"Mr Grant's communication was so disorganised at the time of the recent assessment that I believe he would be unable to follow any proceedings in a meaningful way or give reliable instructions. However, he has only recently resumed treatment with antipsychotic medication after a long period without medication and he may eventually respond to treatment to the extent that he will become fit for trial. I would be happy to review Mr Grant again after a period of consistent treatment and also to review any medical records of his treatment in the community and since his arrest."
20 Dr Nielssen examined the Accused again on 7 December 2007 and provided a further report dated 22 January 2008. The Accused was receiving treatment with a relatively high dose of the antipsychotic medication, Olanzapine (Zyprexa) 30 mg per day. Dr Nielssen observed that the second interview confirmed his opinion that the Accused had a chronic schizophrenic illness which was "relatively treatment resistant in the sense that he has persisting delusional beliefs despite four months treatment with high doses of antipsychotic medication" (page 2). In his report of 22 January 2008, Dr Nielssen was of the view that the Accused was fit to be tried (pages 2-3):
"As of 7.12.07 Mr Grant was assessed to be fit to enter a plea and fit for trial. He was more coherent in his communication, demonstrated a reasonable understanding of the nature of the proceedings and was assessed to be able to follow the proceedings in a general sense and give reliable instructions to his legal representatives. In particular, he recognised that he had a mental illness, even if he was unable to recognise the symptoms of his illness, and did not object to his illness being raised in his defence.
He should remain fit for trial provided he continue to receive treatment with an adequate dose of antipsychotic medication in the period leading up to the trial."
21 Dr Nielssen interviewed the Accused again on 17 April 2008, leading to his report of 29 April 2008.
22 Dr Nielssen recounted that his report of 22 January 2008 had concluded that the Accused was "on balance fit for trial, as he was able to give an account of the events that could be understood and it seemed clear that he intended to plead not guilty on the grounds of mental illness". Dr Nielssen continued (page 1):
"Of concern at that time was that he was still affected by a fairly severe form of communication disorder that would affect his ability to give evidence on his own behalf and that he was also continuing to experience symptoms of mental illness despite three months treatment. However, he was assessed to be 'fit enough' to give his account of what happened to psychiatrists assessing him for court and to enter a plea."
23 At interview on 17 April 2008, however, Dr Nielssen noted that it soon emerged that the Accused's "mental state had not continued to improve despite consistent treatment with higher doses of medication and that he was affected by active symptoms of a chronic mental illness". The Accused was taking the high dose of 40 mg of Olanzapine per day in combination with regular injections of long-acting antipsychotic medication. Dr Nielssen observed that the Accused had not taken the atypical antipsychotic medication, Clozapine, that is usually reserved for treatment-resistant patients, nor had the Accused discussed taking Clozapine with his treating doctor.
24 Dr Nielssen concluded (page 2):
"After the most recent interview I am now of the opinion that Mr Grant is unfit to plead and is unfit for trial. His mental state has not continued to improve and if anything is worse than it was at the time of the interview in November. He expressed fixed delusional beliefs about the victim and the events surrounding the offence and appeared to be distracted by active auditory hallucinations during the interview. He initially said that he was willing to enter a plea of not guilty due to mental illness, but was unable to say how he was mentally ill and later contradicted himself by saying that he wanted to plead guilty to get a fixed term.
Hence I now believe Mr Grant is unfit for trial, as his interpretation of events is likely to be affected by ongoing auditory hallucinations and fixed and evolving delusional beliefs, and he would be unable to give reliable instructions whilst affected by acute symptoms of treatment resistant schizophrenia.
Mr Grant may become fit for trial within 12 months if he responds to treatment with the atypical antipsychotic medication clozapine. About thirty percent of treatment resistant patients have a significant response to clozapine treatment and Mr Grant should be referred to the psychiatric ward of Long Bay Hospital for a trial of this treatment."
25 Dr Samson Roberts examined the Accused on behalf of the Crown at the Metropolitan Reception and Remand Centre, Silverwater on 5 June 2008. Following a detailed account of the Accused's psychiatric, substance-use and medical history and family and developmental history, Dr Roberts turned to an assessment of the Accused's fitness to stand trial. Dr Roberts provided a diagnosis of schizophrenia (paranoid type), psychostimulant abuse (in sustained full remission) and cannabis abuse in a controlled environment. Dr Roberts concluded his report in the following way (pages 15-16):
"Mr Grant is a 29 year old man who provides an unclear account of himself so affected by delusional content that it is not possible to determine with certainty which aspect of his account is reflective of reality. It is evident that Mr Grant has a history of psychiatric illness which has led to hospitalisations in the past. Based on his account, his treatment has been characterised by a need for involuntarily [sic] treatment both in hospital and in the community. His psychiatric condition has been compromised by non compliance with medication and illicit substance use. During his incarceration he has been under the care of psychiatric services.
Despite being in receipt of supervised psychiatric treatment, Mr Grant continues to exhibit symptoms of his illness. If his account of the pharmacological treatment prescribed to him is an accurate reflection of fact, his condition is being treated aggressively. Based on the contents of Dr Nielssen's reports, it is apparent that despite a protracted period of supervised treatment, Mr Grant's symptoms have not improved over time.
In considering Mr Grant's fitness to stand trial, it is apparent that he has an understanding, albeit imperfect, of those issues outlined in Presser . The nature and severity of his illness however is such that delusional material continues to intrude upon his understanding of issues relating to the offences for which he is before the Court. Additionally, his conduct is demonstrated by the self-inflicted burn aimed at removing a tattoo, indicates that his psychiatric condition continues to impact upon his day to day life. It is therefore expected that his psychiatric illness will adversely impact upon his ability to follow Court proceedings and will intrude upon instructions given to his solicitor. Although he expresses a superficial understanding of the plea of Not Guilty by reason of mental illness and has expressed a desire to enter such a plea, he stated the perception that he will receive a fixed term of incarceration indicating limited understanding of the ramifications of such a plea.
In conclusion, it is my opinion that in the absence of improvement in Mr Grant's mental state, he will remain unfit to enter a plea and unfit to stand trial."
26 The Crown confirmed that documents produced on subpoena indicated that the Accused was receiving medication in dosages referred to in the medical reports.
27 Dr Roberts agreed with Dr Nielssen's recommendation concerning a trial of Clozapine treatment (page 16):
"I concur with Dr Olav Nielssen's opinion with respect to the recommendation that a trial of Clozapine be instituted. Given the lengthy period that Mr Grant has remained unwell despite consistent treatment, it is expected that in the absence of a response to Clozapine, he will remain unwell for the foreseeable future and therefore is expected to be unfit to stand trial for in excess of a further twelve months."