Citation: R v Wotherspoon [2012] NSWSC 1641
Court: Supreme Court of New South Wales
Date: 27 August 2012
Judge: Hidden J
Background
The accused was charged with murder and robbery in company, alleged to have been a party to a joint criminal enterprise to rob the deceased, in the course of which the deceased died. Before the trial could proceed, the court was required to determine whether the accused was fit to be tried.
The accused had a documented history of mental illness. Two forensic psychiatrists, one engaged by the Crown and one by the defence, each examined her on two separate occasions. Both experts observed active psychotic symptoms, including what they described as bizarre and disturbing delusions, on each occasion they assessed her.
Her treating psychiatrist, who had also been engaged by the defence, noted she had been held at Long Bay Hospital for approximately 15 months at the time of the hearing. The medication she had been persuaded to take provided only limited relief from her condition.
Legal Issues
- Whether the accused met the threshold of unfitness to be tried under the criteria established in R v Presser and Kesavarajah v R
- What orders were required to follow from a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW)
Decision
Hidden J found the matter clear. Both psychiatrists independently concluded that the accused was unfit to be tried, applying the Presser criteria, which require that an accused person be able to understand the nature of the charges, the available pleas, the roles of court officers, and the general nature of court proceedings, as well as being capable of instructing counsel.
Professor Greenberg reported that the accused did not understand the meaning of a guilty or not guilty plea, could not appreciate the significance of evidence presented in court, and was unable to give rational instructions to her lawyers. Dr Furst, who had treated her over the preceding period, found that she continued to suffer acute delusions and auditory hallucinations, and that she incorporated her own legal representatives into her delusional framework. He also expressed the opinion that she was unlikely to become fit to stand trial within the next 12 months.
Senior counsel for the accused confirmed from the bar table that he and his instructing solicitor had experienced precisely the difficulties the psychiatrists described. They had been unable to obtain rational instructions from the accused in preparation for trial.
On the basis of the two psychiatric opinions, the practical confirmation from defence counsel, and the absence of any contrary evidence, Hidden J found it abundantly clear that the accused was unfit to be tried.
Orders Made
- The accused was found unfit to be tried.
- The matter was referred to the Mental Health Review Tribunal pursuant to section 14(a) of the Mental Health (Forensic Provisions) Act 1990.
- The accused was remanded in custody pending the Tribunal's determination under section 16 of the Act, in accordance with section 14(b)(iii).
- The Registrar of the Supreme Court was directed to provide the Tribunal within 14 days with: a copy of the finding and reasons; a copy of the orders; a transcript of proceedings; copies of the psychiatric reports; and a copy of the Crown Case Statement.
Key Takeaways
- A finding of unfitness to stand trial requires that the accused be unable to meet the Presser criteria, which include understanding the charges and available pleas, comprehending court procedures, and being capable of instructing legal counsel.
- Where two independent forensic psychiatrists reach the same conclusion on fitness, and defence counsel confirms the practical inability to obtain instructions, a court may regard the unfitness finding as clear and beyond reasonable doubt.
- The confirmation by experienced senior counsel that rational instructions could not be obtained carried independent weight in reinforcing the psychiatric evidence.
- Under the Mental Health (Forensic Provisions) Act 1990, a finding of unfitness triggers a mandatory referral to the Mental Health Review Tribunal, which then determines the accused's future management.
- Chronicity of a psychiatric condition, and limited progress over an extended inpatient period, are relevant considerations in assessing both current fitness and the prospects of fitness being attained within a 12-month period.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16
Cases
- R v Presser [1958] VR 45
- Kesavarajah v R (1994) 123 ALR 463; 74 A Crim R 100