R v Wilson

The expert evidence

No evidence was called from Ms Wilson. She has given inconsistent accounts as to what happened to Mr Shepstone, which raised the question of her fitness. As a result, Ms Wilson was examined by the psychiatrists, Dr Furst and Dr Allnutt, and by Dr Hepner and Dr Pullman, both neuropsychologists. Their reports were in evidence and unchallenged affidavit evidence was also led from Ms Wilson's solicitor, Mr Rees.
Ms Wilson's background and present circumstances emerged from the histories which she has given to those who have examined her. These accounts differ in detail, but appear to have been consistent with various police and medical records referred to in the experts' reports. She has a history of considerable deprivation, abuse and serious ill health.
Ms Wilson is of Aboriginal heritage and is now aged 60 years. She has never learned to read or write and has a long history of treatment for mental illness and abuse. She is presently at liberty on bail, living in the community receiving treatment for her various physical and mental health problems. On the expert evidence her mental health has deteriorated to the point that she requires further treatment in hospital.
Mr Rees explained recent events in his unchallenged affidavit. He had also considered audio recordings and notes of past conferences with Ms Wilson and has also discussed her mental state with the solicitor who previously had carriage of her matter and with Mr Pearsall of counsel. He had also considered the reports tendered. He gave a detailed account of the events which had led him to the view that Ms Wilson's mental state had deteriorated since the Aboriginal legal Service was first retained to represent her. That was consistent with medical evidence as to her declining health, which on the expert evidence, is likely to continue.
Mr Rees explained what had occurred at a recent conference when the question of fitness was discussed with Ms Wilson. He explained ongoing communication difficulties; what appeared to be efforts by Ms Wilson to participate; and her apparent difficulties in understanding and retaining basic information. He also explained her equating Mr Shepstone's death with proof that she had murdered him and an inability to grasp issues such as intention, or defences of self-defence or provocation.
Dr Furst's June 2014 report noted that Ms Wilson had an awareness of the charge she faced and responded to questions asked as to the elements of the Presser test. Dr Furst then concluded that she was fit to be tried, notwithstanding her cognitive impairments and associated comprehension and communication difficulties.
Dr Furst also referred to a range of records and documents provided to him, including the results of a March 2013 MRI, which identified infarcts in both hemispheres of Ms Wilson's brain, consistent with vascular disease, hypertension and diabetes affecting her brain circulation and suggesting vascular dementia. He recommended neuropsychological testing, to established the level of her impairment, also noting that she appeared to suffer chronic anxiety disorder, PTSD, which appeared to have a significant impact on her functioning. He also considered that she had a defence of substantial impairment by abnormality of mind.
Dr Hepner's August 2014 report referred to the material she had been briefed with, including Dr Furst's report and various records and documents. Dr Hepner found Ms Wilson to be a poor historian, but noted her report of having been bashed, strangled and suffocated by others on multiple occasions, more than 20, during most of which she had lost consciousness. Dr Hepner administered various tests and also considered the Presser test.
Dr Hepner found that Ms Wilson's intellectual functioning fell into the extremely low range, with her verbal comprehension falling into the borderline impaired range. There were similar results for working memory, more complex learning memory, as well as memory for spoken and visual information. Her language performance also fell into the impaired range. There were similar poor results on other testing.
Dr Hepner concluded that Ms Wilson had significant impairment in multiple areas of cognitive functioning and that she satisfied the criteria for diagnosis of vascular dementia. Her IQ also fell into the range for a mild intellectual disability. There was, as a result, significant concern that she could not follow the course of any proceedings and that her ability to give a reliable account of events or to instruct her counsel, or decide on any defence was impaired. In the result, Dr Hepner concluded that she was not fit to be tried.
Dr Pullman's April 2015 report referred to the reports of Dr Furst and Dr Hepner, as well as various records, reports and statements, including those of Ms Wilson. To her, Ms Wilson gave a history which included having suffered a heart attack, while being strangled. Dr Pullman administered various tests, which showed, despite good effort on Ms Wilson's part, that she had problems with working memory and processing speeds, with her overall intellectual functioning falling into the extremely low range. She also had impaired results in testing of her recent memory and was assessed as having both auditory and visual memory impairments, as well as impaired executive functioning skills and language skills falling into the impaired range.
Dr Pullman concluded that she did not have the cognitive capacity to instruct counsel, follow and comprehend the court proceedings and that given her dementia, that capacity would not improve.
