Russell Clement Wills v Regina

Sightings of the appellant on 16 and 17 July 2002 15 The accommodation in which the appellant was living with Mr Shumba in July, was a shared residence, including a single shared kitchen and bathroom facilities. One of the residents, Peter Brooks, saw the appellant at about 2pm on Tuesday 16 July in the kitchen. He was limping, and having asked the appellant what had happened, the appellant had told Mr Brooks that he thought his leg was "broken or fractured" and that something had happened "up the road or something", when he had tried to intervene when he saw a young girl being bashed. The appellant said he had been pushed against a car and that two bouncers had also intervened, given him $20 to get a taxi and told him "they would handle the situation". Mr Brooks also observed a small scratch on the appellant's head. At the time, the appellant was wearing grey tracksuit pants, a t-shirt and sneakers, which was the clothing which Mr Brooks described as being what the appellant "always wore". 16 Another resident, Rosemary McKenzie, said that she saw the appellant at about lunchtime after 12 noon, on 16 July in Bourke Street, Surry Hills. Ms McKenzie didn't notice anything unusual in the manner in which the appellant was walking. Ms McKenzie also gave evidence of sighting the appellant on Wednesday 17 July. In her evidence-in-chief, she said that she saw the appellant between 4 and 5pm on that day, walking by himself at Northcott. She again said that she did not observe anything unusual about the way he was walking on this occasion. However, in cross-examination, she said that she was nowhere near Northcott on Wednesday 17 July and didn't see the appellant. 17 Another resident of the Cleveland Street share house, Leslie McKenzie, saw the appellant on a Tuesday or Wednesday in July 2002 and observed him to be limping. Mr McKenzie enquired about that and the appellant said, "Don't ask". 18 There was no doubt that the appellant had sustained an injury to his leg and his head. Shortly after his arrest on 18 July, the police arranged for the appellant to have medical attention because he appeared to be suffering pain and seizures. The attending ambulance officer, Sally Quinn, said that when she first spoke with the appellant at the police station, he told her that he had left leg pain in the upper thigh and groin. He denied that he had sustained any trauma and said that he was "detoxing" and was suffering from diarrhoea and vomiting. Ms Quinn thought that the appellant may have had a slight limp and that he appeared to wince as he climbed into the ambulance. 19 The appellant was seen by Dr Christopher Gregory at Sydney Hospital Emergency Department. The appellant complained to Dr Gregory of a painful left thigh, but the triage notes recorded a complaint of abdominal pain. Dr Gregory took a history of "thigh pain for some days" and also noted a bruise to the left thigh. Dr Gregory recorded in his notes that the appellant was reticent or reluctant to tell him how he had bruised his thigh.

Forensic examination of the deceased's unit 20 The police examination of the deceased's unit revealed that there had been no sign of any forced entry into the unit. The appellant's black Targus bag containing clothing, valium tablets and a set of keys, including one that fitted the front door of the unit, was located in the lounge room. The appellant's wallet was located under a cushion of a lounge chair. A metal attachment for a cooking pot handle and two buttons were found in the hallway. There were two buttons missing from the deceased's shirt and the buttons found in the hallway matched those remaining on the deceased's shirt. There was no disturbance to the bathroom or the main bedroom, which was set up as an office. A metal cooking pot without a handle lay at the entrance to the second bedroom, together with a number of personal papers and cards in the deceased's name. Another metal cooking pot, a frypan and other items were found on the bed in the second bedroom. In the corner of that room there was some bloodstained grey material and toilet paper and the carpet in the corner was very wet with what appeared to be water. A black plastic handle of a cooking pot and a metal screw were located on the bedroom floor. This handle appeared to have come from a cooking pot found at the entrance to the bedroom. Detective Sergeant David Neal, who undertook the forensic examination of the unit, considered that a struggle had taken place in this bedroom. 