Consideration: counts 2 and 3 - defence of mental illness
49It is uncontroversial that every man and woman is presumed to be sane and to possess a sufficient degree of reason to be responsible for his or her crimes until the contrary is proven. In order to establish a defence on the ground of mental illness it must be clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or if he did know it, that he did not know that what he was doing was wrong: R v M'Naghten (1843) 8 ER 718.
50In cases involving a jury the jury would not be required to consider the defence of mental illness until it were satisfied that the offence had been proved beyond reasonable doubt: R v Stiles (1990) 50 A Crim R 13. I also observe that in considering whether an accused person committed the offence(s) charged, a jury would be instructed to ignore the question of mental illness when determining whether the accused had the intent charged, relying upon the presumption of sanity. In this way they may acquit on the defence of mental illness if they find that the accused did not have the necessary intention as a result of the defect of reason. If there were evidence of mental illness, a jury would not consider the question of intention or voluntariness separate and distinct from the issue of mental illness.
51A "disease of the mind" is any disease capable of affecting the mind, whether it has a mental or physical origin and whether or not the defect of reason is temporary or permanent: R v Kemp [1957] 1 QB 399. Whether the condition amounts to a disease of the mind is a question of law: R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 60. A "defect of reason" is the inability of the accused to think rationally: R v Porter [1933] HCA 1; (1936) 55 CLR 182 at 189-190; Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 367.
52A person does not know the nature and quality of his (or her) act if he does not know the physical nature of what he is doing or the implications of it. A person does not know what he was doing was wrong when he does not know that it was wrong according to ordinary standards of right or wrong adopted by reasonable persons (see Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 367), or where the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: Sodeman v The King (supra) at 215; R v Pangallo (1989) 51 SASR 254.
53Medical evidence is not essential to prove insanity: Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171. The tribunal of fact cannot reject unanimous medical evidence unless there is evidence that can cast doubt upon it, but such evidence may be found in the behaviour of the accused. The tribunal of fact may decide between competing medical evidence. Medical witnesses may give evidence of their opinion as to whether the accused could appreciate the nature and quality of his acts or, if he could, whether he knew it was wrong: Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584.
54The accused was born in 1976 and was therefore 31 years of age on 24 November 2008 when the original events that precipitated the present charges occurred. The psychiatric medical history of the accused is long and significant. Its aetiology predates these events and must be considered in some detail. The medical opinions expressed concerning the accused and his mental condition are also unanimous. They are referred to in what follows.
Professor Greenberg
55Professor Greenberg initially examined the accused at the Silverwater Remand and Reception Centre on 5 August 2011. He took an extensive history from the accused, including in relation to the subject charges. The accused reported seeing a psychologist at the direction of a court as long ago as 1992. He was not diagnosed with any illness. In 1999 he was admitted to Chisholm Ross Psychiatric Unit at Goulburn Hospital for eleven days. He was given antipsychotic injections of Chlorpromazine at that time. He was discharged with a regime of medication that he disregarded. The accused had approximately six subsequent admissions to Goulburn Hospital for drug-induced psychosis.
56The accused has a documented history of schizophrenia with a previous history of fixed grandiose and persecutory delusions. He has an indifferent history of compliance with antipsychotic medication regimes. Apart from admissions to Goulburn Hospital for mental illness, he has also been admitted for the same reason to Batemans Bay Hospital.
57The accused told Professor Greenberg that he began to smoke cannabis at the age of three. He claimed to have been regularly using the drug since he was 28 years old. He also admitted to using amphetamines but his reports about this were bizarre and were unlikely to have been completely accurate.
58The accused attended St Joseph's School in Batemans Bay and St Bernard's School in Bellingen. He then attended St Patrick's High School in Goulburn until part way through Year 9 and then Batemans Bay High School. He left school to begin work. He denied learning difficulties. He also denied any conduct or behavioural problems during adolescence. He had one previous contact with the Children's Court in 1994.
59The accused said that a teacher sexually abused him for a two-year period between the ages of six and seven. He claimed to have reported this abuse "on seven hundred occasions" to the police. He also said that a magistrate tried to molest him when he was six years old whilst he was in a helicopter between Batemans Bay and Jamberoo. He claimed that his arms were chopped off and subsequently sewn back on.
