R v Webber

Judgment 1Geoffrey Webber, the Accused, is charged with one count of murder contrary to s 18(1)A of the Crimes Act 1900 in relation to the death of Luke Aaron Robins on 2 May 2012 at Brookvale. The question of the fitness of the Accused to be tried having been raised, this is an inquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 whether the Accused is unfit to be tried for the offence of murder. I note that under s 6 of the Act findings are to be on the balance of probabilities. 2The Crown case statement discloses that at about 11.30 on Wednesday 2 May the Deceased, who was aged 24, was sitting on a seat at the south bound bus stop on Pittwater Road, Brookvale, opposite Warringah Mall; he was waiting for a bus to Sydney City where he was to pick up his motor vehicle which he had left there the previous night. The Accused who was aged 25 was standing near him. They did not know each other. 3Witnesses who were sitting at the north bound bus terminal on the opposite side of Pittwater Road then saw the Deceased and the Accused standing at the bus shelter and facing each other. The Deceased called out, "Help me, help me." The Accused was holding a large black handled kitchen knife, about 30 centimetres in length, in his right hand. He was holding the knife with the blade of the knife towards the Deceased. 4The Deceased was holding the Accused's right forearm with both of his hands in an attempt to prevent the Accused stabbing him. The Accused stabbed the Deceased in the chest. The Deceased fell to the ground lying on his back. The Accused then straddled him, sat on the Deceased's stomach and stabbed him in the chest again. The Accused placed his left hand on the handle of the knife and continued to push the knife blade further into the Deceased's chest. The Accused then covered the Deceased's mouth and nose with his hand. 5Several witnesses telephoned the police who arrived on the scene within minutes. The Accused stood up from straddling the Deceased and ran on to a bus which had stopped at the bus stop. The Accused waved the blood covered knife at the driver. The police boarded the bus in pursuit. The Accused struggled with the police who were attempting to arrest him. He was wrestled from the bus on to the footpath area of Pittwater Road at the bus shelter. During the struggle he dropped the kitchen knife. It was later found on the road area of lane one next to the footpath. 6As the Accused was arrested and cautioned by the police he smiled and made grunting noises. Other police officers performed CPR on the Deceased until ambulance officers arrived. The Deceased was immediately taken to Royal North Shore Hospital. Resuscitation efforts were unsuccessful and the Deceased was pronounced dead within minutes of arriving at the hospital. 7The Accused was taken to Dee Why Police Station where he was entered into police custody. He declined to seek legal advice or to be interviewed. He was charged with murder, remanded in custody and taken to Long Bay prison where he was admitted to Long Bay Hospital. 8Dr Rebecca Irvine, a forensic pathologist, conducted an autopsy on the Deceased the following day. She found a single stab wound on the Deceased's left upper chest. It was 25-30 centimetres in depth and there were surrounding associated abrasions suggestive of a hilt or guard mark. 9There were two distinct incisions to the cartilage sub adjacent to the stab wound indicating at least two passes of the blade through this area. The wound perforated both lobes of the left lung. There were 1750 millilitres of blood within the left chest cavity and the left lung was collapsed. The wound tract penetrated the left lateral chest wall and very likely incised the intercostal artery. 10Multiple sharp force defensive injuries were found on the Deceased's hands. Blunt force injuries were also found to his face, trunk and hands. Dr Irvine found that the Deceased's death was caused by the stab wound to the chest. 11The legal test on which unfitness is to be judged is not in doubt. It is to be found in the R v Presser [1958] VR 45 at 48 which was approved in Ngatayi v R (1980) 147 CLR 1 at [8] and Kesavarajah v R (1994) 181 CLR 230 at [246]. In Robinson v R [2008] NSWCCA 64, RS Hulme J at [24] helpfully summarised the criteria as follows: A person accused needs to be able - (i) To understand what it is that he is charged with; (ii) To plead to the charge; (iii) To exercise his right of challenge; (iv) To understand generally the nature of the proceedings, namely, that it is an enquiry as to whether he did what he is charged with; (v) 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 formalities; (vi) To understand ... the substantial effect of any evidence that may be given against him; (vii) To make his defence or answer to the charge. 