Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Jamieson Criminal Law (Accused)
File Number(s): 2021/169252
[2]
Judgment
This is an inquiry under Part 4 of Division 1 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which I will call "the Act". The inquiry is directed to the question of whether the accused Louis Woodham is fit to be tried. If he is not fit to be tried today, the question is whether he is likely to become fit within the next 12 months. However, as will be seen that secondary question - which has important ramifications for the parties, the community and especially Mr Woodham - is posed in a somewhat peculiar way. It will be necessary to return to that issue. All of the evidence was taken yesterday and the parties made submissions immediately thereafter.
As required by the Act, the proceedings were not conducted in an adversarial manner and neither party undertook any onus of proof: see s 44(3) and (4). In considering the question of Mr Woodham's fitness to be tried I have considered the possible modifications and simplifications that could be made to the trial process, the complexity of the issues likely to arise and the fact that Mr Woodham enjoys the services of two extremely capable legal practitioners. In what I am about to say, as to my determination of the matter, and in what I have already said, I will include the relevant legal principles as well as the factual findings I have made.
R v Woodham [2022] NSWSC 1154 | Case summary | Zoe
Mr Woodham is charged with the murder of Denise Brameld at Numbaa on 10 June 2021. The facts and circumstances of Ms Brameld's killing, and a modest overview of the evidence upon which the prosecution expects to rely at Mr Woodham's trial, is set out in a Prosecution Case Statement which formed part of a joint tender bundle which became Exhibit A. It is unnecessary, and perhaps undesirable, to set out the evidence, facts and circumstances other than to make three observations.
First, the circumstances are tragic and it is apparent that Ms Brameld is a completely innocent victim of a random and quite brutal killing. I cannot imagine the shock and grief that her family is enduring and I know that her two adult children Amanda and Travis have kept vigil over this inquiry over the last two days. The family has my deepest sympathy and the condolence of the Court, although I acknowledge that nothing I say can possibly assuage their grief.
Secondly, in the aftermath of the killing Mr Woodham made comments to family members and the police which were both inconsistent and in many ways bizarre. This is in keeping with the expert evidence of his psychiatric state that is before the Court and which is echoed or foreshadowed by a long history of mental health issues and cognitive impairment.
Thirdly, the evidence of Mr Woodham's statements to police, along with the police investigation and forensic findings on examination of the scene and various physical objects, is consistent with Mr Woodham having been involved physically in Ms Brameld's death. However, there are a number of complex issues concerning his mental state including his motivation, intentions and psychiatric condition which may give rise to a defence of mental illness or a partial defence of substantial impairment. One might add to that an accused person in Mr Woodham's position - who has made quite inconsistent statements about his involvement - is entitled to be in a position to test the physical evidence to which I have made fleeting reference. Some of that evidence is potentially quite complex.
The joint tender bundle included a large body of material detailing Mr Woodham's mental health history. It is extensive and sad and has often been untreated. Mr Woodham has little insight into it - he does not understand it and is in denial as to its severity and impact. Perhaps most perplexing is that Mr Woodham was released from gaol for an earlier offence of violence just six weeks before Ms Brameld was killed. He was not subject to any treatment plan for his psychiatric condition and cognitive impairment, in spite of the fact that those things had been fully explored before he pleaded guilty and was sentenced to gaol.
The psychiatric history is most conveniently set out in a report of Dr Kerri Eagle. Dr Eagle was retained by the prosecution in 2019-2020 when Mr Woodham faced the District Court sitting in Nowra for a series of serious offences of violence. Mr Woodham's current solicitors approached Dr Eagle after he was charged with Ms Brameld's murder and she provided a report dated 21 April 2022 which set out the mental health history to which I have referred.
The prosecution retained Dr Adam Martin. He provided reports dated 3 June 2022 and 6 June 2022.
