Matthew Wright, the accused, has been charged with the following four offences:
1. Armed robbery (dangerous weapon) section 97(2), Crimes Act (date of offence 11 September 2018).
2. Aggravated break, enter and commit serious indictable offence (larceny)(section 112(2), Crimes Act (date of offence 12 September 2018)
3. Aggravated break, enter and commit serious indictable offence (larceny)(section 112(2), Crimes Act (date of offence 12 September 2018)
4. Aggravated break, enter and commit serious indictable offence (intimidation)(section 112(2), Crimes Act) (date of offence 13 September 2018).
The indictments have been filed but the accused as not been arraigned in circumstances where the question of his fitness to be tried has been raised.
The matter was listed before Gosford District Court on 28 April 2020 for a fitness inquiry.
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The relevant law
Section 6, Mental Health (Forensic Provisions) Act provides:
"The question of a person's unfitness to be tried for an offence is to be determined on the balance of probabilities".
Section 11, Mental Health (Forensic Provisions) Act provides:
"(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone.
(2) Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied."
Section 12, Mental Health (Forensic Provisions) Act provides:
"(1) At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by an Australian legal practitioner.
(2) An inquiry is not to be conducted in an adversary manner.
(3) The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence."
Section 13, Mental Health (Forensic Provisions) Act provides:
"If, following an inquiry, an accused person is found fit to be tried for an offence, the proceedings brought against the person in respect of the offence are to recommence or continue in accordance with the appropriate criminal procedures."
Section 14, Mental Health (Forensic Provisions) Act provides:
"If, following an inquiry, an accused person is found unfit to be tried for an offence, the proceedings brought against the person in respect of the offence must not, except for the purpose of doing any of the things referred to in paragraph (b), be recommenced or continued and the Court:
(a) must refer the person to the Tribunal, and
(b) may discharge any jury constituted for the purpose of those proceedings and may, pending the determination of the Tribunal under section 16, do any one or more of the following:
(i) adjourn the proceedings,
(ii) grant the person bail in accordance with the Bail Act 2013,
(iii) remand the person in custody until the determination of the Tribunal has been given effect to,
(iv) make any other order that the Court considers appropriate."
In determining whether the accused is fit to be tried, the question is whether the accused, because of mental defect, fails to meet certain minimum standards beneath which the trial cannot be conducted without the possibility of unfairness and injustice to the accused (the "Presser" criteria).
The "Presser" criteria are derived from R v Presser (1958) VR 45 as affirmed in Kesavarajah v R [1994] HCA 41; 181 CLR 245.
In R v Presser, Smith J stated as follows:
"And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."
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The evidence
The following material was tendered on behalf of the Crown during the fitness hearing:
Exhibit A - Indictments, Crown Case statements, report of Dr Susan Pulman dated 30 March 2020, criminal history.
The following material was tendered on behalf of the accused:
Exhibit 1 - report of Dr Gerald Chew dated 5 November 2019.
Exhibit 2- defence written submissions
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The Crown case
The Crown case stated briefly in relation to each of the charges is as follows:
Armed robbery (dangerous weapon) section 97(2), Crimes Act (date of offence 11 September 2018)
Sometime after 8 pm on 11 September 2018, it is alleged the accused with a co accused approached the male victim as he was walking home in North Gosford. After asking to use the victim's Messenger application on his phone, it is alleged the accused produced a black pistol and pointed it at the victim's head requesting that the victim enter his password into his phone. It is alleged the accused then demanded the victim's wallet before directing a co-accused to take his bag. There was then a physical struggle between the victim, the accused and the co-accused during which the victim was struck to the head and face several times. After a short time, accused and the co-accused ran away. The victim subsequently located his property on the road.
Aggravated break, enter and commit serious indictable offence (larceny)(section 112(2), Crimes Act (date of offence 12 September 2018)
About 9:20 am on 12 September 2018 it is alleged the accused forced open the roller door of a garage at 36 Voyager Street, Wadalba. Once inside the garage he was confronted by the occupant of the premises. The accused tried to start two motorbikes that were originally inside the garage, without success.
Aggravated break, enter and commit serious indictable offence (larceny)(section 112(2), Crimes Act (date of offence 12 September 2018)
About 9:45 am on 12 September 2018 it is alleged the accused kicked and lifted up a garage door at 15 Pollock Avenue, Wyong. The occupant of the premises saw the accused standing inside the garage. The accused wheeled a motorbike from the garage onto the front lawn of the property. When the owner took hold of the motorbike it is alleged the accused struck the owner with a hammer to the head. The accused then took a second motorbike from the garage and wheeled it onto the footpath. The occupant again tried to take the motorbike from the accused and again was struck with a hammer. Ultimately, after a further struggle with the occupant, the accused dropped the motorbike.
