Supreme Court New South Wales Medium Neutral Citation: R v Wilson (No. 2) [2013] NSWSC 1288 Hearing dates: 19 August 2013, 9 September 2013 Decision date: 09 September 2013 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1. Accused is unfit to be tried. 2. Direct that a special hearing be conducted in accordance with s.30(2)(a) Mental Health (Forensic Provisions) Act 1990 Catchwords: CRIMINAL LAW - Accused charged with murder and other offences - earlier finding of unfitness to be tried - referral to Mental Health Review Tribunal - Tribunal determines that Accused fit to be tried - referral back to Court - inquiry under s.29 Mental Health (Forensic Provisions) Act 1990 - Accused unfit to be tried - Accused had been detained as inmate or forensic patient for more than 12 months - direction that special hearing proceed under s.30(2)(a) of the Act Legislation Cited: Crimes (Administration of Sentences) Act 1999 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R [1994] HCA 41; 181 CLR 230 R v Presser (1958) VR 45 R v Wilson (No 1) [2013] NSWSC 1146 Texts Cited: --- Category: Principal judgment Parties: Regina (Crown) Joseph Rowan Wilson (Accused) Representation: Counsel: Mr LL Lungo (Crown) Mr MG Ainsworth; Ms JA Wright (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Bayside Lawyers (Accused) File Number(s): 2009/262146 Publication restriction: --- Judgment (On FITNESS TO BE TRIED - T20) 1JOHNSON J: On 19 August 2013, I embarked upon an inquiry into the fitness of Joseph Rowan Wilson to be tried on charges of murder, solicit to murder and commit act intending to cause a person to give false evidence. The inquiry was adjourned in circumstances described in my judgment, R v Wilson (No 1) [2013] NSWSC 1146. The earlier judgment ought be read in conjunction with the present reasons. 2Since the inquiry commenced on 19 August 2013, Professor David Greenberg has again examined Mr Wilson. A report of Professor Greenberg of 5 September 2013 is in evidence before me. Professor Greenberg has examined Mr Wilson on a number of earlier occasions, and his most recent report helpfully outlines the history with respect to Mr Wilson since he was first charged with the present matters in November 2009. 3There is, within Professor Greenberg's report of 5 September 2013, a section containing a detailed opinion concerning the current fitness of Mr Wilson to be tried (Exhibit C, pages 6-7): "FITNESS TO PLEAD AND STAND TRIAL I assessed Mr Wilson with regard to Presser (1958) VR 45 at 48 and Kesavarajah vs R (1994) 123 ALR 463 criteria. Mr Wilson understands the nature of charges he is currently facing. He understands the various pleas that are available to him. He understands the difference between a guilty and a not guilty plea and in rudimentary terms the possible consequences or outcomes of these pleas. He understands the nature of an oath and the consequences of perjury. He generally understands the nature of the proceedings, that it is an enquiry into the veracity of allegations against him. He generally cognitively understands the course of proceedings and the functions of officers in Court. However, when asked about his Barrister, he claimed that his Barrister had been sacked because he was part of the 'commie murders'. He understood the role of the various other stake holders in Court, including the Judge, witnesses and the prosecutor. He understood that he was the accused. He understood the nature of a jury; how many members of a jury, how they were selected and his right to challenge the jurors. I am of the opinion that Mr Wilson would have difficulty appreciating the substantial effect of evidence given in Court given his acute paranoid psychotic symptoms including bizarre somatic and paranoid delusional beliefs. Also at times his thoughts were disjointed and his various delusional beliefs appear to be intertwined with his understanding of his cognitive reality. He claimed that his solicitor, Jennifer Powell, and he went to TAFE together; they had done a course in dairy farming. He then stated that if someone wanted to clean up your house and if you had never seen them before, would you let them in? He ruminated about having money under the mattress and Blue Tac on the lock. He explained his distress about the legal system. When questioned about whether he would receive a fair trial, he stated that he had reservations about the impartiality of the Judge. He stated that he would demand 'blood tests and photos' of all the jury members before he would be comfortable that they were going to give him a fair trial. Mr Wilson also