Yesterday afternoon, Drs Eagle and Martin gave concurrent evidence in the course of the inquiry. On behalf of the Court and the parties I thank each of the doctors for their assistance. There is very little between them in terms of their opinions and the issues before the Court. Based on the history and clinical presentation, each is of the opinion that Mr Woodham suffers from schizophrenia or schizoaffective disorder. This is a chronic condition, the symptoms of which have manifested themselves over a number of years. He had this diagnosis when Dr Eagle met him back in 2019. There is evidence of, and a history of:
Auditory hallucinations;
Bizarre, grandiose and persecutory delusions;
Mood disturbances;
Manic episodes;
Emotional blunting; and
Anhedonia, which I understand to be the inability to feel pleasure.
That list of symptoms is far from comprehensive.
There is a history suggesting that Mr Woodham has very little insight into his condition and denies his psychiatric illness. By way of example, he has been observed to answer non-existent voices but shortly thereafter to deny hearing such voices.
To add complexity to the matter is the fact that, while there is no neuropsychological report before the Court or relevant testing, there seems little doubt that in addition to his complex and severe schizophrenic illness, Mr Woodham also suffers from a substantial cognitive impairment. Dr Martin gave evidence that he would meet the criteria, or diagnosis, of being cognitively impaired.
The above is a scanty overview of Mr Woodham's condition and symptoms but it suffices to place the issues currently before the court in an understandable context.
As to the issue of fitness, the experts shared the opinion that Mr Woodham is not currently fit to stand trial. I accept those opinions.
Section 36 of the Act sets out the issues to be addressed and mandates that a person is unfit to be tried if - as the result of, relevantly here, a mental health impairment - he is unable to do one or more of the nine things set out in paragraphs (a) to (i) of s 36(1). The criteria in s 36 reproduce, and perhaps codify, the common law test often referred to as the "Presser test" or the Presser criteria: see R v Presser (1958) VR 45. Based on the opinions of the experts, which receive support in an insightful affidavit of Mr Woodham's solicitor, Mr Jamieson, it is clear that Mr Woodham is currently unfit to be tried.
Adopting the order and approximate language of the paragraphs of s 36(1), I have reached the following factual conclusions:
1. Mr Woodham is unable to understand the difference between murder and manslaughter, in spite of Dr Eagle repeatedly attempting to explain those differences to him.
2. Because of that lack of understanding, he is not able to enter a sensible plea to the charge.
3. He does not understand what a juror is, thinking they are eye-witnesses to the events, so his ability to exercise a right of challenge is seriously compromised.
4. He does understand the nature of the proceedings and the role of the various participants, albeit that this understanding is rudimentary.
5. He demonstrates gross deficits in attention and concentration. He would not be able to follow the course of the proceedings and understand what is going on in any meaningful way. In reaching that conclusion I am fortified by Mr Jamieson's affidavit and the complexity of the issues that are likely to be ventilated in a trial.
6. He would have a very basic understanding of the evidence against him but that understanding is so basic that he would not understand the substantial effect, for example of the physical and forensic evidence.
7. His lack of insight into his mental health problems means that he would not be able to make a defence to the charge or follow the partial defences that may be available to him.
8. Because he does not understand the possible defences available to him, he could not instruct his lawyers. Again, the affidavit of Mr Jamieson provides me with comfort in making this finding
9. He told Dr Eagle he intended to plead guilty but, in almost the same breath, said he did not mean to kill Ms Brameld. If put to trial, he could not decide what defence he might rely on.
Speaking more generally, on the evidence before the Court at this stage, Mr Woodham could not make informed decisions as to the conduct of his defence or the plea that he should enter to the murder charge. The inconsistent statements he has made - to police after his arrest and more recently to Dr Eagle - are also relevant to these issues. Without making any judgments about the conclusions a tribunal of fact might make in the future, there may be issues as to (i) intention, (ii) mental illness and (iii) substantial impairment. There is little to suggest that Mr Woodham has any real understanding of those matters. The evidence suggests the opposite. He will also have to understand the physical and forensic evidence, and the inferences that arise from that evidence, in order to instruct his lawyers whether the fact of the killing and his role in it is admitted or contested.
