Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW
File Number(s): 2014/201499
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Judgment
HIS HONOUR: The accused, Laine Elizabeth Whittall, is charged with the murder of Kevin James Fawcett at Gosford on 7 July 2014. A trial date has not yet been fixed.
A question has been raised as to the accused's fitness to be tried for the offence. This is an inquiry as to whether or not she is unfit to be tried. The provisions of Pt 2 of the Mental Health (Forensic Provisions) Act 1990 apply.
The question of whether a person is fit to be tried is determined in accordance with the well-known criteria set out in R v Presser [1958] VR 45. Also relevant is the issue raised in the High Court in Kesavarajah v R [1994] HCA 41; 181 CLR 230.
The accused is represented in these proceedings by Mr Todd of counsel. Tendered, without objection, were five reports written by two forensic psychiatrists.
Dr Anthony Samuels, who was engaged on behalf of the accused, provided a report dated 24 April 2015 arising from his consultation with the accused on that date and his review of various documentary material. In this report he said:
"Taking into account the R v Presser [1958] VR 45 criteria, it is my view that, although Ms Whittall appears superficially to meet many of the Presser standards, I believe she is currently unfit to stand trial and it is very likely that her persecutory delusional ideation and elevated mood state will impact upon her ability to give appropriate instructions to her solicitor, to trust her solicitor to act in her interests, and may also impact upon the type of plea that she is likely to make. I think it is likely that following a period of treatment in a declared mental health facility her mental state will improve and that in the course of the next six to twelve months she will become fit to proceed to trial.
In addition, at the present time taking into account Kesavarajah v R [1994] HCA 41; 181 CLR 230, it is likely that fluctuations in her mental state currently will severely interrupt the trial process."
Dr Samuels provided a further report dated 28 August 2015 following his interview with the accused that date. Dr Samuels noted that he had been contacted by the accused's solicitor, a very experienced solicitor in these matters employed by Legal Aid New South Wales, who indicated that she considered that the accused may now be fit to plead and asked Dr Samuels to reassess the situation. In this report, Dr Samuels concluded as follows:
"I have reviewed the components of the Presser criteria with Ms Whittall and I am satisfied that she is currently fit to stand trial and in regards to Kesavarajah criteria she should be able to tolerate the trial process. Her mental state, however, remains somewhat fragile and unstable from time to time and she may need a break from the court proceedings. It is quite possible that if she is cross-examined she could become very distressed and if called to testify she may require frequent breaks."
The Office of the Director of Public Prosecutions engaged Dr Jeremy O'Dea to report on the issue of the accused's fitness or otherwise and he interviewed the accused on 1 November 2015. The result of his interview and his review of certain documentary material is set out in his report of 15 February 2016. Dr O'Dea said:
"I have diagnosed Ms Whittall as suffering from a Bipolar Affective Disorder with a current manic episode characterised by, amongst other symptoms and signs, an elevated affect, pressured speech, flight of ideas and paranoid delusions, at least regarding prison officers and Justice Health staff with a differential diagnosis of a Schizo-Affective Disorder.
In addition, Ms Whittall has a history of a Substance Use Disorder, including amphetamine and heroin use disorders.
…
… [A]t the time of my interview on 1 November 2015, she presented as manic, with ongoing elevated affect, pressured speech, flight of ideas, and at least residual paranoia; with this manic episode only partially responsive to treatment to date.
As such, and taking into consideration the Presser criteria, I would have significant concerns regarding Ms Whittall's fitness, from a psychiatric perspective, to be tried.
...
… [D]ue to her current manic mental state, I would have significant concerns regarding her ability to concentrate, think clearly and logically, and to exercise behavioural control and judgment, in order to adequately follow the Court proceedings and to instruct her solicitors accordingly. In addition, I would have significant concerns regarding her ability to cope with the stress of the Court proceedings with the significant risk of further exacerbation of her Bipolar Disorder through such a process at the present time.
As such, and on balance, I would consider that at least at the time of my assessment on 1 November 2015, Ms Whittall was not fit, from a psychiatric perspective, to be tried.