questioned the role of his solicitor. He stated that it would not matter even if he selected his own lawyer because if the jury was not up to scratch it doesn't matter. Mr Wilson's paranoid belief system appeared to be impinging on his acceptance that he could receive a fair trial. He appears to believe he cannot be represented by his legal representation and the impartiality of the Judge and/or jury is in question. At this time I would have concerns about his ability to instruct his legal counsel about what defence he should make. I am of the view that he could probably give his version of the facts but may have difficulty giving evidence given that his thoughts are somewhat disjointed and he continues to voice bizarre paranoid delusions. I am therefore of the opinion, that on balance, Mr Wilson is currently not fit to plead and is unfit to stand trial at this time." 4Professor Greenberg has concluded that Mr Wilson is presently not fit to plead and to stand trial. I note that Dr Nielssen, in his most recent report of 1 August 2013, had expressed the same opinion. Accordingly, the psychiatric evidence before the Court is unanimous in the view as to Mr Wilson's current unfitness. 5The earlier judgment which I delivered, and the various psychiatric reports, have pointed to fluctuations in Mr Wilson's condition, depending upon treatment being provided from time to time. 6I note that Mr Wilson is in Court, and is sitting quietly and attentively as this hearing has proceeded and as I am delivering these reasons. I hope that he will remain in a position to follow, to the extent that the evidence indicates, not only what is happening today, but what will happen on the next occasion. 7Given the position of Mr Wilson, as a person who had been found unfit to be tried and referred to the Mental Health Review Tribunal, and with that Tribunal having determined that he would become fit to be tried, the provisions contained in ss.29 and 30 Mental Health (Forensic Provisions) Act 1990 ("MH(FP) Act") came into play. I mentioned this in R v Wilson (No. 1) at [20]-[24]. 8The Tribunal having expressed that view in March 2013, the matter has come back to the Court. The Director of Public Prosecutions has indicated that the criminal proceedings are to continue against Mr Wilson, and thus it is the obligation of the Court to hold a further inquiry as to his fitness, in accordance with s.29(1)(b) MH(FP) Act. As s.29(4) MH(FP) Act makes clear, ss.11 and 12 of the Act apply to the present inquiry, in the same way as they applied to earlier inquiries undertaken concerning Mr Wilson. 9Thus, the present inquiry is to proceed before a Judge sitting alone and it is necessary for the Court to set out the principles of law and the findings of fact on which the Court relies: s.11. 10Unless the Court otherwise allows, the inquiry is to proceed with Mr Wilson represented by an Australian legal practitioner, and Mr Ainsworth and Ms Wright appear for him today and have assisted the Court. The inquiry is not to be conducted in an adversary manner and the onus of proof does not rest upon any party: s.12. 11The principles of law applicable on the inquiry such as this are clear. The sole question is whether the Court is satisfied, on the balance of probabilities, that Mr Wilson is unfit to be tried for the offences alleged against him: s.6. 12The issue falls to be determined by application of what is described as the Presser test - that test emerging from the decision of Smith J in R v Presser (1958) VR 45 at 48. The Presser test has been described in decisions of the High Court of Australia, including Kesavarajah v R [1994] HCA 41; 181 CLR 230 at 245-246. 13It is those principles which I have applied at this inquiry and I note that Professor Greenberg referred to the decisions in Presser and Kesavarajah in expressing the opinion which he did. These principles are well known to forensic psychiatrists and those involved in the criminal law. 14It is necessary for the Court to express findings of fact. It is sufficient to refer to the findings expressed in R v Wilson (No. 1) and, in addition, to express my acceptance of the opinions of both Professor Greenberg in his most recent report and of Dr Nielssen in his report of 1 August 2013. 15The evidence points clearly, in my view, to the fact that Mr Wilson is presently unfit to be tried. 16The consequence of that finding is that the Court must then consider which part of s.30(2) MH(FP) Act comes into play. 17Section 30(2)(a) MH(FP) Act applies where a person who is found by the Court to be unfit to be tried has been detained, either as an "inmate" or as a "forensic patient", for a period or continuous periods in the aggregate of not less than 12 months and there has been no special hearing. 