Aggravated break, enter and commit serious indictable offence (intimidation)(section 112(2), Crimes Act) (date of offence 13 September 2018)
Approximate 1 am on 13 September 2018 it is alleged the accused with an unknown female attended the front door of premises at 57 View Road, Saratoga. The accused requested $300 from one of the occupants of the premises. The accused was known to the occupant. After being told to go away, the accused started kicking and banging on the door. It is alleged the accused then used a mattock to strike the wooden door causing glass to break. Ultimately, the accused left the premises with the unknown female.
The accused was arrested on 17 September 2018. He remains in custody.
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Report of Dr Gerald Chew, forensic psychiatrist 5 November 2019 and Report of Dr Susan Pulman, forensic psychologist and clinical neuropsychologist dated 30 March 2020
Dr Chew assessed the accused on 9 August 2019. Dr Pulman assessed the accused on 19 February 2020.
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The accused's background
The following background is obtained from the reports of Dr Chew and Dr Pulman.
The accused reported that he was born in Gosford. He has four half sisters. He reported that he thought his mother was a heroin user while she was pregnant with him and also throughout his early life. She died from a heroin overdose when he was in his late teenage years. He described his early childhood as difficult because his mother was drug affected. He reported that his father had mental health issues and was medicated. The accused described a history of domestic violence and physical abuse.
His parents separated when he was two years of age. He lived with his father and grandmother.
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Education and employment
The accused reported that he attended numerous schools. He described school as difficult and reported that he attended special classes. He described himself as illiterate. He reported having being diagnosed with dyslexia. He was expelled from school in year seven. He returned to school and finished year 10 before leaving in year 11. After leaving school he went to live with his mother at Kincumber. His mother died soon after from a heroin overdose. He reported obtaining casual employment in lawn mowing and as a labourer.
He reported that he is currently learning how to read and write.
The accused reported he has three daughters aged 3, 5 and 9 years. He reported his 3 year old daughter was removed from her mother by DOCs.
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Alcohol and substance use
The accused reported having commenced smoking cannabis from seven years of age. He engaged in regular use of cannabis until he was 10 or 11 years old and then described "I started to schiz out, I got real paranoid".
At age 16 he commenced using methamphetamine (ice) as regularly as he could. He also reported using benzodiazepines regularly for the past two years.
He also reported he had been drinking alcohol since his early teens indicating that he drank a bottle of spirits a day. He reported that he did not remember much about his behaviour at the time of the offending. Dr Chew considered this was consistent with benzodiazepine and alcohol misuse.
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Medical and psychiatric history
The accused reported that he was diagnosed with ADHD at 14 years of age by a paediatrician. He has been prescribed Quetiapine, Dexamphetamine' Ritalin and Concerta and more recently Strattera (a non-stimulant medication). The accused is currently prescribed Quetiapine (Seroquel) 600 mg and Atomoxetine (Strattera) 80 mg.
He reported that he had been diagnosed with Bipolar Disorder. The accused had previously reported that his father was diagnosed with Bipolar Disorder and had a history of psychiatric hospital admissions.
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Documentation review
Dr Chew examined medical records (not further identified) which confirmed childhood abuse and heroin abuse by the accused's mother, learning difficulties, substance use issues, and a diagnosis of ADHD and BPAD. An IQ of 69 was noted.
Dr Pulman reviewed Justice Health medical records dating back to 2015. A psychiatric report prepared by Dr Caroline Manual dated 13 August 2015 noted a diagnosis of ADHD, Bipolar II , dyslexia and a history of ice, cannabis and alcohol abuse.
A further psychiatric review of Dr Elliott dated 12 October 2018 noted a history of various diagnoses including ADHD and speculation about BPAD. Dr Pulman summarised the observations of Dr Elliott:
"Impression: ADHD, spectrum of conduct disorder persisting into adult impulsivity, affective dysregulation and repeat offending all worsened by substance use."
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Mental State examination
Having examined the accused, both Dr Chew and Dr Pulman were of the opinion that the accused was orientated to time, place and person and there was no evidence of formal thought disorder. Dr Chew found no evidence of delusions, hallucinations or mania. Dr Chew described the accused mood as dysphoric. Dr Chew was of the opinion that he had good insight into his issues and was motivated to engage in treatment.
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Dr Pulman - Neuropsychological assessment
Dr Pulman assessed the accused using the Weschler Adult Intelligence Scale. Dr Pulman summarised her findings as follows:
"Mr Wright is functioning within the Extremely Low range of intellectual ability and at the 1st percentile when compared to the general population and satisfies the criteria for having a Mild Intellectual disability. He is functioning equivalent to or below 99% of the normal population. His attention and concentration, processing speed, verbal memory and higher-order reasoning skills are impaired leading to significant difficulties in his fitness to stand trial."
