District Court New South Wales Medium Neutral Citation: R v WYSE [2011] NSWDC 241 Hearing dates: 30 November 2011 Decision date: 30 November 2011 Before: Berman SC DCJ Decision: Not guilty on the grounds of mental illness. Mr Wyse is conditionally released from Court. Catchwords: CRIMINAL LAW - Special Hearing - Significantly mentally unwell at time of offending - Possess illegal drugs - Supply illegal drugs - Possess pen pistol - Consequential orders Legislation Cited: Mental Health (Forensic Provisions) Act Category: Principal judgment Parties: The Crown Timothy Anthony Wyse Representation: Mr L Lungo - Crown Ms T Evers - Offender The Director of Public Prosecutions Legal Aid Commission - Offender File Number(s): 2009/6529 Judgment 1HIS HONOUR: On 5 June 2008 a number of police went to the premises of Timothy Andrew Wyse. They were armed with a search warrant. After some delay they managed to gain access to Mr Wyse's premises. He was inside. As police went in he began yelling and flailing his arms around. One of the police officers, Detective Beakman, attempted to restrain him, but through thrashing his arms around Mr Wyse committed an assault on the detective. Mr Wyse was eventually handcuffed and the search of his premises could commence. 2What police discovered was an enormous and varied quantity of drugs, and drug paraphernalia. It is accepted by Ms Evers, who appears for Mr Wyse today, that due to his possession of various drugs, and his possession of what is described as a pen pistol, Mr Wyse has committed offences, ignoring for the moment any issue regarding his mental illness, as set out in the indictment presented this morning. In other words it is conceded that what police found during their search established all of the offences. It is not necessary therefore for me to go through what police have found in great detail, beyond noting that the brief of evidence tendered today by the Crown establishes the accuracy of Ms Evers' concession. 3It became apparent at an early stage in the police investigation that there were at least suspicions that Mr Wyse was mentally unwell. A barrister, Mr Attard, who attended to assist Mr Wyse, informed police that it was his opinion that Mr Wyse was mentally unwell. Then conversations that the officer-in-charge, Detective Sergeant Mullaley, had with Mr Wyse also led the police officer to the same view. 4After he was charged enquiries were made as to his fitness to stand trial. Both Dr Allnutt and Dr Nielssen, highly experienced forensic psychiatrists, formed the view that he was not fit to stand trial. I will return to their diagnoses later. 5A hearing into the accused's fitness was heard under s 10 of the Mental Health (Forensic Provisions) Act, and the judge hearing that matter determined that Mr Wyse was not fit to stand trial. Accordingly he was referred to the Mental Health Review Tribunal, who themselves determined, on 24 August last year, that he was unlikely to become fit to be tried within the next twelve months. That meant that a Special Hearing needed to be held in order to determine whether, on the limited evidence available, Mr Wyse committed the offences with which he had been charged. It is that hearing that began before me this morning. 6It began with the presentation by the Crown of the indictment. The allegations were read to Mr Wyse by my associate, but, in accordance with the provisions of the Mental Health (Forensic Provisions) Act, he was not asked whether he pleaded guilty or not guilty to them, instead it was taken that he had pleaded not guilty. The Crown then tendered a folder of material containing a number of statements by police, and copies of items found in Mr Wyse's premises on 5 June, as well as reports from Drs Nielssen and Allnutt. That was the Crown case. 7Ms Evers then tendered on behalf of her client a short report from Dr Elsa Bernardi, a report from a registered nurse, and some progress notes. It is the common view of all of those who have examined Mr Wyse that he was, at the time of these offences, that is 5 June 2008, significantly mentally unwell. And it is further the view of Drs Allnutt and Nielssen that because of that illness, on the balance of probabilities, he was unable to appreciate the wrongfulness of his conduct. They therefore expressed the opinion that Mr Wyse should be found not guilty on the grounds of mental illness in relation to each of the charges now before me. Both Mr Crown and Ms Evers say that I should accept the opinions of those doctors. I will do so, but not before indicating that this has not been a decision that I have made simply by accepting the views of these highly qualified and experienced psychiatrists. 8It is not at all apparent that the doctors were made fully aware as to the circumstances surrounding what police found when they entered Mr Wyse's unit. Their opinions would have been much easier to accept if I were satisfied that they received the same material that I had. For example, the Crown tendered, and then later indicated that this was a mistake, some documents that had been found by police which at least raised questions as to Mr Wyse's understanding of what he was doing. It does not appear that those documents were provided to the doctors. What they were given appears to have been a statement of facts prepared by police at a very early stage of the investigation. 