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Supreme Court 16 October 2015

R v Wilson

[2015] NSWSC 1538

HomicidePublic order & justice offences
CRIMINAL LAW PROCEDURE MURDER FITNESS TO BE TRIED “PRESSER” PRINCIPLES ACCUSED UNFIT TO BE TRIED

Citation: R v Wilson [2015] NSWSC 1538
Court: Supreme Court of New South Wales
Date: 16 October 2015
Judge: Schmidt J

Background

The accused was charged with the murder of her then-partner, who died in February 2013 from multiple blunt force and heat-related injuries. The accused had given police an account in which she admitted throwing hot water on the deceased and striking him with a metal bar during an argument. A post-mortem examination confirmed the cause of death, and the charge was subsequently upgraded from recklessly causing grievous bodily harm to murder.

A question arose during the proceedings as to whether the accused was mentally fit to stand trial. Her lawyers identified an ongoing deterioration in her mental health, prompting further psychiatric examination. Four expert reports were tendered and two psychiatrists gave concurrent evidence.

By the time of the hearing, all experts had reached a common view: the accused was not fit to be tried. The parties also agreed on the terms of the orders to be made.

  • Whether the accused met the fitness-to-be-tried standard established in R v Presser [1958] VR 45
  • Whether the accused's mental state was such that she could understand the proceedings, follow the evidence, give instructions to her lawyers, and make a defence over a three-to-four week trial
  • What orders should follow from a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

Schmidt J conducted the fitness inquiry under s 9 of the Mental Health (Forensic Provisions) Act 1990 (NSW), applying the balance of probabilities standard required by s 6. The inquiry was conducted on a non-adversarial basis, consistent with s 12, meaning the onus of proof did not rest on any particular party.

The court applied the Presser principles, which require an accused to be able to understand the charge, plead to it, exercise the right of challenge, follow the proceedings in a general sense, understand the substantial effect of the evidence, and give instructions to counsel about their version of events. Initially, expert opinion was divided: there was broad agreement that the accused could understand the charge and nature of the proceedings, but disagreement about whether she could follow the trial and make a defence.

Following further examination, the two psychiatrists who gave concurrent evidence agreed that the accused was suffering moderate to severe depression alongside a range of psychotic symptoms. These included a belief that the deceased's spirit was in her house, that she was being followed, that paedophiles intended to kill her, and that the person who had died was not the deceased at all. The experts considered these symptoms unlikely to be feigned. Combined with an underlying cognitive impairment and dementia that was expected to continue deteriorating, both psychiatrists concluded it was unlikely the accused would recover sufficiently to stand trial.

Schmidt J accepted this unanimous expert view, and found it was confirmed by the difficulties her own lawyers had experienced in advising her and obtaining instructions. The court was satisfied the accused did not meet the Presser test and was currently unfit to be tried.

Orders Made

  • The accused was found currently unfit to be tried for the murder charge.
  • The matter was referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • Bail conditions were varied to require the accused to attend the Emergency Department at Shellharbour Hospital by 5pm on 19 October 2015 for psychiatric assessment, to accept all reasonable directions and treatment from medical staff, to attend and comply with all directions of the Tribunal, and to reside at a specified address unless hospitalised.
  • The Registrar was directed to provide copies of the orders, evidence transcripts, and exhibits to both Shellharbour Hospital and the Mental Health Review Tribunal.

Key Takeaways

  • The Presser test requires an accused to satisfy multiple functional criteria, not just a general understanding of the charge. The inability to follow proceedings, understand evidence, or give adequate instructions to counsel can each independently ground a finding of unfitness.
  • Under s 6 of the Mental Health (Forensic Provisions) Act 1990 (NSW), fitness is determined on the balance of probabilities, and under s 12 the inquiry is non-adversarial, with no onus resting on any particular party.
  • As confirmed in Kesavarajah v The Queen (1994) 181 CLR 230, fitness must be assessed with regard to the accused's likely condition throughout the entire trial, not merely at its commencement. The anticipated length of the proceedings is a relevant consideration.
  • Where all experts reach a common view on unfitness, and that view is corroborated by the practical difficulties experienced by the accused's own legal representatives, a finding of unfitness is described by the court as "unavoidable."
  • A finding of unfitness does not necessarily signal a permanent bar to trial. The court noted that further treatment offered the best possibility of recovery, though both psychiatrists considered full recovery unlikely given the accused's underlying cognitive deterioration.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 9, 12, 14

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230