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Supreme Court 23 October 2007

R v WILLS

[2007] NSWSC 1319

Homicide
CRIMINAL LAW FITNESS HEARING PSYCHIATIRIC ILLNESS

Citation: R v Wills [2007] NSWSC 1319
Court: Supreme Court of New South Wales
Date: 23 October 2007
Judge(s): McClellan CJ at CL

Background

The accused had been convicted by a jury of murder following an incident at Surry Hills in July 2002 and sentenced to eighteen years imprisonment with a fourteen-year non-parole period. Evidence of a psychiatric illness was before the sentencing judge at the time sentence was imposed.

On appeal, the Court of Criminal Appeal considered whether the accused had been fit to stand trial at the time of the original proceedings. The court accepted evidence from Dr Nielssen that the accused's lack of insight into his medical condition had prevented him from giving proper instructions to his lawyers during the trial. Satisfied that the accused may not have been found fit for trial had the question been raised at the time, the Court of Criminal Appeal quashed the conviction and ordered both a fitness hearing and a new trial.

The fitness hearing was then conducted before McClellan CJ at CL. Both the Crown and the defence presented psychiatric evidence, and the central question was whether the accused was now fit to be tried.

  • Whether the accused currently met the fitness standards established in R v Presser and confirmed in Kesavarajah v The Queen, including the capacity to make a proper defence and to give instructions to counsel
  • Whether fitness could be established notwithstanding an ongoing diagnosis of schizophrenia, where symptoms were being controlled by medication

Decision

Both psychiatrists who gave evidence, Dr Rosalie Wilcox for the Crown and Dr Nielssen for the defence, expressed the opinion that the accused was presently fit to be tried. This was a significant shift from Dr Nielssen's earlier position, which had been the foundation for the Court of Criminal Appeal's decision to quash the conviction.

Dr Nielssen explained that the accused's previous unfitness appeared to have resulted from his failure to maintain a psychiatric medication regime. The accused suffered from schizophrenia, brain damage secondary to trauma and alcohol abuse, and alcohol dependence (then in remission). When experiencing acute symptoms without medication, he had been unable to follow proceedings or give instructions that might have raised his abnormal mental state as a defence.

By the time of the fitness hearing, the accused had been placed on Quetiapine (Seroquel) and his symptoms were under adequate control. Dr Nielssen was satisfied, following a recent examination, that the accused now had the capacity to decide on a defence and to instruct counsel accordingly. That was the very capacity whose absence had originally grounded the concern about unfitness.

On that evidence, McClellan CJ at CL was satisfied that the accused was fit to plead. His Honour also addressed the practical risks to fitness during any future trial, recommending that the Parklea Mental Health Unit provide regular review, ensure medication continuity, and prepare a report for both parties at the commencement of the new trial assessing the accused's condition and the arrangements in place to maintain his medication throughout proceedings.

Orders Made

  • The accused was found fit to plead.

(Note: The formal orders beyond the fitness finding, and the mechanics of the new trial, are not fully detailed in the provided text.)

Key Takeaways

  • A diagnosis of schizophrenia does not automatically render a defendant unfit to stand trial. Where symptoms are effectively controlled by medication, the fitness standards under Presser and Kesavarajah may nonetheless be satisfied.
  • The critical capacity at issue was the accused's ability to give instructions to counsel and to decide on a defence. The court accepted that this capacity, previously absent due to unmedicated acute symptoms, had been restored through an appropriate medication regime.
  • Where fitness depends on ongoing medication, the court considered it appropriate to recommend practical arrangements to safeguard that fitness throughout the trial process, including regular psychiatric review and continuity of medication during court appearances.
  • Fitness is assessed at the time of the hearing and can change over time. The same expert who had previously identified unfitness formed the opinion, following a fresh examination, that the accused was now fit.
  • In directing a fitness hearing after quashing a conviction, the Court of Criminal Appeal did not itself determine unfitness at trial. It was sufficient that the question had been raised and that the evidence did not satisfy the court that fitness would have been established at the original trial.

Legislation and Cases Referenced

Cases:
- R v Presser (1958) VR 45 (Victorian Supreme Court decision establishing the baseline standards for fitness to stand trial)
- Kesavarajah v The Queen (1994) 181 CLR 230 (High Court of Australia decision confirming the applicable fitness standards)

Legislation:
No specific legislation was cited in the provided text.