R v Brett Wayne SMITH

LEGISLATION CITED : Mental Health (Forensic Provisions) Act 1990

Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 CASES CITED : R v Presser [1958] VR 45 R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284

PARTIES : The Crown Brett Wayne Smith (Accused)

COUNSEL : M Tedeschi QC (Crown) D Stewart (Accused)

SOLICITORS : S E O'Connor, Solicitor for Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: On 1 December 2009 I conducted an inquiry pursuant to the provisions of the Mental Health (Forensic Provisions) Act 1990 ("the Act") into whether the accused Brett Wayne Smith is unfit to be tried in respect of two charges pending against him, namely, that on 20 November 2008 at Kempsey he did murder Adam Catt and that on the same day he did wound Janelle Hutman with intent to murder her. On that day I determined that the accused was unfit to be tried for those offences and made orders consequential upon that determination. I indicated that I would deliver my reasons for that decision today. The Crown case 2 According to the Crown case the accused was born on 5 June 1968. 3 The deceased and his girlfriend Janell Hutman lived at home unit premises in Sea Street, West Kempsey. The accused lived in a unit in the same building. At about 8.45 on the morning of 20 November 2008 the deceased was at home with his sister when her 10-year old son entered the home and said that the accused had just punched him. The deceased and his sister then went to the accused's unit to confront him about what they had been told. The deceased banged on the door and shouted, "Get out of the house, you bastard. Why would you hit a little kid for [sic]?" 4 This confrontation continued for about a minute, when the accused came to the door. The deceased stepped back from the door as it opened. The accused was standing holding a large black-handled kitchen knife in his right hand, which he raised above his shoulder. The deceased stepped backwards and slipped off the front steps and fell over a small log. The accused advanced towards him making stabbing and slashing motions with the knife. This was seen by the deceased's sister from her front step and by Ms Hutman who was looking through the bedroom window of the unit that she shared with the deceased. 5 The deceased was at this stage bleeding from the face and stomach. The accused turned and ran back inside his unit, and the deceased began walking back to his sister's place. As he reached the top of the front steps he collapsed to the ground. His sister called the police while Ms Hutman placed pressure on the deceased's wounds with her hands. 6 Ms Hutman heard the accused open his front door and looked up to see him pointing the knife at her and say, "And you". The accused had the knife in his right hand, raised over his shoulder. Ms Hutman took hold of a small wooden table from the front porch and used it to protect herself as the accused ran at her slashing with the knife. The table was flung from her grasp so she ran towards the carport. She felt a stab wound to the left side of her torso. She continued to run as the accused chased her. She changed direction and was again struck in her back with the knife, which caused her to fall over. The accused stood over her as she said, "Please Brett don't". She crossed her arms over her face to protect herself. The accused stabbed downwards towards her with the knife, and she rolled to the side to avoid being struck. The blade of the knife missed her and struck the concrete. The accused walked away. He was heard to say, "That's what youse get for fuckin' taunting me". 7 When the police arrived the accused was agitated and semi-coherent. He complained that he was sick of the noise from the children and buses. The police asked the accused where the knife was. He replied, "I threw it down there," indicating the direction of a car in the carport. He was placed under arrest and said, "Why do they taunt me?" When the police could not find the knife in the carport the accused was again asked where it was. He said, "It's broken in the bin inside, why do they taunt me?" The knife was located in the bin. The blade was bent to an angle of almost ninety degrees at the handle. 8 The cause of death of the deceased was a stab wound to the lower front right hand side of the chest that had penetrated 20cm into the chest cavity cutting the 7th rib and completely severing the inferior vena cava. This resulted in severe bleeding and collapsed lungs. The deceased also sustained non-fatal injuries. 9 Ms Hutman received two stab wounds that required hospital treatment. One stab wound was to her left anterior chest below the breast approximately 2cm in length. The other wound was to the right posterior chest of approximately the same length.