9Of course the question as to whether a person understood that what he or she was doing was morally wrong is to be looked at after paying close attention to what they actually did, and it is not at all apparent to me that the doctors were provided with information that would have allowed them to pay that close attention. For example - this is a matter that is referred to in the statement of facts provided to the doctor - Mr Wyse, or at least someone involved with him, had secreted a number of drugs in false compartments in the back of three paintings found in Mr Wyse's home. Of course he may well have understood that it was legally wrong to possess those drugs, but not have believed that it was morally wrong to do so. But I, for one, would have been happier if the doctors had addressed in more detail the consequences of findings such as those made by police. 10As I said earlier, it is undeniable that Mr Wyse was significantly mentally unwell. By the time police turned up on 5 June he had been admitted for psychiatric treatment on a number of earlier occasions. He has expressed the view that he has had a chip placed in his head, and although he denies other common symptoms of schizophrenia, such as hearing voices, it is clear that he was at the time delusional to a high degree. 11When Dr Nielssen saw Mr Wyse in late 2008, reasonably soon after he was arrested in June, Dr Nielssen reviewed the material provided to him which suggests a history of disturbed and delusional behaviour, a history of treatment for that, and interviewed Mr Wyse, but was unable to obtain any coherent explanation as to what Mr Wyse was up to. 12Dr Nielssen formed the view that: "Mr Wyse had a relapsing psychotic illness that is either schizophrenia, or a schizo-effective disorder." 13 He says: "The diagnosis is made on the basis of the corroborative accounts of symptoms that were present at the time of the previous acute episodes, the content of Mr Wyse's letters, and his presentation at the recent interview. The presence of bizarre beliefs, such as the insertion of a microchip in the brain, are typical of schizophrenia rather than a transient drug induced state. Mr Wyse also seemed abnormally elevated in mood, especially during the initial interview, when he seemed indifferent to his circumstances, and was pre-occupied with a number of unrealistic plans." 14Dr Nielssen went on to express the opinion that at the time of the events that led to the charges he was facing: "He was in the acute phase of mental illness". although he was able to carry out day to day activities. 15He said it: "would have been readily apparent that Mr Wyse was in the acute phase of mental illness, and that his activities were motivated by unrealistic thinking arising from his illness, therefore -" and this is of course relevant to the ultimate view that I take on this matter - Dr Nielssen said: "Hence I believe Mr Wyse would be able to raise the defence of mental illness to the charges as his mental illness gave rise to a defect of reason that deprived him of the ability to recognise that his behaviour was wrong." 16As I mentioned, that was the opinion expressed by Dr Nielssen soon after seeing Mr Wyse in late 2008. Dr Nielssen has provided further reports, but his opinion has not changed. 17What has happened, as Dr Nielssen reports, is that as a result of consistent treatment Mr Wyse's psychotic illness is now in remission. However, of course, that does not affect the situation that Mr Wyse was in at the time of the charges. Dr Nielssen confirmed his earlier opinion that Mr Wyse would have the defence of mental illness open to him: "Because of the effect of ideas arising from acute exacerbation of a chronic mental illness on his behaviour, and the gross impairment in his capacity to recognise the moral, and even the legal, consequences of his actions while he was acutely mentally ill." 18Whilst I may have had some doubts as to whether I could accept Dr Nielssen's opinion concerning Mr Wyse's belief in the legal consequences of actions, it is of course relevant to the test that I have to apply that his illness affected his capacity to recognise the moral consequences, and as I have repeatedly said, there is a unanimous view before me that that impairment was significant to the extent that Mr Wyse has the defence of mental illness available to him. 19I mentioned before that Mr Wyse had also been assessed by Dr Allnutt. His opinion is similar. He says that: "Mr Wyse manifests symptoms consistent with schizophrenia currently characterised by language difficulties, formal thought disorder, delusions of grandeur, as well as persecutory beliefs that have impacted on his social and psychological functioning over the years. He has a history of admissions to psychiatric hospitals and trials of anti-psychotic medication." 20Although in that report, which was dated 11 October 2009, Dr Allnutt did not express a view as to the mental illness defence, he did in a later report, when asked to by the DPP. He said: "I am of the view that having regard to the account that he provided me at that stage--" 21That is when he saw him earlier: "That his mental state at the material time of the alleged offence was such that he manifested to me on 1 October 2009--" 22Which I believe is highly probable: "Then he would be regarded as suffering from a disease of the mind, and in my view would probably have been unable to know the nature and quality of his actions, but more definitely would have been incapable of reasoning about the wrongfulness of his actions with a moderate degree of sense and composure." 