Supreme Court New South Wales Medium Neutral Citation: R v Cahill [2016] NSWSC 1697 Hearing dates: 24 November 2016 Date of orders: 05 December 2016 Decision date: 05 December 2016 Before: Hidden AJ Decision: 1. Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990, I find that the accused, William Cahill, is unfit to be tried for the offence of murder and the two offences of being armed with an offensive weapon with intent to commit assault. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) of the Act, I remand the accused in custody, pending further orders of the Court. 4. I direct the Supreme Court registry to provide the following documents to the Tribunal. (a) a copy of this judgment; (b) a copy of the exhibits tendered to this inquiry; (c) a copy of the Crown Case Statement; (d) a copy of the written submissions of the parties. Catchwords: CRIMINAL LAW – murder and related offences – whether accused fit to be tried Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R (1994) 181 CLR 230 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina William Cahill Representation: Counsel: Mr T Thorpe (Crown) Mr CJ Smith SC (Accused) Solicitors: Solicitor for DPP Legal Aid NSW File Number(s): 2015/363824 Publication restriction: No Judgment 1. HIDDEN AJ: The accused, William Cahill, has been committed to this court for trial on a charge or murder and two related charges of being armed with an offensive weapon with intent to commit assault. It is the Crown case that on the morning of Thursday, 10 December 2015, Mr Brian Liston was waiting at a bus stop in Camperdown. The accused attacked him with a knife, inflicting multiple wounds which proved fatal. The accused also brandished the knife at two bystanders who sought to intervene. The accused did not know Mr Liston, and there appears to be no rational motive for the attack. Such account of the event as he gave to police in a subsequent interview makes little sense. It is likely that at a trial the issue would be whether he is not guilty by reason of mental illness. 2. The issue before me is whether the accused is fit to stand trial. At the time of these events he was on bail in respect of a charge of aggravated robbery. A District Court judge subsequently found him unfit to be tried for that offence. The Mental Health Review Tribunal has determined, pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990, that he will not become fit for trial within 12 months of that finding and there is to be a special hearing in relation to that matter, pursuant to s 19 of that Act. However, for present purposes I must decide the question of his fitness on the evidence before me. 3. I have received the reports of three forensic psychiatrists. Two reports of Dr Richard Furst (13 September 2014 and 21 March 2016) and a report Professor David Greenberg (1 March 2016) were prepared in respect of the robbery charge, but the observations and opinions expressed in them remain relevant here. In relation to the murder charge, I have a third report of Dr Furst (3 November 2016) and a report of Dr Adam Martin (16 November 2016). 4. These reports arise from consultations with the accused by Dr Furst on 23 July 2014, 9 February 2016 and 31 August 2016, by Professor Greenberg on 15 February 2016, and by Dr Martin on 12 November 2016. The last consultation of Dr Furst and Dr Martin's consultation were directed to the murder charge. In addition, the three experts also had regard to records of the accused's treatment for mental illness at hospitals between 2012 and 2014, and by Justice Health whilst he was in custody, together with the determination of the Mental Health Review Tribunal to which I have referred and the reasons for it. 5. The accused is 29 years old. At the time of the incident the subject of these proceedings, he was living in Housing Commission accommodation in Camperdown and was subject to a Community Treatment Order. He was unemployed, receiving a disability support pension because of his mental illness. He was also subject to a Financial Management Order. He was estranged from his family and was described by Dr Furst as "socially isolated." He is currently in custody and, by order of the Mental Health Review Tribunal, he is detained at the Hamden Unit, a mental health facility within the Metropolitan Remand and Reception Centre. 6. There is no need to review the psychiatric material in any detail. In relation to the robbery charge, Dr Furst and Professor Greenberg had found him to be unfit to stand trial, and it emerges from the Mental Health Review Tribunal material that that was also the view of his treating psychiatrist with Justice Health, Dr Andrew White. That remains the view of Dr Furst in his recent report, directed to the murder charge, as it is of Dr Martin. 7. All these psychiatrists have diagnosed the accused as suffering from chronic, treatment resistant schizophrenia. It appears to have had its onset in 2006, when delusional thinking was first noticed, and a pattern of delusion and bizarre behaviour continued thereafter. It is this mental illness which is of central importance for present purposes, although Dr Furst also diagnosed what I understand to be related conditions of autistic spectrum disorder and borderline intellectual function. 8. On mental state examination, all three forensic psychiatrists found that the accused demonstrated poverty of thought and a limited insight into his mental illness. All three examined him on the issue of his fitness to be tried, with regard to the well established criteria in the judgment of Smith J in R v Presser [1958] VR 45, affirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 245. What emerges from the reports is that, while the accused appeared at different times to have varying levels of understanding of the court process, his capacity to participate in the proceedings and instruct his lawyers is significantly impaired. 