I am conducting an inquiry into Mr Cox's fitness to stand trial for the murder of his friend, Wayne Burton-Smith--
ACCUSED: I thought it was manslaughter, your Honour.
--under the provisions of Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act").
As has been pointed out by Counsel, the question of Mr Cox's fitness was raised before he was arraigned for trial in this Court and the arraignments judge, Johnson J, directed that a fitness inquiry be held under the Act. Having had the advantage of reading the material contained in Exhibit B and Exhibit 1, I am well satisfied that the question of Mr Cox's unfitness to be tried has been raised in good faith. I bear in mind the provisions of section 11 and section 12 of the Act.
The indictment presented in Court this morning, to which no plea has been taken, is in the following terms: "that Mr Cox, between 29 April 2016 and 3 May 2016 at Sutherland, in this State, did murder Wayne Burton-Smith". I have also had the benefit of receiving, as Exhibit A, the prosecution case statement. It is unnecessary for me to descend into detail about the circumstances giving rise to this charge, the police investigation, or the evidence that has been gathered.
As I indicated earlier, Mr Smith and Mr Cox were friends and had been known to each other for some time. Mr Smith, as at the date of his death, was 60 years. Mr Cox is currently 51. Mr Smith was released from the Concord Hospital Mental Health Unit on 29 April 2016, having been an inpatient there since 4 April. Upon release he was conducted to Tempe railway station, from where he caught the train to Sutherland. He was last seen alive on the afternoon of 29 April 2016 in the company of Mr Cox. I infer that they went to Mr Cox's residence in Sutherland and, from what is contained in the Crown case statement, including statements attributed to Mr Cox on or after 3 May 2016, it appears that the prosecution allege that Mr Cox bashed Mr Smith severely about his head with a metal bed end. When crime scene officers and detectives attended the premises on the afternoon of the 3rd and early morning of 4 May 2016, it was very apparent that Mr Smith had been dead for some time.
His death and some of the circumstances apparently surrounding it came to light in this way. On 3 May 2016 Mr Cox attended the Sutherland Hospital. I will recount in a moment that Mr Cox was well-known at the hospital because over many years, since 1984, he had received treatment there as a mental health patient.
ACCUSED: Your Honour--
He was in a state of some agitation and it took some time for hospital staff to deduce why. Eventually they understood that Mr Cox was informing them that Mr Smith had died and that he, Mr Cox, may have had something to do with that circumstance. I will say no more about those factors, other than to say the hospital staff facilitated Mr Cox making a phone call to Miranda police station. After some initial misunderstandings perhaps (I interpolate that Mr Cox has communication difficulties according to the psychiatrists) it became apparent what circumstance Mr Cox was seeking to report. He was subsequently arrested and charged and has been in custody on remand ever since. My understanding of the evidence is that he is currently held in the Long Bay Hospital receiving treatment whilst in prison.
I have received the benefit of clear, concise and helpful written submissions from Ms Loukas of Senior Counsel concerning the nature of the inquiry that I am conducting today. As is well-known, the criteria at law by which a court determines whether a person accused of a crime is fit to be tried for it, were expressed by Smith J in R v Presser [1958] VR 45. I think that the classic statement made by Smith J at page 48 is well-known and understood and it is unnecessary for me to read it on to the record today. It is set out in full at paragraph 6 of Ms Loukas's submissions.
What Smith J said about this topic has been approved by the High Court of Australia in Ngatayi v The Queen (1980) 147 CLR 1 and a case of Kesavarajah v The Queen (1984) 181 CLR 230.
ACCUSED: What is this about, your Honour?
HIS HONOUR: It is about your fitness to be tried, Mr Cox.
Mr Cox has been examined by two psychiatrists: by Dr Olav Nielssen, at the request of his solicitor, and by Dr Jonathan Adams, at the request of the Crown. Both of these experts are eminent forensic psychiatrists of long experience in the courts in this State. There is no doubt whatsoever from their reports that, since at least April 1985, Mr Cox has been diagnosed as suffering from the mental disease usually referred to as paranoid schizophrenia. Both Dr Nielssen and Dr Adams are of the opinion that his form of the disease falls into the treatment resistant category. I might say that from his demeanour and the comments he is making in court today I am well satisfied that, were any corroboration required, what each of Dr Nielssen and Dr Adams say about their findings on the mental state examination is correct. I should say that Dr Nielssen, in particular has also pointed out--
ACCUSED: No, no, no--
--that in 1987--
ACCUSED: --they don't know me.