21 The deceased's body itself was lying on its side, facing towards the bedroom door. There was a large amount of blood on the carpet around the deceased's head and blood had run down the deceased's face. His back was wet and the wetness had a strong smell of alcohol. Detective Neal formed the view that, having regard to the blood on the deceased's face and the lividity which had settled on the deceased's back and right side, the deceased had not been moved post death. Detective Neal was not able to say whether the extent of the bloodstain around the deceased's head was due solely to having oozed from the wound, or whether it had been spread around, for example, by somebody's feet as they walked in that area. Detective Neal observed that the carpet was very cheap, so that the blood would easily soak in. He did not find any pattern or any type of shoe print in that area. 22 There was blood smeared on the bedcover, which was consistent with transference, rather than a spatter. There was a spattering of blood on the walls in various parts of the unit. The first spatter was observed on the western wall of the lounge room, close to the ground. Detective Neal considered that that blood had been aspirated from either the mouth or nose of the victim lying on the floor facing that wall. There were also several drops of blood on the carpet in that area. There were smears of blood on each of the walls in the second bedroom. Although described as "smears" in his evidence-in-chief, Detective Neal said in cross-examination that the blood on the walls in the bedroom was more consistent with a "spatter" than a "smear". He said that, from the spatter, it appeared that the deceased had been in different areas of the room when the blood was spattered onto the wall. 23 A fingerprint examination of the scene revealed fingerprints of the deceased and the appellant, as well as a number of unidentified prints. The appellant's fingerprints were found inside the front door and outside a kitchen cupboard, as well as two prints on a glass with liquid in it found in the kitchen sink. The fingerprint identification was not able to establish how long the fingerprints had been laid down, although it was said that they appeared to be "strong". 24 Forensic examination of the appellant's clothing revealed that the deceased's DNA was located on the appellant's polo shirt and tracksuit pants. The stain on the appellant's tracksuit pants was not visible to the naked eye. There were two areas on the polo shirt where blood stains were located. Two spots of blood were found on the left sleeve at the shoulder of the polo shirt. An initial test confirmed that that stain was human blood. A second area on the neckline of the polo shirt beside one of the button holes also tested positive for blood, although no test was conducted to determine whether it was human blood. 25 Of the two samples of blood found on the sleeve of the polo shirt, only one was submitted for DNA analysis and the other one was stored. The result of the DNA analysis of the spot on the tracksuit and the spot on the polo shirt revealed that the DNA recovered had the same profile as the deceased. The analyst who carried out the DNA analysis, Sharon Neville, said that she did not believe that the blood found on the polo shirt was likely to have survived a clothes wash. 26 The deceased's DNA evidence was also found on the base and handle of the frypan, on the base of the cooking pot and on the base of the smaller saucepan. 27 The deceased's blood analysis indicated a blood alcohol reading of 0.12 per 100ml of blood.

First ground of appeal: that the verdict of guilty is unreasonable 28 Before turning to the arguments raised by senior counsel for the appellant, by which he sought to establish that the jury's verdict was unreasonable, it is convenient to consider the principles which govern a case based upon circumstantial evidence, as was the position here. These principles are not new. They were stated by Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375; [1936] HCA 23 and again by his Honour as Chief Justice in Plomp v The Queen (1963) 110 CLR 234 at 243; [1963] HCA 44. 29 The principle was summarised briefly in R v Hillier (2007) 81 ALJR 886; [2007] HCA 13 in the joint judgment of Gummow, Hayne and Crennan JJ, with which the Chief Justice agreed. At [46], their Honours said: "The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: see, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J." 30 Their Honours pointed out that the jury's assessment of the evidence has to be considered in its totality and it is not permissible to consider the evidence piecemeal. In this regard, their Honours referred to the statement in Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7 where Gibbs CJ and Mason J said at 535: "At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen (1980) 71 Cr App R 228 at 231.