Dr Martin put it this way:
"In relation to his fitness to be tried, his responses will be noted above around his understanding of the Australian legal process. Generally, he gave inadequate responses around his understanding of aspects of the court process including the jury system and evidentiary issues. In my view, he would be unlikely to be able to follow court proceedings adequately and would not be able to participate meaningfully. Furthermore, in my view, he lacks the capacity to give an adequate version of events and would not be able to adequately make a defence to the charge, which is a consequence of chronic mental illness superimposed on likely low average intelligence and probable cognitive deficits, as a result of mental illness and substance use. Poverty of expressed thought resulting in vagueness will interfere with his capacity to give a version of events to the court if necessary and in my view, he would not be able to adequately consider legal advice or give appropriate instructions in relation to making a defence to the charge." [1]
For those reasons, and for the purpose of s 47 of the Act, I record my finding that Mr Woodham is currently not fit to be tried.
Having reached that conclusion, it is necessary to make a determination - described in the case of R v Risi [2021] NSWSC 769 as a "binary choice" - as to whether:
1. Mr Woodham may become fit to be tried for the offence of murder in the next 12months, or
2. Mr Woodham will not become fit to be tried for the offence.
See s 47(1) of the Act and see also R v Lailna [2021] NSWSC 1205.
It will be seen that sub-para (a) of 47(1) is cast in terms of a possibility ("may") whereas sub-para (b) is cast in terms of something akin to near certainty ("will"). As to sub-para (b) Beech-Jones J (as his Honour then was) said in Risi at [55] that the finding "should only be made if there is a real certainty as to the accused's lack of fitness during the relevant 12 month period."
In terms of the Parliament's choice of the word "will" - I have also noted the construction of recent amendments to the Bail Act 2013 (NSW) (that is the insertion of s 22B) by the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 and Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173. The Court (in each case comprised of Gleeson JA, Wright and Cavanagh JJ) considered a provision which required a Judge considering bail after a conviction or guilty plea to determine whether an offender "will be sentenced to imprisonment to be served by full-time detention". Their Honours held at [44]:
"When regard is had to these contextual considerations, the use of the word 'will' in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that 'will' involves a state of absolute certainty. That cannot be correct since the task of the Court as a bail authority is to make a forward looking assessment of the future disposition of the sentence with respect to the convicted person based on materials which are unlikely to be complete."
See also their Honours comments in Day at [23].
The Court of Criminal Appeal was dealing with different statutory provisions, with different legal consequences and the context is obviously different to some degree. However, it is a useful analysis of statutory language employing the word "will". It confirms my assessment that s 47(1)(b) does not require a state of "absolute certainty". Even so, it is a very high standard of satisfaction whether one applies the language of Beech-Jones CJ at CL ("real certainty") or the Court of Criminal Appeal ("realistically inevitable").
It was here that there emerged during the concurrent expert evidence a linguistic or philosophical chasm between the lawyers and the forensic psychiatrists. The learned Prosecutor, Senior Counsel for Mr Woodham and I each made several attempts to entice Drs Eagle and Martin to engage with language of certainty employed by ss 47(1)(b) and 48(1) of the Act. Neither was prepared to bite and, insofar as they did so, neither was prepared to offer an opinion in such terms.
It was clear that both held the opinion that Mr Woodham is most unlikely to be become fit within the next year. That was first because of the chronic nature of his schizophrenic illness (which may or may not improve with antipsychotic medication) and because of his cognitive impairment (which is unlikely ever to improve). Neither expert was tempted to engage with the lawyers' diction or the test as articulated by the current Chief Judge at Common Law in Risi. To put their views as simply as I can: there are no "real certainties" in psychiatry.
To quote a passage of the examination of Dr Martin by Mr Young SC:
"WITNESS MARTIN: It is something less than certainty. I don't think anyone can ever be certain. On the one hand, in Mr Woodham's case, previously he could respond to treatment to the point the court found him to be fit, in a separate matter. In this case, he's got a longer period of being unwell and untreated. His condition is likely to have progressed and deteriorated. It's a more complicated and serious matter, hence the stakes are higher. I think it's very, very unlikely that he will become fit. If I were a betting person, I'd be fairly certain, fairly certain that he wouldn't become fit. I don't think we can be absolutely certain. I don't think anyone will ever be absolutely certain in any psychiatric case. So, as far as I'm concerned, I think it's highly unlikely that he will become fit. But I can't absolutely rule it out.