9. The effect of the report of Professor Greenberg is that the accused had no more than a rudimentary understanding of the nature and course of the proceedings and the roles of the prosecutor, defence counsel, judge and jury. He had some understanding of the pleas available to him, but did not understand the plea of not guilty by reason of mental illness. Importantly, Professor Greenberg reported: I am of the opinion that Mr Cahill would have difficulty appreciating the substantial effect of evidence given in Court. He has cognitive impairment and would not meet the criteria of a rudimentary understanding of the substantial effect of evidence in Court. I am of the opinion that Mr Cahill probably could decide on what defence he should make. Mr Cahill is able to give a coherent but poor account of himself during the time of the alleged offence. The account shows poverty of thought which is a feature of his chronic schizophrenia. I am of the opinion that Mr Cahill would have difficulty in instructing his legal counsel. Mr Cahill would also have difficulty giving evidence if required to do so. 1. Of Dr Furst's reports, it is sufficient to refer to the opinion expressed in the last of them: In relation to fitness to be tried, Mr Cahill is aware of the charges he is facing. However, he was unable to state his plea options and had a concrete understanding of his plea options when they were put to him specifically. He had little understanding of the role of his lawyer. He could not explain the role of the police prosecutor in court. He has a superficial understanding of the role of the judge. He had a superficial understanding of the role of the jury and was not aware of his right to challenge in the jury selection process. He had only a superficial understanding of the role of evidence in a trial setting and the substantial effect of evidence given in court, including not understanding that the police interview could be used as evidence. He said he was unable to follow what was said in court and mental state features documented above were consistent with Mr Cahill having deficits in following proceedings, making out his defence, if any, understanding legal advice and/or giving instructions to his legal counsel that are sensible. He also lacks endurance. He remains chronically psychotic by virtue of his chronic schizophrenia, including evidence of thought disorder, paranoia, hallucinations, and negative symptoms of schizophrenia. He lacks the capacity to express himself. In my opinion, Mr Cahill would be a vulnerable witness in Court, including, but not limited to, the likelihood that he would minimise and/or deny being mentally ill at the time of the alleged offences on 10/12/15 and/or would not raise the obvious defence of mental illness by virtue of his severe mental illness and lack of insight. 1. It is Dr Martin who interviewed the accused most recently (on 12 November 2016). In his report he expressed his conclusion on the issue of fitness in this way: My findings were that generally he can answer some of the specifics around his case and demonstrates that he is aware of what he has been charged with, what it generally means to make a plea, and he appears to have at least a basic understanding of the purpose of court. He had a limited understanding of some of the finer aspects of the trial process. I think he probably has the ability to understand the substantial effect of evidence that might be given against him although may have limited capacity to challenge. In my view, I think he does have a limited capacity in the context of schizophrenia where I think he will have diminished ability to be able to follow the course of proceedings to understand what is going on in the court in a general sense. I think he will have difficulty giving the necessary instructions to his lawyers and to let his lawyers know his version of the facts, and I think he will have impaired capacity to tell the court what his version of the facts is as a direct result of his mental illness. I note that he inferred his intention to plead not guilty by reason of mental illness, in his defence. I think he has a very limited capacity to fully understand or express his reasoning in relation to the mental illness defence, or potentially substantial impairment. In summary, while he does present as a person with some understanding of his charges, what it means to plead and of the general purpose of court, I think he has a limited capacity to understand and communicate as a direct consequence of treatment-resistant mental illness. On balance, I think it is likely that the court would find him unfit to stand trial, I think he will have impaired ability to follow proceedings and limited capacity to communicate to his lawyer and to the court. 1. Before me the accused was represented by Mr Craig Smith SC, Deputy Senior Public Defender. He was instructed by Ms Joanne Harris, a solicitor of the Legal Aid Commission very experienced in criminal matters. No evidence was led from Ms Harris, but Mr Smith informed me from the bar table that she had not been able to obtain a coherent account from the accused and did not believe that he had the capacity to participate meaningfully in the trial. In any trial of the issue of fitness, of course, the observation of an accused's solicitor of his or her capacity to provide instructions is important. 2. The Crown Prosecutor and Mr Smith provided me with joint written submissions that this accused is unfit to be tried. I found those submissions helpful and, in any event, my own examination of the evidence leads me to that conclusion. That being so, I make orders in terms of those proposed in the joint submissions as follows: 1. Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990, I find that the accused, William Cahill, is unfit to be tried for the offence of murder and the two offences of being armed with an offensive weapon with intent to commit assault. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) of the Act, I remand the accused in custody, pending further orders of the Court. 4. I direct the Supreme Court registry to provide the following documents to the Tribunal: (a) a copy of this judgment; (b) a copy of the exhibits tendered to this inquiry; (c) a copy of the Crown Case Statement; (d) a copy of the written submissions of the parties. ********** 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: 05 December 2016