12There is before me a report by Dr Grant Sara from North Sydney Local District Health who has provided background on the Accused in terms of his mental health issues. The information that Dr Sara has provided is that the Accused is the youngest of six children. Both his parents suffer from serious psychiatric illness. His father reportedly had schizophrenia and his mother had a chronic recurrent psychosis which has been variously described as bipolar disorder or schizophrenia. His sister also had recently developed a psychotic illness in the period up to 2005. 13Following the separation of his parents when he was five years of age, the Accused was raised, in part, by his older siblings due to the fluctuating illness of his mother, and was said to have experienced physical and sexual abuse. A different history in that regard was provided to Dr Allnutt by the Accused. 14Dr Sara said that due to the Accused's mother's illness the children were made wards of the State when the Accused was about 15 and he spent his late adolescence in supported or group homes. From the ages of 15 to 18 he was in contact with child analysts and mental health services with symptoms of depression and social isolation. He was assessed as suffering from a dysthymic disorder and had a period of psychotherapy. Although he made it to year 12 at school, he dropped out of school during that year. 15He has been examined by two psychiatrists for the purposes of determining his fitness to stand trial. He was first examined by Dr Richard Furst on 15 June 2012 on behalf of the Legal Aid Commission. Dr Furst reported on 25 June 2012. He provided some family background which also included a history of domestic violence in the family home, exacerbated by the Accused's father's mental health issues. When Dr Furst examined the Accused he said that the Accused did not answer any questions during the assessment. He did not respond to simple questions such as how old he was or where he was living at the time of his arrest. He provided no details about the alleged offence in question nor any explanation of his actions. 16Dr Furst obtained his information about the Accused's background and about the offence from other sources, including the Legal Aid Commission, Justice Health medical file and the police statement of facts. 17Dr Furst concluded Mr Webber was a mentally ill person who was suffering from severe paranoid or catatonic schizophrenia. He was mute and unresponsive during the assessment, making it impossible to gauge his understanding of charges he is facing for the legal process ahead of him. 18Dr Furst concluded: Having regard to the standards of Presser [1958] VR 45 and Kesavarajah (1994) A Crim R 100, I was of the opinion that he was not fit to be tried. 19Dr Furst examined the Accused again on 19 October 2012. He reported on 9 November in relation to that examination. On this occasion the Accused spoke to Dr Furst and provided some information to him about his background, his feelings and well-being as at the time of the assessment. Dr Furst reported that the Accused was slow in his responses and movements and was somewhat restless during the assessment and was distractible. He was able to communicate and no longer catatonic but he was slow in his manner and Dr Furst thought he was still paranoid. 20Dr Furst's conclusion with regard to his fitness was that the Accused was a mentally ill person who was suffering from severe paranoid or catatonic schizophrenia. He had shown some improvement over the months since Dr Furst had first seen him. He was aware of the charge he was facing. He was aware that he would be required to enter a plea and was aware that a plea of guilty would lead to him being sentenced and a plea of not guilty would lead to the matter going to trial. He lacked understanding as to the nature and effects of the mental illness defence which Dr Furst thought might be available to him. 21Dr Furst said that the Accused thought he could explain his version of events to his lawyer but had only a superficial understanding of the legal process, the effect of giving instructions and legal advice that have been provided to him. He could not explain the role of the Judge in a criminal trial or distinguish this role from the role of the jury. He was not sure how many people would be on a jury and he was not aware of his right to challenge in the selection of a jury. The Accused thought that he could follow things in court but Dr Furst commented that there were signs of distractibility during the assessment period and the Accused may well be vulnerable to the effects of his ongoing paranoid delusions when attempting to follow evidence or attend to other legal matters in a trial setting. 22Dr Furst said, although the Accused had shown some signs of improvement, he was still psychotic and may well struggle to appreciate his legal situation, give instructions, accept legal advice and follow what was said in court. Having regard to the standards of Presser and Kesavarajah, Dr Furst was of the opinion that the Accused was not fit to be tried. He thought he might become fir to be tried within the next 12 months if he continued to improve. 