YOUNG: In other words, you are not prepared to express an opinion that he will not become fit or there is a real certainty that he will not become fit?
WITNESS MARTIN: Correct.
YOUNG: You wouldn't express an opinion in those terms, is that correct.
WITNESS MARTIN: Correct. I could not say in all honesty that he will not become fit." [2]
Dr Eagle agreed with that analysis. When asked to engage with the expression "realistic inevitability" she provided the following responses:
"I agree with Dr Martin. I think again the terminology is problematic because it also depends on what clinician or day or perspective you might actually see Mr Woodham.
…
Yes, I guess it's ample in the sense for us to think of it that way because, as clinicians, we're always weighing up a large number of different factors, so it's very hard, as Dr Martin said, to make any - to give any opinion with certainty. But, yes, realistically inevitable, I think again I would have difficulty saying that it is inevitable, certainly. I think in reality my opinion is that, you know, it is again highly unlikely and my opinion would be that Mr Woodham is not going to become fit, regardless of what treatment he gets at this point. That would be my assessment. But whether something's inevitable is taking it a step further, I think, so unfortunately I can't say that, your Honour." [3]
To quote McCallum JA (as her Honour then was was) it borders on "lawyerly arrogance" on my part to ignore the clear implication of the evidence of these distinguished and thoughtful expert witnesses. [4] It was abundantly clear that both were firmly of the view that it is extremely improbable that Mr Woodham will become fit to be tried in the next twelve months. But neither would, as a matter of science, rule out the possibility.
Each expert also acknowledged, in their own way, that it was ultimately a matter for the Court to apply the legal standard, while they could provide their expert opinions to inform that decision. While their joint opinion that Mr Woodham will not improve sufficiently in the next twelve months to become fit to be tried was strong and well-reasoned, neither Dr Eagle nor Dr Martin was prepared to rule it out as impossible.
Another issue is that neither doctor has consulted with Mr Woodham for some months. Dr Martin saw him on 19 May 2022 while Dr Eagle, who has assessed him over a number of years, last consulted with Mr Woodham on 31 March 2022.
The evidence demonstrates that Mr Woodham is somewhat, if not significantly, resistant to treatment, due in part to the extended periods he has remained psychotic and untreated. [5] However, there have been occasions where his symptoms have improved with treatment. For example:
When he was charged with the serious wounding offence in 2018, he was assessed by both Dr Furst (on 13 September 2018) and Dr Eagle (on 4 January 2019). He was found unfit to plead following a fitness hearing in the District Court sitting at Nowra on 22 February 2019. There was a review hearing before the Mental Health Review Tribunal on 3 May 2019. On 21 July 2019, the Tribunal found that while Mr Woodham suffered from a mental illness, he had become fit to be tried. At that stage, Dr Eagle still regarded his fitness to be tried to "borderline". Even so, following a further fitness hearing in the District Court on 17 February 2020, Mr Woodham was found to be fit to plead and stand trial.
Again, following his arrest on the present charge, he was unmedicated and, on most accounts, floridly psychotic even while attempting to hide or mask his symptoms. However, Dr Eagle's report sets out the progress observed by Drs Hearps and Safron between 9 November 2021 and 15 March 2022:
"Mr Woodham was observed to gradually improve in mental state between 27 September 2021 and 21 October 2021 on injectable antipsychotic medication. He continued to exhibit signs of responding (answering unseen voices) and refused oral medications. He denied he had a mental illness and on 16 October 2021, for instance, stated 'I never hear voices.'
On 18 October 2021, Dr Saffron, psychiatry registrar, spoke to Mr Woodham's mother who recalled he was 'different "in his eyes"' before coming into custody. She could not identify anything odd that Mr Woodham had said.
On 21 October 2021, Mr Woodham appeared before the MHRT tribunal following his transfer to Long Bay Hospital. He was noted to experience grandiose, referential and bizarre delusions and command auditory hallucinations that had improved on injectable antipsychotic medication. Mr Woodham denied having a mental illness or needing treatment. He said he had committed a murder that had nothing to do with mental illness.
