R v Wilson

Judgment (On ADJOURNMENT OF inquiry concerning fitness of Accused to be tried - t12) 1JOHNSON J: This is an inquiry into the fitness of Joseph Rowan Wilson to be tried on charges of murder, solicit to murder, and commit act intended to cause a person to give false evidence. The trial of the Accused is presently fixed to commence on 4 November 2013 at the Wollongong Supreme Court, with a four-week estimate. 2The murder is alleged to have been committed on 4 November 2008. The Accused was charged with that offence on 25 November 2009. The solicit to murder charge relates to events in January and February 2010 and the act with intent to cause a person to give false evidence charge relates to events between December 2009 and February 2010. 3Since 2011, if not earlier, issues of the fitness of the Accused to be tried have been raised for consideration in this Court. In November 2011, Latham J commenced an inquiry into fitness which was adjourned until April 2012. The issue at that time involved the compliance or otherwise of the Accused with a treatment regime which was considered necessary for paranoid schizophrenia. 4Dr Olav Nielssen had examined the Accused on a number of occasions on behalf of the defence. Professor David Greenberg had examined the Accused on a number of occasions on behalf of the Crown. The consensus as between the psychiatrists in November 2011 was that, if time was allowed for the Accused's medication regime to stabilise, then he may be fit to be tried. 5On 2 April 2012, Latham J determined, on the basis of the view of both psychiatrists, that there was no longer an issue as to the fitness of the Accused to be tried so that, for the purpose of s.8(2) Mental Health (Forensic Provisions) Act 1990, an inquiry was no longer needed. 6A trial date was fixed for October 2012. In early October 2012, the matter came before Schmidt J. It appears that Dr Nielssen had further examined the Accused and had formed the view that he was again unfit to be tried. 7It emerged that the Department of Corrective Services had transferred the Accused to the Goulburn Correctional Centre, where the Accused ceased taking his medication. On 15 October 2012, on the basis of the evidence which once again established that the Accused was not medication compliant, Schmidt J determined that the Accused was unfit to be tried and referred the matter to the Mental Health Review Tribunal ("the Tribunal"): R v Wilson [2012] NSWSC 1247. 8In accordance with applicable statutory procedures, the Tribunal came to consider the Accused's matter. The reasons of the Tribunal of 7 March 2013 reveal the steps that had been taken with respect to the Accused between October 2012 and March 2013. Of particular importance was the fact that the Accused had been housed, for a significant continuous period, in the Hamden Unit at the Metropolitan Remand and Reception Centre at Silverwater ("MRRC"). 9Dr Usman Malik, psychiatrist, had provided a continuous period of treatment and supervision of the Accused's medication. In that setting and with a consistent level of treatment, the Accused was compliant with his medication regime (after some early resistance) and Dr Malik expressed the opinion that the Accused was fit to be tried but could become unfit if he did not take his medication. 10The Tribunal had before it all the reports of Dr Nielssen and Professor Greenberg, together with oral evidence from Dr Malik and the clinical nurse consultant who had played a part as well in the treatment of the Accused. 11The Tribunal determined, for the purpose of s.16 Mental Health (Forensic Provisions) Act 1990, that the Accused will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences for which he was charged. The Tribunal made an order under s.47(1) Mental Health (Forensic Provisions) Act 1990 that the Accused be detained in the MRRC to receive care and treatment. In that respect, the Tribunal had been informed of the recommendation of Dr Malik that the Accused should remain in detention at that place in the Hamden Unit, with appropriate treatment being continued by Dr Malik. 12Professor Greenberg examined the Accused on 22 and 29 April 2013 at the MRRC. In a report dated 30 April 2013, Professor Greenberg referred to the Accused's chequered history with respect to medication compliance. Professor Greenberg referred to the fact that the Accused was then receiving oral Solian, an antipsychotic medication. Professor Greenberg noted that the Accused continued to suffer from bizarre fixed encapsulated delusions, despite receiving psychiatric treatment. However his delusions, although bizarre, appeared to Professor Greenberg to be encapsulated, and did not appear to intrude on his understanding, for the purpose of application of the well-known criteria for fitness to be tried arising from the decision in R v Presser (1958) VR 45. 13Professor Greenberg expressed the opinion that the Accused was then fit to be tried, but observed that a review of his fitness to stand trial may need to be undertaken if his legal representatives detected any difficulties concerning fitness. Professor Greenberg observed that it was imperative that the Accused remain on his antipsychotic medication during Court proceedings. 14The matter was placed in the arraignment list before Latham J on 3 May 2013, when the trial date was set for 4 November 2013. The necessary inquiry as to fitness was fixed for today. 15A report from Dr Nielssen dated 1 August 2013 indicates again that the Accused is not presently fit to be tried. 16Dr Nielssen interviewed the Accused by audio-visual link on 31 July 2013. For reasons that are not able to be explained today, the Accused at that time was housed again at the Goulburn Correctional Centre. That Correctional Centre had been the facility in which the Accused had been housed in the past when he did not comply with his medication regime. Moreover, the detention of the Accused in that location was contrary to the view expressed (indeed, the order made) by the Tribunal on 7 March 2013 that the Accused be housed at the MRRC, no doubt in the Hamden Unit. 17Why it is that the Accused was no longer housed at the MRRC but, by the end of July 2013 was located at the Goulburn Correctional Centre, is simply not known. What has happened since this transfer is entirely predictable. The Accused has not been taking his medication and he was exhibiting florid psychotic behaviour. 18Dr Jeremy O'Dea from Justice Health informed Dr Nielssen that he had visited the Accused at the Goulburn Correctional Centre and had formed the view that he was acutely mentally ill, probably because he had not taken antipsychotic medication, with Dr O'Dea certifying the Accused under relevant mental health legislation. 