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Court of Criminal Appeal 19 June 2007

Russell Clement Wills v Regina

[2007] NSWCCA 160

Also reported as 173 A Crim R 208
Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION CIRCUMSTANTIAL EVIDENCE CRIMINAL LAW APPEAL AGAINST CONVICTION UNFITNESS TO BE TRIED

Citation: Russell Clement Wills v Regina [2007] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 19 June 2007
Judge(s): Beazley JA; James J; Hidden J

Background

The appellant was convicted by a jury of murder following the death of a 60-year-old public housing resident who was found severely battered in his unit in July 2002. The Crown's case was entirely circumstantial, relying on six factors including the appellant's association with the deceased, his presence in the vicinity, his bag found at the scene, an observable limp, and the deceased's blood on his clothing.

Prior to trial, the appellant had been diagnosed with schizophrenia and prescribed anti-psychotic medication, but had stopped taking it. He was assessed as fit for trial in March 2003. The question of his fitness was not raised at trial or during the initial sentencing proceedings.

Evidence about the appellant's mental state, and specifically his lack of insight into his illness and its potential impact on his ability to give proper instructions to his lawyers, emerged for the first time at the sentencing hearing. Further psychiatric evidence was placed before the Court of Criminal Appeal on appeal.

  • Whether the jury's guilty verdict was unreasonable having regard to the circumstantial evidence (Ground 1)
  • Whether, on the evidence available at trial and on appeal, a question arose as to the appellant's fitness to stand trial under the Mental Health (Criminal Procedure) Act 1990 (NSW) (Ground 2)
  • Whether leave to appeal against sentence should be granted

Decision

Ground 1: Unreasonable verdict

The Court affirmed the settled principle that circumstantial evidence must be assessed in its totality, not piecemeal. Applying that approach, the Court found a significant body of circumstantial evidence pointing to the appellant as the perpetrator. Although some individual pieces of evidence were open to alternative explanations, the jury was entitled to use one piece of evidence to resolve doubt raised by another. Ground 1 was rejected.

Ground 2: Fitness to stand trial

The determinative question was whether the appellant had the capacity to understand the proceedings so as to be able to make a proper defence. The Court noted that the relevant psychiatric evidence, which emerged only at sentencing, indicated the appellant's lack of insight into his mental illness may have prevented him from giving proper instructions to his lawyers during the trial.

Beazley JA, with whom James and Hidden JJ agreed, found the medical evidence raised a genuine question of unfitness. The Court was not satisfied, on the evidence before it, that the appellant would have been found fit had the issue been raised at trial. That uncertainty was sufficient to require intervention.

The Court quashed the conviction and ordered a new trial. It noted that whether the fitness question will arise again at a retrial, particularly if the appellant remains on appropriate medication, was not a matter for the Court of Criminal Appeal to resolve.

Sentence appeal

Given the conviction was quashed, the application for leave to appeal against sentence was dismissed as unnecessary to determine.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered
  • Application for leave to appeal against sentence dismissed

Key Takeaways

  • In a circumstantial evidence case, a jury's verdict must be evaluated by considering all of the evidence together; it is not permissible to isolate and dismiss individual strands separately.
  • The central test for fitness to stand trial is whether the accused had the capacity to understand the proceedings so as to be able to make a proper defence, consistent with the approach established in R v Presser [1958] VR 45 and affirmed in subsequent High Court authority.
  • A question of unfitness to stand trial can arise and ground a successful appeal even where the issue was not raised before or during the trial itself, provided the evidence on appeal is sufficient to create genuine doubt.
  • Where a question of unfitness to stand trial is established on appeal, the Court of Criminal Appeal will quash the conviction and order a retrial. The possibility that the accused may be found fit, or that the issue may not arise at all on retrial, does not prevent that outcome.
  • Psychiatric evidence that emerges for the first time at sentencing can be sufficient, when confirmed by further evidence on appeal, to raise a fitness question that undermines the safety of a conviction.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 5, 7, 8, 9, 10, 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Chamberlain v The Queen [No 2] (1984) 153 CLR 521
- Clarkson v Regina [2007] NSWCCA 70
- Eastman v The Queen (2000) 203 CLR 1
- Kesavarajah v The Queen (1994) 181 CLR 230
- Kirkwood v Regina [2006] NSWCCA 181
- Martin v Osborne (1936) 55 CLR 367
- Ngatayi v The Queen (1980) 147 CLR 1
- Plomp v The Queen (1963) 110 CLR 234
- R v Henley [2005] NSWCCA 126
- R v Hillier (2007) 81 ALJR 886
- R v Presser [1958] VR 45
- R v Rivkin (2004) 59 NSWLR 284
- R v RTI (2003) 58 NSWLR 438
- R v Taylor (1992) 77 CCC (3d) 551