On 26 October 2021, Mr Woodham was noted to be guarded in mental state, but without recent bizarre or problem behaviours.
On 9 November 2021, Mr Woodham was noted to 'still appears paranoid in his behaviour and affect, not coming out of cell, however not overtly expressing paranoid delusions during a multidisciplinary review. He was prescribed zuclopenthixol decanoate 400mg IMI fortnightly (antipsychotic medication).
On 29 November 2021, Mr Woodham was reviewed by Dr Hearps, and Dr Saffron. He was noted to reflect on referential ideas and acknowledged 'messages from the TV.' He could identify he was charged with murder. His insight was noted to have improved. He was accepting oral medication.
On 11 January 2022, Mr Woodham was reviewed by Dr Hearps, psychiatrist and Dr Saffron who noted he displayed some tangentiality of thought form and was fixated on medications, but had partial insight.
On 24 January 2022, Mr Woodham was assessed by Dr Hearps. He was noted to escalate in behaviour 'coinciding with persecutory themes in thought content' during review. Sodium valproate (mood stabiliser) had been added to his treatment, and it was noted he may bene-fit from lithium or clozapine if he did not improve.
On 1 February 2022, investigations for prescription of clozapine (an antipsychotic for treatment resistant schizophrenia) were commenced. On 22 February 2022, Mr Woodham was noted to be refusing to accept clozapine treatment.
On 15 March 2022, Mr Woodham was reviewed by Dr Hearps, and Dr Gorman. He was observed to have a logical thought form. He said he had been admitted to Long Bay Hospital because he was 'hearing voices last time' and did not finish parole. He was noted to be superficially engaged." [6]
Dr Martin's report included the opinion that Mr Woodham "is more likely than not to remain unfit over twelve months." Dr Eagle expressed a similar opinion, albeit in somewhat different terms. She said:
"the impairments impacting on his fitness are likely chronic and enduring and I am of the view he would not become fit within 12 months". [7]
Dr Eagle also expressed the view that some of Mr Woodham's "difficulties in satisfying the criteria for fitness arise more from his basic cognitive function rather than his positive symptoms of psychosis". Dr Eagle confirmed while Clozapine, the most effective treatment for an illness of Mr Woodham's severity, may improve those positive symptoms and emotional fluctuation, it would be unlikely to impact upon his underlying cognitive function. [8]
Even so, these opinions - which I accept without reservation - are not expressed in the terms of certainty employed by the legislation which I must apply. As the foregoing analysis demonstrates, there remains a possibility that Mr Woodham will improve with treatment and may become fit to be tried over the next 12 months. Conversely, I am unable to find that he "will not become fit to be tried" during that period. Those conclusions are informed by his recovery in 2018-2020, the absence of evidence as to his current progress and the appropriate circumspection of the experts who gave evidence at this inquiry.
For those reasons I make the following findings and orders:
1. Mr Woodham is unfit to be tried pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act").
2. Mr Woodham may become fit to be tried within the next 12 months pursuant to s 47(1)(a) of the Act.
3. Mr Woodham is referred to the Mental Health Review Tribunal pursuant to s 49(1) of the Act.
4. Mr Woodham is remanded in custody pursuant to s 47(2)(d) of the Act.
5. I direct the Registrar to provide a copy of the transcript, exhibits and this judgment to the Mental Health Review Tribunal as soon as possible.
6. I recommend to the Mental Health Review Tribunal that Mr Woodham be assessed by an appropriately qualified expert to determine the extent of his cognitive impairment.
[3]
Endnotes
Report, Dr Adam Martin, 3 June 2022, Ex A at p 48.
Transcript, 29 August 2022, p 16.
Transcript, 29 August 2022, pp 16-7.
Lloyd v R [2022] NSWCCA 18 at [47].
Transcript, 29 August 2022, p 11.
Report, Dr Kerri Eagle, 21 April 2022, Ex A at p 69.
Ibid, Ex A at p 78.
Transcript, 29 August 2022, pp 10-11.
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Decision last updated: 31 August 2022