Dr Allnutt's 7 May 2015 report recounted Ms Wilson's account that at the time of Mr Shepstone's death, she was not working, living on a disability support pension, suffering from heart problems and taking a variety of medications. She had been admitted to hospital in the past as the result of overdosing and had made other suicide attempts in her twenties and thirties, when depressed. When Mr Shepstone died, however, she had not been abusing alcohol, but was still using cannabis daily, having commenced its use when aged 27.
Ms Wilson has given an account of being the victim of repeated sexual and other abuse over the course of her lifetime, commencing when she was a child and including at the hands of Mr Shepstone, who she met when aged 51. She said that on occasions she had been choked to the point of blacking out and described suffering anxiety symptoms in the period before Mr Shepstone died, when he was intoxicated.
These accounts were consistent with various police records provided to Dr Allnutt, as well as with medical records and what examination of Ms Wilson revealed. COPS reports between 2001 and 2009 revealed reported domestic violence on multiple occasions in which Ms Wilson was the victim and on others, when Mr Shepstone was the victim and she the person of interest. Those reports include references to Ms Wilson being choked and smothered with a pillow, involving, for example, Mr Shepstone in breach of an AVO in 2008. There was another such report noted in 2012.
Dr Allnutt had also reviewed the reports of Dr Furst, Dr Hepner and Dr Pullman. He also saw a DVD of Ms Wilson's police interview.
Ms Wilson's medical records revealed that she has suffered significant ill health including diabetes, hypercholesterolemia, hypertension, retinal aneurism, cloeithiasis, fractures and abscesses. Her cardiovascular disease resulted in her requiring an operation in 2012. She had also been diagnosed with depression, alcohol abuse and anxiety, as well as vascular and/or alcohol related dementia.
Dr Allnutt noted that after her arrest in 2013, Ms Wilson was admitted to a mental health facility from 21 February to 22 March, where she remained as a voluntary patient, then being at risk of self harm. She was then diagnosed as suffering grief and depressive symptoms, as well as aggression. An MRI was found to be abnormal and she was referred to a neurologist. There had also been a diagnosis of PTSD and cognitive impairment, with her IQ falling in the range for mild intellectual disability.
Dr Allnutt found Ms Wilson to be suffering mild depressive symptoms, arising from her PTSD, demonstrated memory problems, mild intellectual incapacity and vascular dementia, consistent with the findings of the CT scan of her brain. He considered then, however, that with breaks allowed during the hearing to address her cognitive problems, she was fit to stand trial.
That opinion altered after Dr Allnutt's most recent examination. At the hearing it was revealed that it had been agreed between Dr Allnutt and Dr Furst, not only that Ms Wilson was suffering moderate to severe depression, but that she was also suffering a range of psychotic symptoms, including various auditory phenomena and unusual ideas and beliefs. They included that Mr Shepstone's spirit is in her house; that she is being followed; that paedophiles are intent on killing her; and that it was not Mr Shepstone, but another person, who had died.
Dr Allnutt considered it unlikely that these symptoms were feigned and that it was possible that they would respond to treatment. Dr Furst agreed. Given, however, her underlying cognitive impairment and dementia, which would continue to deteriorate, they both considered it unlikely that she would recover. They also agreed that she needed to be readmitted, for further treatment in hospital, to give her the best possibility of some recovery.
In the circumstances, there was, however, no longer any disagreement that Ms Wilson could not meet the Presser test. Whether there was any prospect of recovery depends on a range of complex matters, including the basis of her psychotic symptoms, including whether or not they are psychotic memories. That cannot presently be determined.
Given her frailty and deteriorating mental health otherwise, both Dr Furst and Dr Allnutt considered it unlikely that Ms Wilson will recover sufficiently to stand trial on a charge which raises complex issues, which she would have to engage in over a period of some 3 to 4 weeks. They agreed however, that further treatment provided the best possibility of such a recovery.
In the face of the common view which the experts had reached, when considered in light of the problems described by Mr Rees in advising Ms Wilson and obtaining instructions from her, the conclusion that she was not fit to be tried, was unavoidable, given the applicable principles. I was satisfied that she did not meet the Presser test and that accordingly, it had to be concluded that at present, she is not fit to be tried.
It was in those circumstances that the orders which the parties agreed must be made.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cited By (4)