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District Court 19 June 2024

R v Wilon

[2024] NSWDC 417

Sexual offencesAssault & violenceHomicideFirearms & weapons
CRIMINAL PROCEDURE FITNESS INQUIRY FITNESS TO BE TRIED

Citation: R v Wilon [2024] NSWDC 417
Court: District Court of New South Wales
Date: 19 June 2024
Judge(s): D Barrow SC DCJ

Background

The accused, a 73-year-old man, faced two separate sets of criminal proceedings. The first related to charges of accessory after the fact to the murder of a two-year-old child, and alternatively improper interference with a dead human body, arising from events alleged to have occurred in 1987 at a rural property near Oberon. The second set comprised 23 counts of sexual and physical assault against four complainants, together with a firearms charge, for offending alleged between 1987 and 2007.

The prosecution case in the first set of proceedings alleged that the accused was a self-proclaimed religious leader whose teachings on physical discipline of children contributed to a child's death. In the second set, the accused was alleged to have committed sexual and physical assaults against followers and other victims, including two minors. The accused remained on bail throughout.

By the time of the first arraignment in July 2023, the accused had suffered a significant stroke and was hospitalised. That event, combined with his deteriorating medical condition, prompted a formal inquiry into his fitness to be tried across both sets of proceedings.

  • Whether the accused was fit to be tried, within the meaning of s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), across both sets of proceedings.
  • Whether, under s 47(1) of the Act, the accused was likely to become fit to be tried within 12 months of the finding of unfitness.
  • What procedural steps followed from those determinations under the Act.

Decision

The Court received expert evidence from three specialists: Dr Peter Ashkar (clinical neuropsychologist), Professor Bruce Brew (neurologist), and Lisa Zipparo (forensic psychologist and neuropsychologist). All three experts were in agreement that the accused lacked the cognitive capacity to stand trial. The Court also received an affidavit from the accused's spouse, who described in detail the profound deterioration in his condition following a series of strokes and other serious medical events.

The accused's health history was extensive. He had suffered an initial stroke in February 2017, a hypoglycaemic coma in April 2023, and a further stroke in June 2023. He also suffered from an autoimmune disorder, severe aortic stenosis, lung disease, Cushing Syndrome, and insulin-dependent diabetes. By the time of the fitness hearing, his spouse described him as almost entirely dependent for basic physical care, rarely initiating conversation, unable to express himself clearly, and demonstrating significantly reduced vocabulary and short-term memory.

Against that background, the Court found on the balance of probabilities that the accused was unable to perform any of the functions relevant to fitness: he could not plead to the charges, follow the proceedings in a general sense, instruct his legal representatives, communicate his version of events, or decide what defence to rely upon.

The Court further found, again on the balance of probabilities, that the accused would not become fit to be tried within the 12 months following the finding of unfitness. All expert opinion pointed in that direction, and the parties made joint submissions to that effect. The matter was then directed to proceed under Division 3 of the Act, which governs cases where an accused person is found to be permanently unfit.

Orders Made

  • The accused is unfit to be tried, pursuant to s 36 of the Act.
  • The accused will not become fit to be tried within the next 12 months, pursuant to s 47(1)(b) of the Act.
  • The accused is to be dealt with pursuant to Division 3, s 48(1) of the Act.
  • The matter is adjourned to 13 September 2024 to enable the Court to obtain advice from the Director of Public Prosecutions as to whether further proceedings will be taken in respect of the offences, pursuant to s 53 of the Act.
  • The accused's bail is continued to that date, pursuant to s 47(2)(c) of the Act.

Key Takeaways

  • The District Court found that severe and progressive cognitive impairment, caused by multiple strokes and compounding medical conditions, can render an accused person permanently unfit to be tried even where the charges are serious and longstanding.
  • Under s 47(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the court must determine not only present unfitness but also whether fitness is likely to be restored within 12 months. Both questions are decided on the balance of probabilities.
  • Where all expert witnesses agree on both the fact of unfitness and the prospect of recovery, the court is likely to accept that joint position, particularly when it is also supported by lay evidence from a person with close daily contact with the accused.
  • A finding of permanent unfitness does not automatically end proceedings. Division 3 of the Act sets out a further process, including a requirement to obtain advice from the Director of Public Prosecutions as to whether further proceedings should be taken before the matter is finally resolved.
  • Statutory non-publication orders applied to the names of the child victim, her mother, and each complainant in the sexual assault proceedings. Those suppression obligations remain in force.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 47(1), 47(2)(b), 47(2)(c), 48(1), 53
- Crimes Act 1900 (NSW), ss 81C(b), 349

Cases cited: None stated in the judgment.