The medical evidence 10 The accused was seen by Dr Greg Steele at Silverwater Prison on 16 September 2009. He was assessed for the purpose of providing an opinion as to his fitness to be tried and whether he had available a defence of mental illness. Dr Steele prepared a report dated 19 September 2009. 11 The accused was seen to be a man of Aboriginal descent, single and never married. He was born in the Lismore/Kempsey area of New South Wales and is the second of five siblings. He appears to have had a caring and intact family with a normal upbringing unaffected by physical, sexual or economic deprivation. There was a vague history of psychiatric illness in one of his younger brothers. He had himself been on a Disability Support Pension since the age of about 23. 12 The accused's psychiatric illness became apparent at the age of 21. He was then using marijuana heavily and this had continued to be a complicating feature of his condition. He had a history of several psychiatric admissions. He had been diagnosed as having chronic paranoid schizophrenia that had apparently defied treatment with long acting depo anti-psychotics as well as oral anti-psychotics. His most recent psychiatric admission had been to Kempsey Psychiatric Unit in September 2008, where he "went for a rest for a couple of weeks". 13 Following this the accused was treated with Clozapine in view of his treatment resistant schizophrenia. A Community Treatment Order was considered. 14 The accused described himself as being fearful of his neighbours. This was because of "all the stuff going on". He referred to demons coming through the walls, which he dealt with by locking himself in what he called "my little flat". He believed there were ghosts around and in some way these ghosts and demons were controlled by the next-door neighbours and were trying to take over his body. The messages he got from his three television sets were somehow related to this but he said he would deal with this by "just changing channels". 15 Matters subsequently escalated rapidly when, in his words, "the kids were mucking around" outside his unit. This resulted in the deceased coming to his door to remonstrate with him about allegations that he struck a child. He denied having done so to Dr Steele. This resulted in the accused believing that he was going to be killed. However, he expressed bewilderment at this saying, "I don't know what they were trying to kill me for". In his own defence the accused said when he committed the acts with which he has been charged he "wasn't right in the head". 16 The accused presented to Dr Steele with some early signs of tardive dyskinesia apparently related to his longstanding use of anti-psychotic medications. His manner throughout the interview was said to be only marginally appropriate and congruent to a medical examination. Dr Steele said that he never established any rapport with the accused and terminated the interview after 30 minutes. The accused's speech was often quite indistinct and monotonous with few inflections. He was quite unable to describe how he felt about the circumstances he was facing or the situation in which he found himself. Throughout the interview the accused's emotional responses were restricted and blunted and he expressed no real regret or remorse for his actions. 17 The accused was also distracted throughout the interview by auditory hallucinations. He frequently lost the thread of his conversation, making it difficult to either give or receive information. 18 Dr Steele said that the accused was confused and very ambivalent about whether he could instruct a solicitor or avail himself of the defence of mental illness. He continues to manifest symptoms and signs consistent with a diagnosis of treatment resistant chronic paranoid schizophrenia complicated by cannabis abuse and dependence. It was Dr Steele's opinion that the accused satisfied few, if any, of the Presser criteria for fitness to be tried and was not fit to be tried. He was also of the view that the accused would have had available to him a defence of mental illness. He was grossly impaired in his ability to know the nature and quality of his acts or to know that they were morally wrong. 19 The accused was also examined and assessed by Dr Olav Nielssen at the MRRC on 11 June 2009. He recorded observations of the accused that conform to those recorded by Dr Steele. This included the accused's delusional beliefs that he had been the subject of demonic attack by his neighbours immediately prior to the events that gave rise to the charges. 20 In his report dated 12 August 2009 Dr Nielssen expressed the following opinion: "The diagnosis of chronic treatment resistant schizophrenia is based upon [the accused's] account of typical symptoms of schizophrenia and a typical pattern of treatment that included repeated admissions to psychiatric hospital and treatment with long acting injections, and [the accused's] presentation during the recent interview. He was dishevelled in appearance, disorganised in his thinking, appeared distracted as though by hallucinations and expressed a bizarre delusional belief regarding his neighbours.

[The accused's] mental illness was thought to be at least partly treatment resistant as he continued to have acute symptoms of mental illness and to hold bizarre delusional beliefs despite consistent treatment with a moderate dose of antipsychotic medication in a drug free environment since his arrest in November.