60Professor Greenberg expressed the opinion that the accused was then unfit to plead or to stand trial. He came to a different conclusion following a further examination of the accused in January 2012. He maintained the view that the accused was fit to plead and to stand trial after his examination of the accused in April 2013. However, following a psychiatric assessment of the accused in August 2013, Professor Greenberg concluded that the accused was then no longer fit to plead or to stand trial. In forming that view, Professor Greenberg expressed the following opinion:
"I am of the opinion that Mr Wilson would have difficulty appreciating the substantial effect of evidence given in Court given his acute paranoid psychotic symptoms including bizarre somatic and paranoid delusional beliefs. Also at times his thoughts were disjointed and his various delusional beliefs appear to be intertwined with his understanding of his cognitive reality. He claimed that his solicitor, Jennifer Powell, and he went to TAFE together; they had done a course in dairy farming. He then stated that if someone wanted to clean up your house and if you had never seen them before, would you let them in? He ruminated about having money under the mattress and Blue Tac on the lock. He explained his distress about the legal system. When questioned about whether he would receive a fair trial, he stated that he had reservations about the impartiality of the Judge. He stated that he would demand "blood tests and photos" of all the jury members before he would be comfortable that they were going to give him a fair trial. Mr Wilson also questioned the role of his solicitor. He stated that it would not matter even if he selected his own lawyer because if the jury was not up to scratch it doesn't matter. Mr Wilson's paranoid belief system appeared to be impinging on his acceptance that he could receive a fair trial. He appears to believe he cannot be represented by his legal representation and the impartiality of the Judge and/or jury is in question."
61It became clear from Professor Greenberg's reports that the mental condition of the accused at any particular time, and from time to time, was closely related to the extent to which he complied with prescribed regimes of antipsychotic medication. The accused had a poor record of regular maintenance of these regimes. Assessments of his fitness to plead and to stand trial were directly related to the accused's compliance or non-compliance with recommendations that he take antipsychotic medication as prescribed.
Dr Olav Nielssen
62Dr Nielssen examined the accused on several occasions between June 2011 and July 2013. In August 2013 Dr Nielssen expressed the opinion that the accused was suffering from an acute exacerbation of chronic schizophrenia and substance abuse disorder (in remission). He proffered the following opinion:
"Mr Wilson is currently affected by an exacerbation of his chronic schizophrenic illness, that appears to be due to ceasing treatment with antipsychotic medication, as I understand he was recently found to be fit and was discharged from the mental health area of the prison back to Goulburn Correctional Centre. He no longer has insight regarding the nature of his illness, the symptoms of his illness, or his need for treatment.
Mr Wilson is again unfit for trial. He has probably retained an understanding of the charges some capacity to respond to those charges, and a general understanding of the general nature of a trial and the procedure followed in an adversarial trial. However, his interpretation of developments in the case is likely to be affected by evolving persecutory delusional beliefs, disorganised thinking and grossly impaired judgment that would affect his capacity to follow proceedings or provide rational instructions.
Mr Wilson has a condition that has been shown to respond to treatment with moderate doses of antipsychotic medication. Based on his previous response to treatment with moderate doses of antipsychotic medication, I believe he will again respond to treatment with antipsychotic medication and become fit for trial after several months of treatment."
Other evidence
63The accused's uncle Gerard Wilson gave evidence before me and was asked about the letters he received from the accused:
"Q. You've seen that the material you have been provided with are copies of the letters that you were forwarded from Goulburn Gaol?
A. They were the same letters, yes.
Q. And that they were letters from your nephew Joseph Wilson?
A. Yes, that is correct.
Q. Did you know at the time you received the letters that he was in custody?
A. Yes, I did.
Q. Did one of those letters include a photograph?
A. Yes, I think it was the second one. One of them, yes.
Q. Who was the photograph of?
A. Of his girlfriend.
Q. Had you ever met her?
A. I had never met her but I saw her once or twice.
Q. In those letters a number of requests were made of you by your nephew?
A. Yes.
Q. Essentially the request was for the person Krystelle Collins to be killed?
A. Yes yeah, yeah.
Q. Your nephew wanted you to arrange that?
A. Well he wanted some money from me to arrange it, I think.
Q. Did you respond to any of his requests?
A. No, none whatsoever.
Q. You had no contact with him either through the mail or over the phone whilst he was at the gaol?
A. No, none at all.
Q. Did you do any of the things that he asked you to do in those letters?
A. No.
Q. Have you had any contact with your nephew Joseph Wilson other than these letters?
A. No."
64Mr Wilson was subsequently cross-examined about the letters. He gave this evidence:
"Q. Did any of that make sense?
A. None of it made any sense at all to me.
Q. There's talk about you buying Mogo Station to run 800 cows and various other things; did that make any sense at all?
A. I knew where Mogo Station was because I think Joe might have worked there at one stage but apart from that, I don't know, it made no sense at all.
