Supreme Court New South Wales Medium Neutral Citation: R v Wilson [2012] NSWSC 1247 Hearing dates: 15 October 2012 Decision date: 15 October 2012 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: 1. Mr Wilson is unfit to be tried. 2. Mr Wilson is referred to the Mental Health Review Tribunal. 3. These proceedings are adjourned pending the Tribunal's determination under s16 of the Act. 4. Mr Wilson is remanded in custody until the determination of the Tribunal has been given effect. Catchwords: CRIMINAL LAW - fitness to plead - murder - accused no longer fit to be tried - orders Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina (Crown) Joseph Rohan Wilson (Accused) Representation: Counsel: Mr P Cattini Mr M Dennis Solicitors: Director of Public Prosecutions (Crown) Nyman Gibson Stewart (Accused) File Number(s): 2009/262146 Publication restriction: None Judgment 1The matter is in the list today for hearing. As yet the jury has not been empanelled. Mr Wilson has pleaded not guilty to the murder of Scott Daniel Bryan on 24 November 2008 at Currowan. When the hearing commenced Mr Dennis, counsel appearing for Mr Wilson, indicated that Mr Wilson had instructed that he wished to proceed today. 2The question of his fitness to be tried was, however, raised by the Crown, in circumstances where Mr Wilson has previously been assessed as fit to be tried, but where recently, upon further assessment by Dr Nielssen, one of the psychiatrists who have previously assessed Mr Wilson, Dr Nielssen formed the view that he was not fit to be tried. 3In those circumstances there was no issue between the parties that under s 9 of the Mental Health (Forensic Provisions) Act 1990, the Court was obliged to conduct an inquiry into Mr Wilson's fitness to be tried. It was also common ground that the parties were in a position where that inquiry could be conducted forthwith. 4Under s 6 of the Act, the question of Mr Wilson's fitness is to be determined on the balance of probabilities. Under s 15 there is a presumption that Mr Wilson, who earlier in these proceedings was found to be fit to be tried, remains fit until the contrary is established. In the circumstances before the Court, there is no question that the issue of Mr Wilson's fitness to be tried has been raised by the Crown in good faith, (see s 10). 5The background to the question of Mr Wilson's fitness is as follows. Firstly, in a judgment given by her Honour Justice Latham on 2 April 2012, her Honour recounted that prior to arraignment, the question of Mr Wilson's fitness to plead arose, with the result that inquiry in relation into the question of his fitness was listed before her Honour on 15 November, 2011. On that day the Court received a report from Professor Greenberg, a criminal history, a custodial history, a letter written by the accused to the magistrate, a report from a Dr Samuel and a Crown case statement on the evidence. A report from Dr Nielssen was also then tendered. Both Dr Nielssen and Professor Greenberg were then of the view that Mr Wilson was unfit to be tried. He was then undergoing involuntary treatment in hospital and was required to appear before the Mental Health Review Tribunal in August. 6By April 2012, he was in a position where he had been taking medication which had largely resolved his outstanding mental illness issues. The proceedings were stood over in November to February, 2012 with a recommendation that Mr Wilson continue receiving treatment at Long Bay Hospital. It was then anticipated that his compliance with his medication would bring about a change in his status. The hearing in February was adjourned to April, because of the unavailability then of further reports. 7In April, before her Honour were further reports of Professor Greenberg and Dr Nielssen, the combination of which disclosed that Mr Wilson was then fit to be tried. In those circumstances there no longer being any issue as between the parties as to that question, her Honour stood the matter over to the arraignments list on 5 April for the purpose of fixing a trial date. It was on 4 May 2012, that Mr Wilson entered a plea of not guilty. 8The various reports to which her Honour Justice Latham referred were in evidence today, as well as a further report of Dr Nielssen. The first of those reports was a report of 30 June 2011 in which Dr Nielssen outlined a history which he had received from Mr Wilson, which included an indication of his intention, even at that stage, to plead not guilty to all of the charges which he faced, on the basis that he had not committed the murder of Mr Bryan and knew nothing about it. 9The history also included an account from Mr Wilson that he had never been mentally ill and that his only condition was diabetes. Dr Nielssen also, however, referred to a psychiatric history which commenced with treatment which Mr Wilson received from the age of six years. Dr Nielssen also referred to a substantial history of cannabis abuse, from before the age of 10 years. 