23The Accused was then examined by Dr Steven Allnutt on 1 April 2013 on behalf of the DPP. Dr Allnutt examined the Accused on 22 and 28 March and reported on 1 April. The Accused spoke at some length to Dr Allnutt providing details of his background and it was during that time that he told Dr Allnutt that he was not exposed to domestic violence, sexual abuse or physical abuse. It is not necessary to resolve the inconsistency in that evidence for the present purposes. 24Dr Allnutt concluded that the Accused manifested symptoms consistent with a paranoid schizophrenia and he noted that there was a long history of psychotic symptoms characterised by persecutory delusions. There was also some evidence of mood disturbance associated with the psychotic symptoms in the form of depression and thought process disturbances characterised at times by catatonia, perseveration and delayed or slowed thoughts processes. He thought a differential diagnosis would include schizoaffective disorder. 25Dr Allnutt said this in relation to his fitness to stand trial: In my opinion the defendant manifests capacity to understand the nature of charges... - he understood the role of the Judge, the jury, his lawyers, the prosecution, the various pleas available to him and the consequences of the pleas as well as the purpose of the hearing; he had capacity to understand the substantial effect of any evidence - he understood what evidence was and that it could be used for and against him. In my view he has capacity to plea[d] to the charge... - he understood what a jury was and in my view, with the assistance of counsel, he could exercise his right of challenge;... I have concern about his capacity to give necessary instructions and let his counsel know his version of facts or tell the Court what it is - while the defendant is improving, he is in an early phase of recovery and still remains psychotic. I am of the view that the quality of his attention remains impaired and there is unacceptable risk he will be unable to consistently and adequately follow proceedings in a trial. I believe the defendant probably has capacity to plea[d] to the charge, but if the matter went to trial he would be unfit to stand trial at this stage on balance. 26The Accused's solicitor, Dianne Tipper, gave evidence before me. She was admitted as a solicitor in 1991 and had extensive experience in mental health issues. For eight years she was the presiding member of the Guardianship Tribunal. She said that on Tuesday of this week she spoke to Dr Furst who, in turn, had spoken to Dr Chan, the Accused's treating psychiatrist. Dr Chan had said that in his opinion the Accused was still not fit to stand trial, that he was not very communicative and that there were still present psychotic symptoms. 27Ms Tipper saw the Accused in the cells this morning before the hearing. She asked him questions consistent with what is required for the Presser test. His answers to the questions disclosed that he knew he was at court today for a fitness test, he knew that a Judge decides the sentence, that a jury which consists of 12 people decided whether you were guilty or not guilty. 28She said in respect of a number of questions he did not provide verbal answers, there was little eye contact but he nodded his head in a negative way that indicated that he did not understand the following matters: He did not understand what pleading was about, he did not understand challenging jurors, he did not have an understanding of evidence and he did not understand what his defence was, if any. He did not understand what evidence was. Ms Tipper was also of the opinion, having spoken to him, that he did not understand generally what was going on and that he would not be capable of giving instructions. 29It is apparent from the reports of the psychiatrists that the Accused's position, at least up until and including the time that Dr Allnutt had seen him, had been one of consistent improvement, albeit that even when Dr Allnutt saw him, Dr Allnutt still considered that he was not at the stage where he was fit to stand trial, in particular because of what Dr Allnutt thought would be his difficulty in providing instructions. 30I accept the evidence of Ms Tipper, particularly based on her long experience in relation to matters such as these. It is apparent that, at least as of today, there has been something of a decline in the Accused's position, in that matters that he understood at the time Dr Allnutt saw him in March, he now is no longer able to understand or explain. It may well be that that is simply a result of the illnesses that he suffers and their fluctuating nature. 31I accept the evidence of Dr Furst and Dr Allnutt and also Ms Tipper that at the present time the Accused is not fit to be tried for the offence with which he is charged. In reaching that conclusion I have particular regard to those matters from Presser and Kesavarajah summarised by Hulme J in Robinson. 32In those circumstances I make these orders: