Supreme Court New South Wales Medium Neutral Citation: R v Adam Keith WATT [2015] NSWSC 1614 Hearing dates: 29 October 2015 Date of orders: 29 October 2015 Decision date: 29 October 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. The Court determines it is not necessary to proceed with an inquiry as to the accused's fitness to be tried. 2. The proceedings be adjourned to the Arraignments List on 4 December 2015. Catchwords: FITNESS TO BE TRIED – conspiracy to murder – cognitive impairment – Crown proposes to proceed with separate trial against accused – medical opinion unanimous that accused fit for shorter trial – no need to continue with inquiry. Legislation Cited: - Crimes Act 1914 (Cth) – Div 6 of Pt IB - Mental (Forensic Provisions) Act 1990 – s 8 Cases Cited: - R v Presser [1958] VR 45 - R v Watt [2012] NSWSC 1574 Category: Principal judgment Parties: The Queen – Prosecutor Adam Keith Watt – Accused Representation: Counsel: C. Patrick SC – Prosecutor Ms S. Tambyrajah – Accused Solicitors: Solicitor for Public Prosecutions – Prosecutor File Number(s): 2014/196231 Judgment (revised from ex tempore) 1. On 27 May 2015 the accused, Adam Keith Watt, was committed for trial to this Court on a charge of conspiracy to murder. Subsequently an indictment was filed in this Court containing four counts. Only the third count concerned Mr Watt. It maintained the charge of conspiracy to murder and included an alternative charge of unauthorised possession of a firearm. The other three counts on the indictment named five other persons. Count 1 alleged that three persons had murdered the person who is alleged to be the object of the conspiracy involving Mr Watt. 2. Before Mr Watt was arraigned an issue was raised as to his fitness to be tried. Pursuant to s 8 of the Mental (Forensic Provisions) Act 1990 (the "Act"), Johnson J directed that an inquiry into Mr Watt's fitness be undertaken. 3. The inquiry was listed before me on 29 October 2015. Upon the matter being called on the Crown Prosecutor advised the Court that in light of certain medical reports that had been received the Crown had elected to file a stand-alone indictment against Mr Watt and sought to have him tried separately. 4. It was the agreed position of both the Crown Prosecutor and Mr Watt's legal representative that the effect of the medical material was that, provided the trial of Mr Watt proceeded separately and there were appropriate breaks throughout the course of the trial, he was fit to be tried. 5. The parties jointly submitted in light of the material and the Crown's approach to the prosecution there was "no longer any need for such an inquiry" within the meaning of s 10(1)(a) of the Act and thus the inquiry need not be conducted. The parties quite properly accepted that the Court needed to satisfy its own view on that matter. 6. I have now considered the material and I have also considered whether it would be appropriate to proceed to conduct an inquiry. However, in view of the contents of the medical reports, some of which I will outline, and the approach that has been outlined by the Crown to the future progress of the matter, I consider it is appropriate to determine that an inquiry is no longer necessary. In particular, the material indicates there is no issue as to Mr Watt's fitness to participate, in the sense discussed in R v Presser [1958] VR 45 ("Presser"), in a trial of the anticipated length. Of course, if the nature of the trial and its potential length should change in any material way the matter may then need to be readdressed. Background 1. Before I outline the effect of the medical material, it is necessary to briefly state the background to these proceedings and Mr Watt's condition. 2. Mr Watt is now 48 years of age. It had previously been alleged that between 1 December 2005 and 30 September 2007 he was a participant in a large conspiracy to import prohibited drugs. As a consequence of him being charged with offences of that kind he was a remand prisoner at the Metropolitan Remand Centre from at least 1 October 2008 to 9 December 2009. Sadly, while he was a prisoner on remand, he was the subject of a serious assault which left him with a cognitive impairment. The assault is described in R v Watt [2012] NSWSC 1574 at [10]ff ("Watt No 1"). 