--Mr Cox was involved in a motorcycle accident, probably resulting in an acquired brain injury--
ACCUSED: They don't know me.
--which affects his neurocognitive function. Although Dr Nielssen also pointed out--
ACCUSED: They don't know me.
--given the nature of Mr Cox's chronic schizophrenia, it is difficult to separate the neurocognitive consequences of schizophrenia from--
ACCUSED: More than 85.
--organic brain damage. Moreover, it is the opinion of both psychiatrists that Mr Cox suffers from chronic substance abuse disorder.
Dr Adams points out--
ACCUSED: He doesn't know me.
--that since his first admission to Sutherland Hospital, which was as long ago as 1984--
ACCUSED: Is this going to be on TV?
--the clinical records concerning Mr Cox's schizophrenia have accumulated to some eight lever arch folders. He has had long periods of extended inpatient treatment at Sutherland Hospital and also at the Bloomfield facility at Orange. His last treatment as an inpatient--
ACCUSED: Sure you've got--
--was as recent as March 2016, from about 16 to 29 when he voluntarily discharged himself.
ACCUSED: No, I didn't.
Dr Nielssen also had the benefit of a consultation with Mr Cox's sister. I have no question in my mind that Dr Nielssen was well-placed to make an assessment in his case.
It seems to me that it is of particular relevance to the matter that both experts expressed the view, more or less in similar terms, that, as part of his condition, Mr Cox has a marked schizophrenic communication disorder. Dr Nielssen said, for example, that during his examination of Mr Cox, Mr Cox was distracted, as though by hallucinations, asked for some questions to be repeated, and gave answers that were vague and often difficult to follow; he repeated stock phrases in a stereotypical way, which were often ambivalent or contradictory. Dr Nielssen said that Mr Cox spoke continuously in a nonsensical way--
ACCUSED: What does that mean?
--while Dr Nielssen was making notes and examining documents. What he says is similar to my lay impression of Mr Cox's presentation in court today. It is clear to me from those particular difficulties that Mr Cox would have difficulty, in accordance with the Presser criteria, particularly in following the process in court, in instructing his counsel as to the circumstances giving rise to his defence and in providing instructions as to available evidence which might assist his defence. Dr Nielssen expressed it this way:
"Mr Cox was assessed to be unfit for trial on the basis that the severity of his communication disorder in particular his ambivalent and contradictory answers would prevent him from responding to the charges and in a consistent way. His communication disorder would also affect his ability to follow the proceedings, his ability to understand and respond to legal advice, and would prevent him from providing reliable instructions to his legal representatives. Based on the information in the medical records it is unlikely that he will recover sufficiently in the next twelve months in order to be fit for trial."
ACCUSED: Fuck off.
Dr Adams said that his concern related to the persisting severe symptoms of mental illness, in the form of thought disorder, cognitive impairment and likely auditory hallucinations and underlying delusional beliefs. He thought that these matters would impact upon Mr Cox's capacity--
ACCUSED: Overpaid fucking council worker and he fucked Aboriginal girls and I didn't fucking lie. Fuckin'--
--to understand the allegations that were put against him and follow legal proceedings in a general sense. He also thought, given the fragility of his mental state, that Mr Cox would have difficulty coping with a trial of any length.
ACCUSED: Fucking fuck.
As I said, his professional opinion seemed consistent with my lay observation of Mr Cox's severe disability.
ACCUSED: Shoot people. Have you got his police records to look at? Well, get them.
It should be noted that whilst in custody Mr Cox is receiving the treatment that he was not always compliant with it in the past. But it does not seem to have made any real difference to the severity of his symptoms.
For these reasons, I make the following findings:
1. I am satisfied that the question of Mr Cox's unfitness to be tried has been raised in good faith.
2. The accused, Ronald Ian Cox, is unfit to be tried for the murder of Wayne Burton-Smith occurring at some time between 29 April 2016 and 3 May 2016.
I make the following orders:
1. Under section 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) Ronald Ian Cox is referred to the Mental Health Review Tribunal for a determination under section 16 of the Act.
2. Remand the accused in custody pending the Tribunal's determination in accordance with Order 1.
3. Direct the Registrar to provide the Registrar of the Tribunal with:
1. (a) A copy of my reasons, findings and orders;
2. (b) The transcript of these proceedings;
3. (c) A copy of the Crown papers tendered in the folder marked "Exhibit A"; and
4. (d) A copy of the reports of Dr Olav Nielssen of 14 January 2017 and of Dr Jonathan Adams of 16 May and 28 July 2017.
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Decision last updated: 23 August 2017