From the history provided [the accused] also met the accepted criteria for the diagnosis of cannabis abuse disorder, as it seems likely that his abuse of cannabis contributed to previous exacerbations of mental illness. He also reported consumption of cannabis on the day of the offence, which could have increased the intensity of symptoms and [the accused's] propensity to violence.

At the time of the recent interview there was some doubt about [the accused's] fitness for trial as he reported that he intended to enter a plea of guilty and did not recognise that he had been mentally ill or that his beliefs regarding the victims were delusional. There was also significant impairment in intellectual function associated with treatment resistant mental illness that would affect [the accused's] capacity to follow any proceedings and give reliable instructions based on his understanding of what had taken place in court. However, he is of normal pre-morbid intelligence and should become fit for trial when he receives adequate treatment.

I believe [the accused] probably has the defence of mental illness open to him, as he has a severe schizophrenic illness, which is recognised in law to be a disease of the mind, which gave rise to a defect of reason in the form of grossly disorganised thinking and the delusional belief that the neighbours who he attacked were involved in subjecting him to demonic attacks. His illness prevented him from recognising that his actions were morally wrong, as he believed that he was acting in self defence, or to reason with any sense of composure about the likely consequences of his actions, because of the loss of awareness that he was mentally ill, the acutely fearful state arising from his delusional beliefs and his grossly disorganised and illogical thinking.

[The accused] needs long term rehabilitation in a forensic hospital." 21 Dr Nielssen later re-examined the accused on 8 October 2009 and read Dr Steele's report. In a report dated 28 October 2009 Dr Nielssen expressed the following opinion: "From the findings of the further interview it now seems clear that [the accused] is unfit for trial. He was unable to raise the obvious defence to the charges, that he was not guilty on the grounds of mental illness, because he holds the fixed delusional belief that he was under demonic attack and that he was acting in self-defence. Moreover, he has not responded to treatment in custody and remains distracted by chronic auditory hallucinations that would interfere with his capacity to follow any proceedings in a meaningful way or provide reliable instructions to his legal representatives." Applicable principles 22 In R v Presser [1958] VR 45 at 48 the Court described the following test of unfitness: " … is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs . . . to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formality. He needs to be able to understand. . . the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer the charge. Where he has Counsel he needs to be able to do this through his Counsel by giving any necessary instructions and by letting his Counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must . . . have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his Counsel, if any." 23 There is only one standard for assessing whether an accused person is fit to stand trial and that is the Presser test, which sets out the minimum requirement for an accused to stand trial. See also Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230. The fact that an accused person may have been better able to defend himself or herself had some treatment or medication been available to him or her is not a relevant issue as to fitness to stand trial: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284. 24 During the whole proceedings before me the accused remained quietly seated in the dock. He exhibited constant facial contortions. He made no contribution to what occurred, either in the form of any visible reaction or instruction to his counsel. He did not speak and appeared to me at least to be wholly disconnected from the proceedings. Although I had nothing approaching the significant advantage enjoyed by the medical specialists who examined him, my limited observation of the accused confirmed, to the extent possible, the opinions that have been expressed about him. 25 In forming my opinion and making my determination on the question of unfitness, I have had regard to the principles in R v Presser. In the light of the opinions expressed concerning the accused by Dr Steele and Dr Nielssen following their recent examinations of him, I find on the balance of probabilities that he is unfit to be tried for the offences with which he stands charged. Orders 26 In those circumstances, I confirm the orders that I made on 1 December 2009 as follows: 1. I find that the accused Brett Wayne Smith is unfit to be tried for the offence of the murder of Adam Catt on 20 November 2008.

2. I find that the accused Brett Wayne Smith is unfit to be tried for the offence of wounding Janell Hutman with intent to murder her on 20 November 2008.

3. In accordance with s 14 Mental Health (Forensic Provisions) Act 1990 I refer the accused to the Mental Health Review Tribunal.

4. I remand the accused to his former custody pending the determination of the Mental Health Review Tribunal under s 16 of the Act or until further order.

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