3. It is the Crown's accusation in the present proceedings that, while he was a prisoner on remand, he became closely acquainted with one of his alleged co-conspirators. In the Crown Case Statement that has been filed in these proceedings it is alleged that, after his release on remand and, in particular, between January 2011 and April 2011, he assisted that co-conspirator in that co-conspirator's alleged plan to execute a person, who had previously given evidence against him. The particular act said to have been undertaken by Mr Watt is the sourcing of a firearm to be used in that execution, although it is alleged it was ultimately not used. 4. On 12 December 2012 Price J determined Mr Watt was unfit to be tried of conspiracy charges to which I referred earlier (Watt No 1). In particular it should be noted that in forming that conclusion his Honour was swayed by the fact that the trial of the charges then pending against Mr Watt was likely to be very complex and lengthy involving a large amount of telephone intercepts, transcript and the like (see Watt No 1 at [58]). 5. On 16 December 2013 Price J determined Mr Watt's fate on the drug charges in accordance with Div 6 of Pt IB of the Crimes Act 1914 (Cth) (see R v Watt [2013] NSWSC 1896). 6. In 2014 Mr Watt was charged with the offences that are now before the Court. Medical Reports 1. Three expert reports were tendered before me. 2. Dr Olav Nielssen, psychiatrist, provided a report dated 26 August 2015. Dr Nielssen had previously provided a record that was tendered in the inquiry conducted by Price J. At that time Dr Nielssen concluded that Mr Watt was unfit to be tried (see Watt No 1 at [28]). However, in his recent report Dr Nielssen concluded that by 2015 Mr Watt had made a "remarkable recovery" which Dr Nielssen attributed to Mr Watt's above average premorbid intelligence and his approach to rehabilitation. Bearing in mind the Presser criteria, Dr Nielssen concluded that Mr Watt was fit to be tried. 3. A joint report from Dr Susan Pulman, a clinical neuro-psychologist and forensic psychologist, and Amanda J White, a forensic psychologist, dated 31 August 2015, was also tendered. The authors express a concern about Mr Watt's ability to participate in the relevant sense in a trial of six to eight weeks duration, but they were more confident of Mr Watt's capacity to participate in a short trial. 4. In addition a report from Professor David Greenberg, dated 16 October 2015, was tendered. In his report Professor Greenberg expressed satisfaction that Mr Watt satisfied the Presser criteria, save for a concern about his ability to follow Court proceedings and appreciate the effect of evidence because of difficulties with his concentration and attention. Ultimately, Professor Greenberg concluded as follows: "Despite these cognitive impairments, Mr Watt is eager to defend himself on the charges and has made copious notes and records which he carries on his laptop. During the psychiatric interview he was able to call up information from his computer on a variety of topics related to his current criminal charges. He showed an ability to compensate for his mild cognitive decline by utilising various compensatory methods to overcome his memory failings. I am therefore of the view that Mr Watt is, on balance, fit to plead and to stand trial at this time provided the Court makes the following concessions for him: 1. That Mr Watt be allowed to utilise his laptop or written materials during the course of proceedings. 2. That Mr Watt be allowed frequent breaks every sixty to ninety minutes. 3. That Mr Watt's Court hearing be held in the mornings or cease in the early part of the afternoon because of his difficulties with mental fatigue. 4. His solicitor could be of assistance in summarising and explaining any difficult legal terminology and assist him by verbally summarising the evidence presented in Court on an ongoing basis throughout his Court hearing." 1. As I have already indicated, the Crown's amended indictment seeks to address the concerns raised by the report of Professor Greenberg as well as the concerns of Ms White and Dr Pulman. This Court will need to be mindful of Mr Watt's limitations as have been identified above. 2. Nevertheless, in the end result, and in light of the amended indictment and the approach of the Crown, the psychiatric and psychological experts and the parties were ultimately unanimous as to Mr Watt's fitness to stand trial on the charges on a separate indictment. 3. In those circumstances, I conclude it is no longer necessary to continue with an inquiry. Otherwise, I will order the proceedings be adjourned to the Arraignment List on 4 December 2015. ********** 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: 06 August 2018