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Supreme Court 30 August 2022

R v Woodham

[2022] NSWSC 1154

Homicide
CRIMINAL LAW FITNESS TO BE TRIED ALLEGATION OF MURDER SCHIZOPHRENIA POSSIBLE COGNITIVE IMPAIRMENT ACCUSED UNFIT TO BE TRIED

Citation: R v Woodham [2022] NSWSC 1154
Court: Supreme Court of New South Wales
Date: 30 August 2022
Judge: Hamill J

Background

The accused was charged with the murder of a woman at Numbaa on 10 June 2021. The circumstances involved a random and violent killing of an innocent victim, and the prosecution held physical, forensic, and statement evidence consistent with the accused's involvement. The accused had made contradictory statements to family members and police in the aftermath, which the court noted was consistent with his documented psychiatric history.

The accused had a lengthy, often untreated mental health history, including a diagnosis of schizophrenia or schizoaffective disorder first identified during earlier criminal proceedings in 2019. He had been released from custody for a prior violent offence just six weeks before the killing, without any treatment plan in place despite his condition being well documented at the time of sentencing for those earlier matters.

The inquiry was conducted under Part 4 of Division 1 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) to determine, first, whether the accused was currently fit to be tried, and second, whether he was likely to become fit within the following 12 months.

  • Whether the accused met the unfitness criteria under section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which codifies the common law "Presser test"
  • What degree of certainty the legislation requires when a court finds that an accused "will not become fit to be tried" within 12 months
  • Whether the gap between the legal standard of certainty and the inherent uncertainty of psychiatric opinion creates a practical difficulty in applying that statutory test

Decision

Hamill J found, on the basis of concurrent expert evidence from Dr Kerri Eagle (retained by the defence) and Dr Adam Martin (retained by the prosecution), that the accused was unfit to be tried. The two psychiatrists were largely in agreement. The court made detailed findings under each criterion in section 36(1), noting that the accused could not understand the difference between murder and manslaughter, did not understand what a juror was (believing they were witnesses to the events), could not follow complex proceedings, could not meaningfully instruct his lawyers, and could not decide what defence to rely on. His solicitor's affidavit provided additional support for those findings.

Both experts diagnosed the accused with schizophrenia or schizoaffective disorder, a chronic condition marked by auditory hallucinations, grandiose and persecutory delusions, mood disturbances, manic episodes, emotional blunting, and anhedonia. Compounding the psychiatric illness, the court accepted that the accused also suffered from a substantial cognitive impairment, which Dr Martin indicated met the clinical threshold for a cognitive impairment diagnosis. Notably, the most effective available treatment (Clozapine) was unlikely to address his underlying cognitive deficits even if it improved his psychotic symptoms.

The more analytically difficult question was whether the court could find that the accused "will not become fit to be tried" within 12 months, the statutory formulation that triggers different consequences under the Act. Both experts expressed the view that his impairments were "chronic and enduring" and that he would not become fit within 12 months, but they framed those opinions with appropriate clinical circumspection rather than certainty. Hamill J addressed the tension between the language of the statute, which uses the language of certainty, and the reality that, as the judge put it, "there are no real certainties in psychiatry." The court observed a "linguistic chasm" between the terms lawyers use and what psychiatrists are able to assert.

Hamill J ultimately found that he could not reach the level of certainty the statutory language required to hold that the accused "will not become fit" within 12 months. The accused had shown some degree of recovery during the period 2018 to 2020, there was no current evidence of his treatment progress in custody, and the experts had appropriately qualified their opinions. Accordingly, the court found instead that the accused "may become fit" within 12 months, with the matter referred to the Mental Health Review Tribunal.

Orders Made

  • The accused was found unfit to be tried pursuant to section 36 of the Act.
  • The court found the accused may become fit to be tried within the next 12 months pursuant to section 47(1)(a) of the Act.
  • The accused was referred to the Mental Health Review Tribunal pursuant to section 49(1) of the Act.
  • The accused was remanded in custody pursuant to section 47(2)(d) of the Act.
  • The Registrar was directed to provide a copy of the transcript, exhibits, and judgment to the Mental Health Review Tribunal as soon as possible.
  • The court recommended that the Mental Health Review Tribunal arrange assessment by an appropriately qualified expert to determine the extent of the accused's cognitive impairment.

Key Takeaways

  • Fitness to be tried under section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) codifies the Presser criteria, and a finding of unfitness requires assessment across each of the listed capacities, with modifications and simplifications to trial process taken into account.
  • The statutory phrase "will not become fit to be tried" within 12 months demands a level of certainty that may be difficult or impossible to reconcile with standard psychiatric opinion, which characteristically avoids absolute predictive claims about future mental states.
  • Where a court cannot reach the degree of certainty the statutory language requires, the appropriate finding is that the accused "may become fit" within 12 months, rather than stretching expert evidence beyond what it genuinely establishes.
  • Cognitive impairment and schizophrenic illness can operate independently as sources of unfitness; even where treatment addresses psychotic symptoms, an underlying cognitive impairment may persist and continue to prevent fitness.
  • The absence of a current treatment plan for an accused with a known, severe and longstanding psychiatric condition, despite that condition being documented at the time of a prior sentencing, was a factual circumstance the court treated as particularly significant in understanding the accused's presentation.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 44, 47, 49
- Bail Act 2013 (NSW), s 22B

Cases:
- R v Presser [1958] VR 45
- Lloyd v R [2022] NSWCCA 18
- Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173
- Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171
- R v Lailna [2021] NSWSC 1205
- R v Risi [2021] NSWSC 769