10Dr Nielssen reviewed Mr Wilson's medical history, which referred to treatment for psychosis in 1999; treatment with anti psychotic medication from 2001; treatment under the Mental Health Act from 2004; a history of partial adherence to treatment; and grandiose and persecutory delusional beliefs; as well as threats and acts of violence; with partial stability finally achieved. Dr Nielssen was then of the opinion that a diagnosis of schizophrenia should be made, that illness having been under-treated. He also diagnosed a substance abuse disorder and came to the conclusion that Mr Wilson was then unfit for trial. 11There was then a report of Professor Greenberg of August 2011, where Mr Wilson gave a similar history, together with an account of sexual abuse as a child, as well as a history of primary and paranoid delusions about his anti-psychotic medication. Professor Greenberg diagnosed schizophrenia with chronic treatment resistant delusions and cannabis abuse/dependence. 12 Professor Greenberg was of the opinion that Mr Wilson had no insight into his mental illness and the need for psychiatric medication and was also of the opinion that Mr Wilson was then unfit to plead or stand trial. 13That position changed, as her Honour noted in her judgment of April 2012, with Dr Nielssen, for example, in a report of March 2012, expressing the opinion that Mr Wilson's psychiatric illness had made a partial response to treatment, with a relatively high dose of anti-psychotic medication. The result was that he then appeared to recognise that he had been unwell and needed to continue treatment, although he appeared to be ambivalent about treatment. Dr Nielssen observed that his adherence to medication needed supervision. In the circumstances, Dr Nielssen was then of the opinion that, on balance, Mr Wilson was fit to stand trial. 14In Dr Nielssen's recent October 2012 report, after further interview, Dr Nielssen recorded that it was apparent that Mr Wilson was affected by an exacerbation of his chronic psychiatric illness, because it emerged that he had stopped taking anti-psychotic medication, some months ago. Dr Nielssen was of the opinion that since assessment in March, Mr Wilson had experienced an exacerbation of his chronic schizophrenic illness as a result of stopping treatment with anti-psychotic medication. In the result, he no longer had insight regarding the nature of his illness; the symptoms of his illness; or the need for treatment. Dr Nielssen was then of the opinion that Mr Wilson had become unfit for trial. 15Dr Nielssen said that Mr Wilson was aware of the charges; that he indicated that he intended to plead not guilty; and that he had a general understanding of the nature of a trial and the procedures followed in an adversarial trial. However, his interpretation of developments in the case were likely to be affected by his wide ranging delusional system, which has extended to involve his current legal representatives. He had unrealistic beliefs, which appear to stem from delusions which affect his ability to provide reliable instructions. 16Dr Nielssen concluded that Mr Wilson has a condition that has been shown to respond to moderate doses of anti-psychotic medication. Dr Nielssen believed that he would again respond to treatment with anti psychotic medication and become fit for trial after several months of treatment. 17The principles that apply in determining an accused's fitness to stand trial are well settled, having been explained in R v Presser [1958] VR 45 at 48 where Smith J said: "[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able 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 the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have 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, if any." 18In this case, having in mind all of the evidence, I am satisfied that it must be concluded that Mr Wilson is presently unfit to be tried for the offence to which he has entered a plea, notwithstanding his instructions today to his counsel, that he wishes to proceed with the hearing. 19Given Dr Nielssen's revised opinion, which the Crown does not challenge Mr Wilson's history and the history of these proceedings, the earlier finding that Mr Wilson was fit to be tried must be departed from. On the evidence there can be no question of his changed circumstances, the result, it appears, of him having become non-compliant with the treatment to which he earlier responded. 20I find that Mr Wilson is no longer fit to be tried. In the result, and for these reasons, the following orders must be made: 1. Mr Wilson is referred to the Mental Health Review Tribunal. 2. These proceedings are adjourned pending the Tribunal's determination under s16 of the Act. 3. Mr Wilson is remanded in custody until the determination of the Tribunal has been given effect. ********** 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: 17 October 2012