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279, cited in Reg v Van Beelen (1973) 4 SASR 353 at 373; and see Thomas v The Queen [1972] NZLR 34 at 37-38, 40 and cases there cited." 31 In Plomp, Dixon CJ, in dealing with an argument that motives of the accused could not be taken into account until it was otherwise shown by evidence that in some physical way, the accused's actions were responsible for the accused's wife's death, said that there was no legal doctrine to that effect. Rather, he said at 242: " All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. " (Emphasis added) 32 In his closing address to the jury, the Crown relied on six specific circumstantial factors supporting the case that the appellant had murdered the deceased. First, there was the association between the appellant and the deceased. Next, there was no forced entry into the deceased's unit and there was evidence of the appellant's presence in the vicinity during the period in which the deceased was killed and, therefore, opportunity to commit the crime. In addition to that, the appellant's bag was found in the unit. The Crown further relied upon the appellant's obvious limp, as observed by a number of people on the afternoon of Tuesday 16 July and as observed by police and medical staff on 18 July, when he was first arrested. Finally, there was the deceased's blood on the appellant's clothing. The Crown acknowledged that there was no evidence of motive. 33 Senior counsel for the Crown told the jury that this collocation of evidence and circumstances proved that the appellant was at the Northcott building on the morning of 16 July. In this regard, he referred to the evidence of Ms McKenzie, who had seen the accused shortly after 12 noon on that day, walking past Edward Eager Lodge; and the evidence of Mr Skerry, who said that he last saw the deceased in the company of the appellant between 11am and 1pm on 16 July, on which occasion they were drinking together. In relation to this last aspect, it appears that the Crown relied on the totality of Mr Skerry's evidence, which varied from saying that he had seen the appellant between 11am and 12.30pm and between 12.30 and 1pm. 34 In his argument on the appeal, senior counsel for the appellant contended that the matters upon which the Crown relied did not withstand reasonable analysis. Indeed, he submitted that the effect of the Crown case was that the appellant must have suffered his injury prior to the death of the accused. He relied upon the following 'chronology' to establish his point. First, he referred to the Crown case that death occurred between 2pm on 16 July and 8am the following morning, 17 July. According to Mr Shumba, the appellant was in his company from between 12 noon and 1pm, that is, prior to 2pm, when the appellant returned to the room they shared and stayed in his company until about 10.30pm that night. When he returned to his room, Mr Shumba observed the appellant limping. Mr Skerry, for his part, had said that he saw the appellant in the company of the deceased during a period which varied, but extended from 11am to 1pm on 16 July. Senior counsel for the appellant submitted, therefore, that the last opportunity the appellant had to commit the crime was no later than 1pm on 16 July. However, on the Crown's case, the deceased died sometime between 2pm on 16 July and 8am on 17 July. 35 Two comments can be made about this submission. Although in the way the Crown formulated its case, the time of death was between 2pm on 16 July and 8am on 17 July, Dr Cala, in his evidence, did not confine the time of death of the deceased to 2pm on 16 July. Rather, he said that death could have occurred earlier. Secondly, this particular chronology gives an exactitude to the time frames of the relevant events of which the witnesses gave evidence, which could be questionable. However, the more relevant evidence is that of Dr Cala. If the jury accepted his evidence that the time of death could have been earlier than 2pm on 16 July, then the evidence of Mr Skerry and of Mr Shumba, upon which the appellant relies, does not establish that the Crown's case could not be correct. Rather, the evidence to which I have just referred, including that of Dr Cala, was a matter for assessment by the jury. 36 The Crown's reliance upon the appellant's limp was as inferential evidence that the appellant had injured himself during the course of the attack on the deceased. The Crown acknowledged that there was no medical evidence as to whether the injuries sustained by the deceased and, in particular, injuries that were most likely to have been caused by jumping or kicking, would, in turn, have caused the injury sustained by the appellant to his leg. However, the Crown relied upon the different versions the appellant gave to various witnesses as to how he had sustained that injury to indicate that the appellant was seeking to "cover up" the cause of that injury. The Crown outlined each of the versions to which I have referred at [12]-[19] above. 37 Senior counsel for the appellant submitted, however, that the different versions upon which the Crown relied did not have the degree of inconsistency for which the Crown contends. He submitted, therefore, the relevance that the Crown sought to attach to those inconsistencies could not be sustained. Senior counsel referred first to the evidence of Mr Brooks, in which the appellant was heard to make reference to being pushed and falling back onto a car. Then, the appellant told Mr Shumba that "he got hit by a car on the way back home". When Mr McKenzie asked him about his limp, the appellant said "Don't ask". 