R v Wilson (No 3) [2017] NSWSC 1680

Supreme Court New South Wales

Medium Neutral Citation: R v Wilson (No 3) [2017] NSWSC 1680 Hearing dates: 27 November 2017, 29 November 2017, 30 November 2017 and 1 December 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Tendency evidence is admissible. Catchwords: CRIMINAL LAW – murder – special hearing – judge alone – tendency evidence – victim's tendency established- accused's tendency established – tendency evidence admissible Legislation Cited: Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Hughes v The Queen (2017) ALR 187; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 R v Wilson [2015] NSWSC 1538 R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55 Category: Procedural and other rulings Parties: Regina Pearl Marie Wilson Representation: Counsel: Ms K Ratcliffe (Crown) Mr P McGrath SC (Accused)

Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused) File Number(s): 2013/88509 and 2013/44091 Publication restriction: Nil

Judgment 1. Ms Wilson has been charged under s 18(1)(a) of the Crimes Act 1900 (NSW), with having murdered Jason Shepstone on 12 February 2013. They had then had a relationship for some years and often lived together at Ms Wilson's home, where Mr Shepstone died after Ms Wilson struck him with a metal pole and threw and/or poured recently boiled water over him. 2. There is evidence that Mr Shepstone was a long term alcoholic who suffered from cirrhosis of the liver which was so advanced, that in February 2013 it could at any time have led to his death. On the expert evidence, however, his death resulted from the combined effects of multiple burns, blunt force injuries and the condition of his liver. 3. In R v Wilson [2015] NSWSC 1538, I found that Ms Wilson was unfit to be tried, after a consensus emerged between the experts who had examined her, Dr Furst and Dr Allnutt, about the state of her mental health. Ms Wilson was later released by the Mental Health Review Tribunal. 4. The murder charge is now being heard at a special hearing conducted before me, as a judge sitting alone. Under s 19(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) the purpose of such a special hearing is specified to be: "… ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged" 1. As discussed by Spigelman CJ in R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 at [3], [34], s 21(1) of the Forensic Provisions Act requires that the special hearing be conducted as "nearly as possible as if it were a trial of criminal proceedings".