19At some time since 31 July 2013, the Accused has been brought to Sydney for the purpose of today's inquiry. The Accused is not presently in Court. His counsel, Mr Ainsworth, has informed the Court that he spoke to the Accused in the cells associated with this Court complex this morning. The words and conduct of the Accused were aggressive, to say the least. Indeed, Mr Ainsworth informs the Court that the Accused has withdrawn instructions from him. The Court is grateful to Mr Ainsworth for remaining at Court whilst the inquiry has proceeded to the extent it has today. It seems clear from the information provided by Mr Ainsworth, and also from associated sounds discernible from the Court, that the Accused is in a highly agitated state. All of that suggests that medication compliance is not in place. 20The position under the legislative scheme is as follows. If the Court found that the Accused is presently fit to be tried, then by operation of s.30(1) Mental Health (Forensic Provisions) Act 1990, the proceedings would go forward with the trial scheduled to commence on 4 November 2013. 21If the Court concluded that the Accused was unfit to be tried, then s.30(2) of the Act would come into play. Section 30(2)(a) requires the Court to conduct a special hearing in the case of an accused person who has been detained in custody as an inmate or in a mental health facility as a forensic patient, for a period or continuous periods in the aggregate of not less than 12 months, and in respect of whom a special hearing has not been held. 22If the Accused did not fall into that category, then s.30(2)(b) would provide a discretion for the Court to conduct a special hearing, if such a hearing had not already been held, or to order that the Accused be returned to custody or a mental health facility from which he was taken. 23The statutory scheme is clear. Once an accused person has been found unfit to be tried and has proceeded to the Tribunal, and that Tribunal determines fitness, then the matter returns to the Court via s.29 of the Act. Once the Crown has expressed an intention to proceed with the proceedings, and requests the Court to hold a further fitness inquiry, then the Court proceeds to do so. That is the point reached so far in the case of this Accused. 24Accordingly, if the Accused is found fit to be tried, the trial fixed for 4 November 2013 would proceed. If found unfit to be tried, and if he falls within the 12-month or more class in s.30(2)(a), then a special hearing would proceed at the listing to commence on 4 November 2013. 25The difficulty that the Court has at this moment is that the Accused is capable of being fit to be tried, if steps are taken in particular with respect to his medication regime. The prospect of his medication regime being complied with is related clearly to the place in which he is being housed. Whatever has happened between April and July 2013, concerning the placement of the Accused within the custodial system, has been unsatisfactory and contrary to the proper administration of justice. 26The course I propose to take is to not proceed to determine the issue of fitness today. Rather, I propose to adjourn the inquiry to a date in September 2013. The Crown had informed the Court that Professor Greenberg is in a position to assist further with respect to the fitness of the Accused. The Court is grateful for the report of Dr Nielssen of 1 August 2013 which is the most recent specialist assessment of the Accused. However, the way forward, it seems to me, is to engage the assistance of Professor Greenberg (the Director of Community and Court Liaison Service, Justice Health) to assess the Accused, and to provide information as to what has happened with respect to the Accused in the custodial system, and in particular by way of treatment and care by Justice Health, and what is to happen in the future in that respect. 27As these extended remarks make clear, there is a close relationship between the fitness of the Accused to be tried and the medical resources available at the place where he is detained. I propose to make a strong recommendation that the view of the Tribunal expressed in March 2013 should be acted upon, and that unless there is some very good reason which officers of Justice Health have to take a different course, the Accused ought be housed in the Hamden Unit at the MRRC, and receive care and treatment as proposed by the Tribunal. 28I will also request that Professor Greenberg, for the purpose of giving evidence to assist the Court on the next occasion, ascertain from Justice Health records what has in fact been done with respect to the Accused since March 2013. The Court would be assisted by information as to why the Accused was transferred from the MRRC to the Goulburn Correctional Centre, and what steps were taken by Justice Health with respect to his treatment, and the continuation of his medication regime, in that period. The Court would be grateful if Professor Greenberg could, as well, ascertain the assessments apparently made by Dr O'Dea at the Goulburn Correctional Centre and what steps were taken consequential upon Dr O'Dea's certification of the Accused, as summarised in the most recent report of Dr Nielssen. 29I will ensure that copies of these reasons are furnished to the Crown and Mr Ainsworth and to the instructing solicitor for Mr Ainsworth, so they can be provided to any interested persons, including Professor Greenberg and Dr Nielssen. It may be that Dr Nielssen has something further that he would wish to say on these matters. 30On the next occasion, I will conclude this inquiry and make a finding as to the fitness or unfitness of the Accused to be tried, and then determine what further orders ought be made under s.30 of the Act. 31I request further that the Crown, with the assistance of Professor Greenberg, calculate periods relevant to the application of the formula contained in s.30(2)(a) of the Act. If the position is that the Accused fits within that category and is unfit to be tried, then a special hearing is mandatory. I say no more about that for the moment. 32I will adjourn the inquiry until 9 September 2013. If it is the case that Professor Greenberg is unavailable to attend on that day, then I am prepared to make an order in Chambers varying the next listed day to 10 or 11 September 2013. I am conscious of the demands on Professor Greenberg's time but the Court would be very much assisted by his attendance on the next occasion. 33I make the following orders: (a)The inquiry is adjourned until 10.00 am on 9 September 2013. (b)An order is made unde s.77 Crimes (Administration of Sentences) Act 1999 for the attendance of the Accused on that occasion. (c) Bail is refused. 34I recommend in the strongest terms that the Accused be housed in the Hamden Unit at the MRRC, and that he receive treatment, including appropriate medication, under the supervision of Dr Usman Malik or such other psychiatrist as may be considered appropriate to provide such treatment.