38 Senior counsel for the appellant submitted that the version given to Mr Brooks and to Mr Shumba were not inconsistent. They both related to the injury having occurred as a result of contact with a car. When Mr McKenzie asked the appellant about his limp, the appellant deflected the enquiry by saying "Don't ask". Senior counsel for the appellant submitted that this last response does not have the adverse connotation sought to be drawn from it by the Crown. Rather, senior counsel submitted that it was consistent with the appellant simply having had enough of inquiries and brushing them off. The Crown also relied upon the fact that the appellant refused to give an explanation to Dr Gregory as to how he had injured his leg. However, as senior counsel for the appellant pointed out, Dr Gregory asked the appellant about bruising to his left side, rather than his limping. 39 In my opinion, these matters were appropriate matters to put to the jury for their consideration. The appellant does not argue that the trial judge failed to give an appropriate direction in respect of this material. Rather, he contends that the Crown case did not have the strength that the Crown contended. However, that was a matter for the jury as part of its assessment of the circumstantial Crown case. 40 The appellant next submitted that the emphasis placed upon the presence of the deceased's blood on his clothing was misguided. The appellant pointed out that the total DNA found on his clothing was three specks (although the evidence seemed to be only two specks containing the deceased's DNA), one of which was not visible to the naked eye. There was no blood on his shoes, nor was there any blood on the lower part of his tracksuit pants, which might have been expected, should the deceased's injury have been caused by stomping or kicking. 41 This last submission was based upon the evidence of Professor Hilton, a consultant in forensic medicine with experience over a 30 to 40 year period. Professor Hilton agreed with Dr Cala's evidence that the injuries to the trunk of the deceased and, in particular, the broken ribs, were highly suggestive of kicking or stomping or a combination of both. Professor Hilton was of the opinion that the injury to the deceased's right cheek was more suggestive of the imprint of, for example, a "soft sort of a shoe", rather than having been caused by an implement such as a saucepan or a frying pan. 42 Professor Hilton expressed the opinion that it was likely that if the deceased was stomped on or kicked in the head region, that blood would be projected or transferred onto the shoes of the attacker. Professor Hilton was also asked about the likelihood of discernable blood spatter patterns on the cuff or lower leg area of long pants, if an attacker had stomped on or kicked the body of the victim. He said that in that circumstance, blood in the mouth or in the upper respiratory passages could well have been projected out of the victim's mouth and nose. He said that, in circumstances of someone standing close by, or indeed over the deceased, engaged in either kicking or stomping, it would be likely and more probable than not, although not necessarily the case, that blood would have been projected out of the victim's mouth or respiratory passages, so as to spatter onto the lower part of a trouser leg. 43 Professor Hilton said it was likely, if the victim had been kicked in the area where there was bleeding around his head, that blood would have been projected onto the footwear or lower garment area of the attacker, but that it would be unlikely to reach up to the shoulder or collar. Professor Hilton also said that, having regard to the injuries which had been inflicted on the deceased, he would have expected a greater transfer of blood than was found, but it was not necessarily the case that there would be such transfer. However, as Professor Hilton agreed, the injuries to the trunk were all closed injuries, so that no blood would have spattered onto the assailant's clothes from the injuries to the trunk. 44 However, in cross-examination, Professor Hilton accepted that in circumstances where the deceased's blood had come in contact with the cooking implements found in the room, if those cooking implements were "being flailed around and used as weapons", then blood could have spattered onto the walls in the bedroom and could also have been spattered onto the shirt and upper part of the trousers of the attacker. 45 In my opinion, the cross-examination of Professor Hilton significantly undermines the thrust of the appellant's submission on this point. The appellant's argument was that, having regard to the injuries sustained by the deceased, it was probable that there had been a spray of blood from the deceased's nose or respiratory passages during the course of the attack, or from the external wounds on the face area. It was submitted that that spray would, probably, have spattered onto the lower parts of the attacker's trousers and shoes. However, as no such spatter was found on the appellant's clothes or shoes, it was submitted that it was unlikely that the appellant was the attacker. 46 However, it was not established that the injury to the face was an injury caused by being kicked and, the injuries to the torso did not involve any open wounds. If, during the course of infliction of those injuries, any blood was projected from the deceased's mouth or nasal passages, it would not necessarily have spattered onto the attacker's clothes. Whether it would have done so, would depend upon where the attacker was standing in relation to the victim's head. It might also depend upon whether the injuries to the body were inflicted before or after the injuries to the head which caused the bleeding. 