on the balance of probability Mr Newbury is currently unfit to stand trial at this time. 24When Professor Greenberg came to examine the Accused on 19 October 2011 he had available further material including medical records from Central Coast Medical Services. This material discloses two things that should be noted. The first concerned alcohol abuse by the Accused on a number of occasions resulting in him being taken to Gosford Hospital by the police. Secondly, the records from Gosford and Wyong Hospitals disclosed that from time to time he experienced hallucinations. 25At his examination on 19 October 2011 Professor Greenberg was able to engage the Accused to some extent about the offence charged. The account the Accused gave, however, was not a coherent account of himself during the time period surrounding the alleged offence. He gave inconsistent answers saying at one point that he had not stabbed the Deceased, but at a later point saying that he had stabbed him to defend himself and his family. When asked about the knife used to stab the victim the Accused said he had never had a knife. When asked who the Accused thought had stabbed the Deceased he said that no one had. 26Professor Greenberg again assessed him in accordance with the appropriate legal test. He reported as follows about that: Mr Newbury understood the nature of the charges he is presently facing. He did not understand the defence of mental illness, stating that he was "Section 32". He did however, in rudimentary terms, understand the difference between a guilty and not guilty plea. He understood that his lawyer represented him but when asked about the role of the Crown, he stated "a lady" then paused; he then mumbled incoherently to himself. He did not understand the role of the Judge or jury. He did understand that he was the Accused and that witnesses give "information". I asked about the purpose of attending his current Court case and he stated that he was "not murder" and that he was "not manslaughter". He did not understand the role of the jury or his right to challenge the jurors. When asked about the nature of an oath, he stated, "A Bible put in my hand on the Bible and swear no murder and no manslaughter". He did not understand the concept of perjury even after I explained the concept in rudimentary terms. As stated, Mr Newbury could not give his version of the facts. In my opinion he would not able to give instructions or give evidence in Court at the current time. In my opinion Mr Newbury would not understand the substantial effect of evidence given in Court. Mr Newbury suffers from a chronic severe schizophrenic mental illness and remains impaired in his capacity to understand the various Presser criteria at this time. I am therefore of the view that on the balance of probability Mr Newbury is currently unfit to plead or stand trial at this time. 27Dr Nielssen interviewed the Accused on August 2011 at the behest of Legal Aid. 28Dr Nielssen was able to engage to a limited extent with the Accused about the circumstances of the Deceased's death. However, the answers provided by the Accused would have to be regarded as delusional. He said he intended to enter a plea of not guilty on the grounds that he was acting in self defence and also because the Deceased did not die in the house as alleged. Rather, he said, the Deceased was "shot in the heart" in Wing 13 of the Metropolitan Reception and Remand Centre. He said there were no fingerprints or other evidence to show he had caused the Deceased's death, and he denied having blood on his clothes at the time of his arrest. 29Dr Nielssen had a similar difficulty to Professor Greenberg when interviewing the Accused because of what he described as a significant speech impediment that appeared to be of neurological origin, as well as the effects of an underlying schizophrenic illness which affected the Accused's capacity to communicate in a coherent or rational way. Indeed, before Dr Nielssen had finished asking what he wished to ask the Accused terminated the interview. 30Fortunately, however, Dr Nielssen had assessed him at that stage by reference to the appropriate legal test. In that regard Dr Nielssen reported as follows: When taken to his understanding of the charges and the procedure followed in courts Mr Newbury said that he had some previous experience of going to court, but said that he had not been in prison since a period of between three and six months on remand in 1986. He was able to name the charge as murder, but was unclear as to how he would plead, because he initially said self defence, but then said that he did not cause his death and later agreed that he would raise his mental illness in his defence. He was able to name his solicitor, but did not know if a barrister had been appointed in his case. He said that a prosecutor "says you're guilty" and said that a judge "hears the case ... if the jury says not guilty or self defence he lets you go". He said that he thought a jury had ten or twelve people who he said were taken "nationwide from various spots ... the Governor of the gaol can pick them". When asked about the role of a witness he said "he or she says what they know" and that an oath was "to say on the Bible not guilty". He said that he did not know about his right to challenge jurors who might be against him, although he said "it was never discussed". 31Dr Nielssen's conclusion about his fitness for trial was this: Mr Newbury was assessed to be unfit for trial because he is unable to provide rational or reliable instructions over the course of the proceedings. Moreover, his instructions that he was acting in self-defence appears to be based on a bizarre delusional belief. There is some chance that he will become fit for trial within the next twelve months if he were to receive treatment with treatment with an adequate dose of clozapine, although he has been receiving psychiatric care in a hospital setting for the best part of a year and remains quite unwell. 32A report prepared for the Mental Health Review Tribunal by Dr Eugene Ho, a Psychiatric Registrar was also made available to me. Dr Ho's report was based on interviews with the Accused and a perusal of various records. That report merely confirms the diagnosis of schizophrenia and poly-substance abuse. Dr Ho was of the opinion when he examined the Accused on 21 October 2011 that he remained a mentally ill person as defined by the Mental Health Act 2007. 33I also received an affidavit from the Accused's solicitor, Ms Amanda Coultas-Roberts. She has been practising in criminal law for over 20 years and she has acted for the Accused since June 2011. She has visited him a number of times. On these occasions she has found him very difficult to understand because of his significant speech impediment. She said that he seemed to understand that he had been charged with the murder but he also expressed the belief he had imparted to Dr Nielssen that the Deceased was shot in gaol and he, the Accused, was being set up. 34When Ms Coultas-Roberts last saw him on 11 January 2011 she went through the very basics of the Crown case against him. She said that his responses indicated to her that he did not have the ability to understand in any meaningful way the Crown case or respond to it. 35She said that his attention span was always extremely short and on that occasion, as on all previous occasions, he quickly decided it was time to leave the interview room before the conclusion of the interview. Conclusion 36In forming my opinion and making my determination on the question of the fitness of the Accused I have had regard to the principles in R v Presser and the other cases to which I have referred. In the light of the opinions expressed concerning the Accused by Dr Nielssen and Professor Greenberg following their examinations of him, and assisted also by the observations and opinion of Ms Coultas-Roberts, I find on the balance of probabilities that the Accused is unfit to be tried for the offence with which he stands charged. 37In those circumstances I make the following orders: 1. I find that the Accused Wayne Patrick Newbury is unfit to be tried for the offence of the murder of Ross Andrew Tekampe on 3 August 2010. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s 16 of that Act. 4. I direct the Court Registry to provide the following documentation to the Tribunal: (a) A copy of this finding. (b) A copy of any orders made for detention or bail. (c) A transcript of these proceedings. d) A copy of any psychiatric reports tendered to the Court during these proceedings. (e) A copy of any additional reports tendered as evidence to the Court pertaining to the person's fitness to stand trial, and (f) The Crown Case Statement. ********** 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: 09 March 2012