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Supreme Court 15 October 2012

R v Wilson

[2012] NSWSC 1247

Homicide
CRIMINAL LAW FITNESS TO PLEAD MURDER ACCUSED NO LONGER FIT TO BE TRIED ORDERS

Citation: R v Wilson [2012] NSWSC 1247
Court: Supreme Court of New South Wales
Date: 15 October 2012
Judge(s): Schmidt J

Background

The accused faced a charge of murder arising from the death of a man at Currowan on 24 November 2008. He had entered a plea of not guilty in May 2012. The matter came before Schmidt J for hearing, with the jury not yet empanelled.

The accused had a lengthy psychiatric history, including a diagnosis of schizophrenia and a substance abuse disorder. He had previously been found unfit to stand trial, but by April 2012 his condition had stabilised with antipsychotic medication, and two psychiatrists agreed he had become fit to proceed.

Shortly before the scheduled hearing in October 2012, the Crown raised the fitness question again. The accused's treating psychiatrist, Dr Nielssen, had conducted a further assessment and formed the view that the accused's condition had deteriorated, apparently because he had stopped taking his medication.

  • Whether the accused remained fit to be tried at the time of the scheduled hearing, in light of a fresh psychiatric assessment finding deterioration in his condition
  • Whether the presumption under s 15 of the Mental Health (Forensic Provisions) Act 1990 that an accused previously found fit remains fit had been displaced
  • What orders should follow from a finding of unfitness

Decision

Schmidt J was satisfied on the balance of probabilities, applying the test in R v Presser [1958] VR 45, that the accused was no longer fit to stand trial. Under Presser, fitness requires, among other things, that an accused be able to understand the proceedings in a general sense, follow the evidence, give reliable instructions to counsel, and make known his version of the facts. The accused fell short of these requirements.

Dr Nielssen's October 2012 report explained that the accused had stopped taking antipsychotic medication some months earlier, leading to an exacerbation of his chronic schizophrenic illness. Although the accused understood the charges and intended to plead not guilty, his delusional system had widened to encompass his own legal representatives, and his beliefs affecting his ability to give reliable instructions appeared to stem from those delusions.

The accused's own expressed wish to proceed with the hearing did not alter the outcome. Schmidt J noted that the earlier finding of fitness had to be departed from given the unchallenged evidence of changed circumstances. Dr Nielssen expressed the opinion that the accused would again respond to treatment and become fit for trial after several months of antipsychotic medication.

Orders Made

  • The accused was referred to the Mental Health Review Tribunal
  • The proceedings were adjourned pending the Tribunal's determination under s 16 of the Mental Health (Forensic Provisions) Act 1990
  • The accused was remanded in custody until the Tribunal's determination had been given effect

Key Takeaways

  • The Supreme Court confirmed that a previous finding of fitness does not prevent a subsequent inquiry where fitness is raised in good faith, with the accused bearing the practical burden of displacing the presumption under s 15 of the Mental Health (Forensic Provisions) Act 1990 on the balance of probabilities.
  • Under the Presser test, the ability to give reliable instructions to counsel is a central component of fitness; a delusional system that compromises that capacity is sufficient to ground a finding of unfitness, even where the accused understands the charge and wishes to proceed.
  • An accused's express instruction to proceed with a hearing does not preclude a court from finding that person unfit to stand trial.
  • Fitness can fluctuate. Here, compliance with antipsychotic medication had previously produced fitness; cessation of that medication produced a recurrence of unfitness within months.
  • Where unfitness is established, referral to the Mental Health Review Tribunal under the Mental Health (Forensic Provisions) Act 1990 is the mandatory procedural consequence.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 9, 10, 15, 16

Cases:
- R v Presser [1958] VR 45 (Smith J's foundational statement of the fitness to stand trial test)