47 The appellant submitted that the blood on his clothing could have been deposited there during the course of the appellant assisting the deceased. The appellant's case was that he had been staying at the premises, looking after the deceased for a few days, prior to the deceased's death. Whilst that was an available explanation, there was no evidence that the deceased was at that time ill, except that he was on medication and that he was frail. 48 The appellant also referred to the unlikelihood that he would have returned to the premises, in the company of Mr Shumba, for the purposes of trying to find his bag, if he had murdered the deceased. 49 In my opinion, none of the matters upon which the appellant relied established that the jury's verdict was unreasonable. There was a significant body of circumstantial evidence that pointed to the appellant as the assailant. The appellant knew the deceased, he had a means of access to the unit, either by having a key or, alternatively, by the deceased opening the door to him. The appellant left the unit on 15 July and he was observed to take his bag with him. He had clearly returned to the unit between 15 July, when he was ejected by the police and 2.30pm 17 July, when the deceased's body was discovered, because his bag, which he had taken with him when he left on 15 July and his wallet, were found in the unit. Further, he was seen in the company of the deceased on 16 July at a time which was proximate to the time of death. The deceased's DNA was found on the appellant's clothing in circumstances where there was a rational explanation of how it could have got there, namely, by having been "thrown off" one of the cooking implements which had been used to batter the deceased. 50 Although alternative explanations were available in respect of some, at least, of the evidence to which I have referred, at the end of all the evidence, the comments of Gibbs CJ and Mason J in Chamberlain [No 2] to which I refer above, are particularly pertinent: "the jury may find that one piece of evidence resolves their doubts as to another". In my opinion, the appellant has not established that the verdict of the jury was unreasonable. Accordingly, Ground 1 should be rejected.

Ground 2: application under the Mental Health (Criminal Procedure) Act 51 The appellant was sentenced by the trial judge on 22 April 2005. The appellant adduced psychological and psychiatric evidence in his sentence hearing. Anna Robilliard provided a psychological report dated 8 December 2004. She reported that the appellant's performance on the Millon Clinical Multiaxial Inventory - III indicated that he was a Schizoid individual with Depressive, Dependant elements. Ms Robilliard also noticed that his Alcohol Dependence was readily evident. Ms Robilliard reported that the appellant was "quite paranoid … and he perceives himself as potentially in danger". 52 Dr Olav Nielssen, Psychiatrist, who had attended the appellant as a visiting psychiatrist at the Metropolitan Remand Centre, also reported on the appellant for the purposes of his sentencing hearing. Dr Nielssen reviewed the prison records and observed that he had seen the appellant on four occasions between 5 December 2002 and 20 March 2003. It appears that the consultation on 20 March 2003 was the last prior to the appellant's trial in October 2004. On 20 March 2003, Dr Nielssen recorded that the appellant was fit for trial. 53 Dr Nielssen reviewed the appellant, together with the prison medical records, the police facts in relation to the charge, a transcript of the appellant's criminal history, a report by Ms Robilliard dated 8 December 2004 and other medical records, which recorded numerous short periods of hospitalisation from the early 1990s onwards. Dr Nielssen diagnosed alcoholic dependence and abuse, brain damage secondary to trauma and alcohol abuse and schizophrenia. Dr Nielssen noted that the alternative diagnosis to schizophrenia was of alcoholic hallucinosis, resulting in enduring persecutory beliefs. However, Dr Nielssen considered that the appellant's presentation was more consistent with a schizophrenic illness than with an alcohol-related psychotic illness. Dr Nielssen expressed the opinion that the appellant's underlying psychiatric disorder was likely to have resulted in an abnormality of the mind at the time of the offence. He added: "Moreover, [the appellant's] refusal to raise his abnormal mental state in his defence casts doubt on his fitness for trial." 54 The appellant informed Dr Nielssen that, although he remembered having been prescribed anti-psychotic medication when he was first remanded in prison, he stopped taking the medication a short time thereafter. 55 Dr Nielssen gave oral evidence at the sentence hearing. During the course of his cross-examination, he confirmed his opinion that he considered that the appellant's "main problem" was an "underlying mental illness" rather than any psychosis related to severe alcohol withdrawal. He was then asked: "Q. And in relation to any [ Presser ] test he seems to meet the minimum standards that would be required under that test to be fit to be tried? A. In all respects except for the inability to raise one of the possible defences, the effect of his abnormal mental state, because he didn't recognise that he has had an abnormal mental state.

