Supreme Court New South Wales Medium Neutral Citation: R v WOTHERSPOON, Anne Maree [2012] NSWSC 1641 Hearing dates: 27 August 2012 Decision date: 27 August 2012 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Accused found unfit to be tried Catchwords: CRIMINAL LAW - murder, robbery in company - fitness of accused to be tried - no question of principle Legislation Cited: Mental Health Forensic Provisions Act 1990 Category: Principal judgment Parties: Regina (Crown) Anne Maree Wotherspoon (accused) Representation: Counsel: L Lungo (Crown) P D Rosser QC (accused) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) S E O'Connor - Legal Aid Commission (accused) File Number(s): 2011/68636 Judgment 1HIS HONOUR: The accused, Ms Anne Wotherspoon, is charged with murder and with robbery in company. It is unnecessary to examine the Crown case. It is sufficient to say that she is alleged to have been a party to a joint criminal enterprise to rob the deceased in the course of which the deceased met her death. The issue of her fitness to be tried is before me and the resolution of that issue appears to be clear. I have reports from two respected forensic psychiatrists, Professor David Greenberg, engaged by the Crown, and Dr Richard Furst, engaged by the defence. 2What emerges from those reports is that the accused has a history of mental illness, described by Dr Furst as treatment resistant schizophrenia. That history is well documented in the reports. Both doctors interviewed the accused on two occasions and on each of those occasions each doctor observed her to be exhibiting psychotic symptoms, describing bizarre and disturbing delusions. It does seem that such medication as she has been persuaded to take has only to a limited extent relieved her condition. 3On both occasions each doctor found her to be unfit to be tried, giving their reasons at some length in their reports. It is sufficient for present purposes to extract the relevant portions of their recent reports, which are to much the same effect as their earlier reports. Professor Greenberg saw the accused on the second occasion on 18 August this year and provided a report on 19 August. On the question of fitness to be tried he reported the following: "I assessed Ms Wotherspoon with regard to Presser (1958) VR 45 at 48 and Keseavarajah vs R (1994) 123 ALR 463 criteria. Ms Wotherspoon understood in rudimentary terms the nature of the charges. She was unable to understand the available pleads (sic) to her at this time. She did not understand what guilty or not guilty meant. She did not understand the consequence of such pleads. She did not understand the nature of an oath or the consequences of perjury. With regard to the roles of the functions of the various officers in the Court, she stated that her lawyer helped her and he tells the truth. She stated that her lawyer is Mark Mansell who works for Legal Aid in Newcastle. She did not understand the role of the prosecutor. She stated that the Judge sentences people but did not fully understand the role of the Judge. She did not understand the role of a jury; how many members sat on a jury or how they were selected. She understood that she was the accused. She stated that a witness tells the truth 'about anything to Judge'. Ms Wotherspoon did not understand the purpose of the future Court hearings. She stated that 'they' wanted her in gaol and would lock her up forever. I am of the opinion that Ms Wotherspoon could not appreciate the substantial affect of evidence given in Court at this time because of her acute psychotic mental illness. I am of the opinion that Ms Wotherspoon would be unable to instruct legal counsel at this time because of the current nature of her severe mental illness. I am therefore of the opinion that on balance Ms Wotherspoon is currently unfit to plead and unfit to stand trial." 4Dr Furst in his most recent report was of the same view. He had been treating the accused over a period of time, I should add. He saw the accused for the second time quite recently, on 22 August, and provided a report of 24 August. He expressed his view in this way: "Ms Wotherspoon has limited appreciation of her legal situation, mental illness and the role of the Court. She has features of a chronic treatment resistant schizophrenic illness and remains a mentally ill person in the acute setting of the Long Bay Hospital. It appears that her progress over the last 10 months has been very limited, with no real resolution of her acute delusions and auditory hallucinations. She would probably struggle to work with her legal counsel, pay attention to what is said in Court, and give coherent instructions. Her capacity to make out her defence in Court, if any, would be impaired by delusions about the 'Mafia' and various other paranoid themes. I remain of the opinion that Ms Wotherspoon would struggle to participate in a trial in a meaningful sense because of the severity of her psychotic illness, her ongoing paranoid delusions and her tendency to incorporate her legal regenerative (sic "representative") and various other legal actors in the court into her delusional system Having regard to the standards of Presser (1958) VR 45 and Kesavarajah (1994) 74 A Crim R 100, I was of the opinion that Ms Wotherspoon remains unfit to be tried. Given her limited progress over the last 15 months at the Long Bay Hospital and the chronicity of her schizophrenic illness, it is unlikely that she will become fit to be tried in the next 12 months." 5I should add that Ms Wotherspoon has the benefit of being represented by very experienced senior counsel, Mr Rosser QC. He told me from the Bar table that he and his instructing solicitor have faced the very difficulties of which the psychiatrists speak. To put it shortly, he said that they were unable to obtain rational instructions from the accused in preparation for her trial. It is abundantly clear that she is unfit to be tried, and I so find. My formal orders are these: 6I find the accused unfit to be tried. In accordance with section 14 (a) of the Mental Health Forensic Provisions Act 1990, I refer the matter to the Mental Health Review Tribunal. In accordance with section 14 (b) (iii) of the Act, I remand the accused in custody until the determination of the Mental Health Review Tribunal pursuant to section 16 of the Act. 7I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within 14 days: (a)a copy of my finding and reasons; (b)a copy of the orders I made; (c)a copy of the transcript of proceedings; (d)copies of the psychiatric reports; and (e)a copy of 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: 22 February 2013