However, with more assertive psychiatric treatment, including with admission to a secure forensic psychiatric facility for more intensive, and long-term, psychiatric treatment of her Bipolar Affective Disorder, I would be optimistic regarding the likelihood of her condition improving further and to the extent that she would become fit, from a psychiatric perspective, to be tried within the next 12 months."
Dr Samuels saw the accused again on 18 March 2016, albeit via audiovisual link. He had been provided with a copy of the report of Dr O'Dea of 15 February 2016. In his report dated 29 March 2016, he said:
"Ms Whittall's mental state is much improved but has not entirely stabilised. She acknowledges that her current level of anxiety is a problem. Ms Whittall is very keen to be found fit and to go to Court and for the trial proceedings to move forwards.
… My main concern in relation to her fitness relates to the question of her 'being able to make her defence or answer to the charge', and as to whether she is able to follow the course of the proceedings and to be able to understand what is going on in the Court in a general sense. The fact that she is desperate to be found fit and stated 'I don't want to let my solicitor down either' raises further concerns in my mind that she is trying to portray herself as being better than she actually is. These concerns are compounded by the fact that by her own admission her mental state fluctuates significantly in the course of a week.
In terms of Kesavarajah v R [1994] HCA 41; 181 CLR 230 criteria, I have additional concerns and it is very likely that in the course of a lengthy trial, fluctuations in her mental state could impact upon her ability to participate in the proceedings.
It is possible that with further, more assertive, treatment and a further review of her medication including use of additional mood stabilisers, further improvements and stabilisation of her mental state could occur. At this point I would regard her as being unfit to be tried."
Dr O'Dea saw the accused again on 25 May 2016. In his report on 27 May 2016, he said:
"It would appear that Ms Whittall has responded well to the ongoing psychiatric treatment program in custody, including the recent change of medication to Zyprexa, with improvement in her affect, attention and concentration, anxiety management and general thinking and composure.
However, despite this improvement, she remains somewhat elevated and irritable in affect with continued vulnerability in her thinking and overall stress management, with her Bipolar Affective Disorder yet to come under adequate control.
As such, and as before, and taking into consideration the Presser criteria and the potential impact of the specific stressor of a trial on Ms Whittall's mental state, I would consider that Ms Whittall remains unfit to be tried at the present time.
However, with continued assertive psychiatric treatment including continuation of the current psychiatric medication and consideration of ongoing psychiatric treatment in a secure psychiatric hospital, I would remain optimistic regarding the likelihood of her condition improving further and to the extent that she would become fit, from a psychiatric perspective, to be tried, within the next 12 months."
I was informed by Mr Todd this morning that Dr Samuels had seen the accused this morning and remained of the view he expressed in his last report.
The Crown Prosecutor, in helpful written submissions, has indicated that the anticipated length of this trial would be three to four weeks and the issues anticipated at trial would be whether the accused should be found not guilty on the grounds of mental illness, or whether the partial defence of substantial impairment by abnormality of mind might be made out.
It was submitted by the Crown that the medical evidence unanimously supported a finding that the accused is currently unfit to be tried. Mr Todd, on behalf of the accused, has accepted the correctness of that concession by the Crown.
I am of the view that the concession is both fair and soundly based. Accordingly, I conclude that the accused is currently unfit to be tried.
I make the following orders:
1. Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990, ("The Act") I find that the accused, Laine Whittall, is unfit to be tried for the offence of murder;
2. In accordance with s 14 of the Act, I refer the matter to the Mental Health Review Tribunal;
3. Pursuant to s 14(b)(iii) of the Act, I remand the accused in custody pending further orders of the Court;
4. I direct the registry to provide the following documents to the Mental Health Review Tribunal:
(a) copy of this judgment;
(b) copy of the exhibits tendered to this inquiry;
(c) copy of the indictment and the Crown Case Statement;
(d) copy of the written submissions of the Crown Prosecutor.
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Decision last updated: 31 May 2016