Q. In terms of your conclusions, doctor, given the statement that you make, he did have a detailed knowledge of aspects of his case. Your conclusion seems to suggest that, perhaps, a question of fitness is based, I take it, on his failure to notify or inform his legal representatives of these difficulties he had in the past? A. That's right. Because I don't think he recognises that he has been mentally ill, and hence it is not raised. I do think it's relevant because the pattern of symptoms may have been a contributing factor." 56 The reference to the "Presser" test is a reference to the test which is applied by the courts in determining whether a person is fit for trial. I deal with this further below. Immediately after the conclusion of Dr Nielssen's evidence, counsel for the appellant addressed the trial judge. He stated that the purpose of calling evidence in relation to the appellant's mental state was so as to support a submission in relation to general deterrence. At no point did counsel for the appellant raise any question in the sentence hearing as to the appellant's fitness for trial. 57 Senior counsel for the appellant on the appeal indicated that that evidence, of itself, raised an issue as to the appellant's fitness. 58 Dr Nielssen was also called to give evidence on the appeal and confirmed his view that the appellant's refusal to raise his mental state at trial raised a doubt as to his fitness, as did his persecutory beliefs. Dr Nielssen explained that the appellant did not have any understanding that he was mentally ill - indeed, he told Dr Nielssen that he was not mentally ill. Dr Nielssen considered that although the appellant's cognitive performance was unimpaired, as he did not have any insight as to his mental illness, he was not able to give any instructions to his legal representatives as to his mental state at the time of the murder, so as to enable any consideration to be given to a defence based upon his mental state. Dr Nielssen was cross-examined by the Crown as to how the appellant's abnormal state affected his fitness for trial. He reiterated that the appellant did not recognise that he was ill and, further, he did not recognise how he was ill. Dr Nielssen said that this affected the appellant's capacity to give detailed instructions on his mental state. 59 The Crown also called evidence on the appeal from Dr Rosalie Wilcox, Psychiatrist. Dr Wilcox agreed that the appellant now suffered from schizophrenia, although she said that it was unclear when the illness developed. She accepted that that had been the diagnosis since 2002 and as I understand her evidence, she did not seek to dispute that. The trial was in October 2004. Dr Wilcox observed that the appellant's symptoms were reasonably controlled on a low dose of medication. She observed that Dr Nielssen had found the appellant fit for trial in 2002, but agreed in cross-examination that the appellant's fitness for trial could have changed dramatically in a period of 19 months.