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Opinions of Dr Chew and Dr Pulman in relation to fitness to be tried
Dr Chew addressed the Presser criteria with the accused and noted the following:
"He said that he wasn't exactly sure what he had been charged with. He said that he had had trouble understanding when his lawyer had tried to explain. He was able in general terms to tell me the difference between guilty and not guilty. He told me that he really struggled to understand Court process and felt lost each time he has had to appear. He said "I hope my solicitor does it all for me". He could only tell me in a rudimentary sense the role of various court officers for example the magistrate or judge "sentences me". He couldn't explain the role of prosecution. He was not aware of right of challenge. He appeared to understand the concept of evidence when I explained it to him but was unable to apply this to his own case.
He told me that he had trouble understanding and instructing his lawyers. I note that you and counsel have attempted to engage with him on multiple occasions and have been unable to obtain instructions."
Dr Chew concluded as follows:
"Mr Wright suffers from a number of psychiatric conditions. I think that his primary diagnosis is an Intellectual Disability. Additionally he suffers from Bipolar Affective Disorder and is currently euthymic on treatment.
I think that the combination of the above two conditions are currently impacting on his fitness so that he is currently unfit. Intellectual Disability is permanent however I would be hopeful that with education and allowances made by Court for example with plain, clear language, allowances to stop and check for understanding and care taken in proceedings, he may become fit within the next six months."
Dr Pulman also addressed the Presser criteria with the accused. The information obtained was generally consistent with that obtained by Dr Chew with the following additional observations:
1. The accused did not understand the word 'guilty ' and 'not guilty' indicating that those terms indicated whether a person had been charged or not charged.
2. In relation to the nature of the proceedings, the accused was unable to understand that it was an inquiry into whether he committed the offences for which he had been charged.
3. The accused lacked the ability to follow the course of the proceedings so as to understand what is going on in a general sense.
Dr Pulman concluded as follows:
"Based on interview, review of documentation and current results of neuropsychological assessment, in my professional opinion that Mr Wright does not have the cognitive capacity required to participate in court proceedings and therefore is not fit to stand trial according to R v Presser [1958] V45. Although Mr Wright is likely to benefit from education regarding court proceedings, it is my professional opinion that given his deficits in attention, concentration, verbal reasoning, together with reduced memory and processing speed, he will continue to have difficulties following the course of proceedings during a trial."
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Consideration
Having regard to the available evidence, I am satisfied that the accused satisfies the criteria for mild intellectual disability. I am further satisfied his intellectual disability will impact significantly upon his capacity to participate in a trial. In relation to the satisfaction of the Presser criteria, I make the following findings:
1. Does the accused understand what he is charged with and is he able to plead to the charges? I am not satisfied the accused understands what he is charged with. Further, I am not satisfied he is able to plead to the charges in circumstances where I am satisfied he does not understand the meaning of pleading guilty or not guilty.
2. Does the accused understand his right to challenge? I am not satisfied that the accused understand his right to challenge in circumstances where he has no knowledge or understanding of this process.
3. Does the accused understand generally the nature of the proceedings? I am not satisfied the accused understands the nature of the proceedings, that is, an enquiry into whether he committed the offences charged.
4. Does the accused have the ability to follow the proceedings, that is, understand what is going on in a general sense? Having regard to the evidence of Dr Pulman that the accused satisfies the criteria for a mild intellectual disability, I am not satisfied that the accused has the cognitive ability to follow the proceedings even in a general sense.
5. Does the accused have the ability to understand the substantial effect of any evidence given against him. I am not satisfied the accused understands the effect of evidence to be given in the proceedings.
6. Does the accused have the ability to make his defence or to answer to the charges? Is he able to give any necessary instructions to counsel to let counsel know what his version of the facts is and, if necessary, make his version of the facts known to the court? I am not satisfied the accused has the ability to make his defence or to answer the charges. I am not satisfied he has the cognitive capacity to give the necessary instructions to counsel including to provide his version of the facts to counsel or the Court. Dr Chew noted that the accused's counsel had attempted to engage with the accused on multiple occasions and had been unable to obtain instructions.
Having regard to those findings, I am satisfied on the balance of probabilities that the accused is unfit to be tried.
The orders of the court are as follows:
1. I find that the accused Matthew Wright is unfit to be tried for the offences.
2. In accordance with section 14(a), Mental Health (Forensic Provisions) Act, I refer the matter to the Mental Health Review Tribunal.
3. I direct that the Registry provide a copy of the reports of Dr Chew and Dr Pulman to the Mental Health Review Tribunal together with a copy of my judgment.
4. In accordance with section 14(b) (i) and (iii), Mental Health (Forensic Provisions) Act, the proceedings are adjourned to 28 May 2020 for mention and the accused is remanded in custody.
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Decision last updated: 01 May 2020