23It is to be noted there that Dr Allnutt went further than Dr Nielssen, and expressed the view that he would probably have been unable to know the nature and quality of his actions. 24Whether I would have accepted that expression of opinion does not need to be determined, but before I could have done so comfortably I would have liked to have known, and been satisfied, that Dr Allnutt was made fully aware of the surrounding circumstances of Mr Wyse's conduct. The reason, of course, that I do not have to determine that matter is because I am satisfied, on the balance of probabilities, that I should accept the second limb of Dr Allnutt's opinion, that concerned with Mr Wyse's appreciation of the wrongfulness of his actions. 25Before I leave the evidence of the psychiatrists I should refer to the documents tendered by Ms Evers. They concern mainly the significant improvement in Mr Wyse's mental state since he resumed treatment. He is now regularly treated with clozapine, and has improved significantly as a result. It is pleasing to see that Mr Wyse has also been compliant with his treatment. Of course the fact that there is a significant difference between Mr Wyse's mental state now that he is treated, and his mental state in June 2008 when he was not being treated, suggests that in a significant way that his activities arose from his mental illness. 26As I mentioned earlier in this judgment, I am satisfied that Mr Wyse was in possession of the various items referred to in counts 1 to 13 of the indictment. Some of the charges on the indictment relate to possession, for example, counts 1, 4 and 13, but I am satisfied that so far as the prosecution needs to also prove a mental element for those counts that it is established that Mr Wyse had the relevant intention. Of course the majority of the charges relate to supply rather than possession, but in circumstances where the onus shifts to the accused to satisfy me on the balance of probabilities that he had the drugs in his possession other than for the purpose of supply, and in circumstances where there has been no attempt by Mr Wyse to overcome that onus, I am also satisfied therefore that Mr Wyse has committed those offences of supplying, which appear on the indictment. 27Finally, as I began these remarks, I am satisfied that his conduct when police first entered the premises amounted to an assault of Detective Senior Constable Beakman, and that it was Mr Wyse's intention to prevent himself being lawfully apprehended. Ordinarily that would result in me making a finding that Mr Wyse was guilty of each of the fourteen counts on the indictment, but consistent with the undisputed reports of the forensic psychiatrists, and consistent with the joint approach of both the prosecution and Ms Evers, for the reasons I have already indicated, I find Mr Wyse not guilty on the grounds of mental illness on each of the fourteen counts on the indictment. ORDERS 28Having found Mr Wyse not guilty on the grounds of mental illness, attention turned to the consequential orders that should be made. Under s 39(2) of the Mental Health (Forensic Provisions) Act I am not to make an order releasing Mr Wyse from custody unless I am satisfied on the balance of probabilities that his safety, as well as the safety of any member of the public, would not be seriously endangered by him being released. 29For reasons which I gave earlier, Mr Wyse's mental state has improved significantly since his arrest. His most recent risk assessment conducted, we believe, on 18 May 2011, indicates that a psychiatric nurse, Adrian Frances, notes that, "Mr Wyse is compliant will all aspects of his treatment". The only possible matter of concern could be his current delusional beliefs. Mr Frances records some distress concerning these court proceedings, and in particular he notes, "Past twelve months no aggression of any type". 30The report of Dr Bernardi notes: "Mr Wyse is currently on bail where he has been since 5 February 2009, and is being managed in the community whilst living with his mother." 31There is no suggestion since Mr Wyse's release to bail he has caused any problems at all to the community, and so I have no hesitation at all in finding, on the balance of probabilities, that his safety, and the members of the public safety, will not be endangered seriously by his release, accordingly I make the following orders. (1)That Timothy Wyse be conditionally released from the Court subject to the following conditions: (a)That he attend the Mental Health Review Tribunal at Gladesville, or any other location as directed by the Mental Health Review Tribunal, as required by that Tribunal. (b)He live with his mother Anne Camden at (an address provided to the Court), or any other location as directed by the Tribunal. (c)He be of good behaviour. (d)He obey all directions of the Tribunal. (e)He attend the North Sydney Local Health District Community Health Centre monthly, or as directed by them, or the Tribunal. (f)He attend Dr Bernardi as required by her, or by the Tribunal. (g)He take all medication prescribed by Dr Bernardi, her delegate, or any person appointed by the Tribunal. (2)The Registrar of this Court is to notify the Minister for Health, and the Tribunal of the terms of this order. ********** 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: 01 August 2012