Q. Or that your gran had $90 million from bank robberies?
A. No. Yeah, no, it made no sense at all.
Q. In terms of what he was seeking from you, did you just stick it in a drawer and forget about it, did you?
A. Well, yes.
Q. Did you discuss with anybody some of the more unusual statements in the letter?
A. I never discussed it with anyone, only my wife.
Q. Such as saying that you said that Dad owned Carlton United Brewery?
A. We never talked about that, it was hardly worth talking about.
Q. In terms of their contents, they were just completely disconnected from reality?
A. I think so, yes.
Q. So you made no response and just left them as they were?
A. Yeah.
...
Q. Did you speak to anyone else in terms of your extended family about the contents of these letters or the fact that he was sending them to you?
A. No."
65Professor Greenberg was the only medical professional to give oral evidence concerning the accused's mental condition. This was important because counts 2 and 3 on the indictment appeared to me squarely to raise the mental state of the accused at the time when he is alleged to have performed the acts that found these charges. Central to these charges are the letters written to his uncle and to Ms Collins. Professor Greenberg was asked about these letters with a view to determining or assessing the likelihood or otherwise that the accused was relevantly mentally ill at the time they were written. His evidence about this was as follows:
"HIS HONOUR: ...I would be interested to know whether it was Professor Greenberg's view that every one of those letters was, or if not which ones among them were, written by the accused whilst in a delusional state at the time that he is referred to.
AINSWORTH
Q. Can you differentiate between the letters in those terms, can you say that one is and one is not, for example, written at a time when his delusional mindset is prevailing?
A. I think the shorter letters, there's less delusional or less disjointedness. The longer letters he tires and becomes more disorganised and the delusions are finishing more on his thinking. For example, the letter to 'big Joe' dated 29 January 2010, which is 13 pages, he clearly has become more delusional as he continues to write that letter. The short letters to Krystelle, the undated letter has less delusional thinking and likewise with the letter dated 6 February 2010. But underlying all of these letters is a man with a condition which is treatment resistant.
The shorter letter dated 15 March 2010, which is only one page, he clearly has some understanding of the legal process and some understanding of the delusions around fitness. It's just an example of his delusional thinking, it becomes evident as he tires, as his thoughts become more disorganised with the writing. It's less evident with the shorter letters and more evident with the longer letters.
Q. But the underlying condition never changes?
A. The underlying condition never changes but the capsule around the delusional thinking is less prominent with the shorter letters, less obvious with the shorter letters.
Q. They break out of the capsule the longer he attempts to commit to writing things on paper; the longer it goes on, the more the delusional mindset seeps out of the capsule?
A. The longer he tries to focus his cognition and his thinking on to certain matters, the more the capsule breaks down.
Q. So something that he has to think about or organise or describe in a lengthy way is likely to end up with the capsule breaking down as he applies the mental effort to that task?
A. That's correct.
Q. Certainly the longer letters to big Joe, it's quite evident that he is latching into that grandiose and delusional mindset that is very much a part of his schizophrenia?
A. Yes.
HIS HONOUR
Q. Is this a condition that renders the accused liable to have periods of lucidity and periods of psychotic irrationality or is he, subject to medication of course, always likely to have a period when he's unaffected by his psychosis?
A. I think, your Honour, from approximately the year 2010, 2009, Mr Wilson's mental state is such that he never completely becomes rational or free of delusional beliefs and psychotic symptoms. I think in the last two years or three years his mental illness, at least the severity, is entering the spectrum where he is unable to be treated unable to restore fitness to stand trial because of the severity of the illness. So although when he writes letters he has lucid periods where he can make seemingly coherent, rational decisions about his court case and about his legal matters, the underlying illness is still present throughout. And it hasn't always been like that, there obviously have been times when he was living in the community and he was functioning quite well. He was able to leave hospital, he responded to treatment, he conducted himself in the community. There's been a marked change in his mental state from the year 2009, 2010 until now and that seems to be fairly fixed now; it's not responding to any psychiatric treatment and hasn't improved.
Q. I'm not so much for present purposes concerned about the immediate current state so much as the state that may have existed at the time that he wrote any one or some of the letters. You have used the expression in referring to the matters that he wrote in those letters as being, on occasions, your quote, 'Seemingly coherent'. Do I, or do we, understand from that we should be cautious about treating matters that appear coherent, having regard to the condition from which he was suffering?
A. Yes, I think one has to be cautious at this point because his mental state now seems to be fixed, treatment resistant and clearly influenced, for the most, by his delusional beliefs."