18I note that the definition of "inmate" in ss.3 and 4 Crimes (Administration of Sentences) Act 1999 includes persons who are in custody on remand (see s.4(1)(d)). The definition of "forensic patient" in s.42 MH(FP) Act includes a person who is detained following a finding of unfitness to be tried under s.14 of that Act. Mr Wilson has been so found at least once in the period since November 2009. 19It is the case that Mr Wilson has been detained in custody, either as a remand prisoner or as a forensic patient, for a period well in excess of 12 months and probably for the entire period since he was charged with these matters on 25 November 2009. 20No special hearing has been held with respect to Mr Wilson on these charges. 21Mr Wilson's case falls squarely within the terms of s.30(2)(a) of the Act. 22The statutory scheme leads to the conclusion that the Court must conduct a special hearing. The rationale for this seems clear. Where a person in Mr Wilson's position has been found unfit to be tried and has proceeded to the Tribunal, with the Tribunal concluding that he is likely to become fit to be tried in a period of 12 months, the matter returns to the Court. If the Court finds that he is again unfit to be tried and if he has been detained for more than 12 months, the statute mandates that the time has come for a special hearing to take place. That is the point which has now been reached with respect to Mr Wilson. 23I observe that a listing has been made, subject to any finding today, for proceedings against Mr Wilson to be heard at the Supreme Court sitting at Nowra commencing on 4 November 2013. The effect of the orders which I will make today will be that the Court will proceed with a special hearing commencing on that date. 24I observe that s.21(2) MH(FP) Act requires that, at a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner, and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. This provision emphasises the importance of a person in Mr Wilson's position being represented at a special hearing, not only to protect his interests but also to assist the Court in the determination of the important matters which will arise at the special hearing. It is hoped that Mr Ainsworth will be in a position to continue to represent Mr Wilson and to assist him at that important hearing which is some two months away. 25I note that there are some matters contained in Professor Greenberg's report of 5 September 2013 concerning treatment of Mr Wilson, together with discussion as to where he may be placed in the custodial system. 26On the last occasion, I made a recommendation concerning the placement of Mr Wilson. That recommendation was based upon the Court's concern that, despite what the Mental Health Review Tribunal had determined, he was being held in what seemed to be a mainstream facility at Goulburn and that this had proved somewhat problematic with respect to his treatment. 27I will not make any formal recommendation today as to any place where Mr Wilson is to be housed. Professor Greenberg, who is, of course, associated with Justice Health, will, no doubt, liaise with the relevant persons charged with the care of Mr Wilson. 28What should be said, however, is that it is clearly in the interests of Mr Wilson, in the public interest and in the interests of the administration of justice that a process be undertaken and maintained where he receives appropriate treatment, including medication, which will assist the conduct of the special hearing. Between now and 4 November 2013, it is more than highly desirable that the process of treatment discussed by Professor Greenberg be maintained. 29In accordance with s.30(2)(a) MH(FP) Act, I direct that a special hearing be conducted with respect to Mr Wilson in connection with the charges brought against him, being charges of murder, solicit to murder and commit act intended to cause a person to give false evidence. 30I confirm the listing of that special hearing to take place at the Supreme Court sitting at Nowra commencing on 4 November 2013. 31I recommend that the treatment of Mr Wilson in the meantime take into account the matters outlined in the report of Professor David Greenberg dated 5 September 2013, a copy of which will be provided to any relevant authorities to assist compliance with this recommendation. 32Bail is refused. ********** 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: 11 November 2013