Mental Health (Criminal Procedure) Act 60 Part 2 of the Mental Health (Criminal Procedure) Act specifies the procedure which is to be undertaken in circumstances where there is a question as to a person's unfitness for trial. 61 There has been an amendment to the Act since the trial, although that amendment does not affect the fundamental question of what is meant by the phrase "unfitness to be tried". The amendment relates, relevantly, to the procedure to be followed if a question of unfitness for trial arises. The term "unfitness to be tried" is itself not defined in the Act. There is a long line of authority to which I shall refer shortly to the effect that the phrase maintains its common law meaning. 62 The question of unfitness may be raised by any party to the proceedings, or by the Court itself: s 5. Pursuant to s 7, the question of a person's unfitness to be tried is, so far as is practicable, to be raised before the person is arraigned, but "may be raised at any time during the course of the hearing of the proceedings in respect of the offence". Sections 8 and 9 specify the procedure which must be followed when a question of unfitness is raised, depending upon whether it is raised before arraignment: s 8; or after arraignment: s 9. Section 9 is relevant here. It provides: "If the question of a person's unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence." 63 Section 10 then governs the procedure if the Court determines that an inquiry should be conducted. Section 10(2) provides that the Court must not conduct an inquiry into the question of a person's unfitness to be tried unless it appears to the Court that the question has been raised in good faith. It has not been suggested here that the question of unfitness has not been raised in good faith. Section 10(3) provides that before conducting an inquiry, the Court may do a number of things, including adjourning the proceedings and requesting the person to undergo a psychiatric or other examination. The question of a person's unfitness to be tried is to be determined by the Judge alone: s 11. In the form the legislation was at the time of trial, the question of unfitness was to be determined by a jury constituted for that purpose. 64 As I have already stated, the meaning of "unfitness to be tried" has a long common law pedigree. I reviewed the authorities recently in Clarkson v Regina [2007] NSWCCA 70. The authorities indicate that the courts have continued to determine the question of unfitness to be tried on the basis of the approach of Smith J in R v Presser [1958] VR 45 (the "Presser" test). Smith J said at 48, in identifying that the question to be determined in ascertaining whether an accused was unfit for trial was: "… 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 … 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 … 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." 65 The High Court has applied the "Presser" test in Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18; Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41; and Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29. In each of those cases, the Court has emphasised the need for the capacity of the accused to understand the proceedings at trial so as to be "able to make a proper defence": see Ngatayi v The Queen, Gibbs, Mason and Wilson JJ at 9. 66 Senior Counsel for the appellant submitted that the evidence of Dr Nielssen on the sentence hearing "raised a question of unfitness to be tried" and that as the matter was raised prior to the conclusion of the sentencing proceedings, the question had been raised "during the course of the hearing of the proceedings in respect of the offence" within the meaning of s 7. Senior counsel for the appellant further submitted that even if the matter was raised post-sentence, for example, on appeal, the Court was obliged, if a question did arise, to follow the procedures under the Mental Health (Criminal Procedure) Act. 67 A similar situation had arisen in Kirkwood v Regina [2006] NSWCCA 181. The appellant in Kirkwood suffered from Asperger's Syndrome and had been diagnosed over a number of years as suffering from a range of psychiatric disorders. In that case, the appellant had pleaded guilty to two offences and was sentenced to a term of imprisonment for each offence. He appealed against the conviction and contended that a question had arisen as to the propriety of the convictions, because he may have been unfit to be tried. Dr Nielssen had earlier examined Mr Kirkwood, in 2000 and 2001 and had formed the view then, in relation to other criminal proceedings, that he was unfit to be tried. Dr Nielssen also gave evidence at the hearing of the appeal in that matter. 68 Johnson J (McClellan CJ at CL and Latham J agreeing) considered that the conviction should be quashed. His Honour noted that the first time that any psychiatric evidence had been before the Court was when the matter was before the Court of Criminal Appeal that day. Dr Nielssen gave evidence to the Court of Criminal Appeal that, by reference to the Presser test, it was more probable than not that as at the date of the appellant's conviction for the subject offences, he was unfit to be tried. Johnson J said at [13]: "The test to be applied by the Court in these circumstances is clear. If there is material before the Court which raises a question about the propriety of a conviction on the basis that the Appellant may have been unfit to stand trial, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the trial court, acting reasonably, must have found that the Appellant was fit to stand trial: R v RTI (2003) 58 NSWLR 438 at 449; R v Rivkin (2004) 59 NSWLR 284 at 296; R v Henley [2005] NSWCCA 126 at [4]." (Emphasis added) 69 The Court quashed the conviction and a new trial was ordered. In ordering a new trial, Johnson J was cognisant that the question of any unfitness to be tried would be governed by the legislation in the form it took at the time of any such new trial: see R v Henley at [15]. 70 In R v RTI the question of the accused's fitness for trial again arose post-conviction. Howie J (Tobias JA and Shaw J agreeing) said at [21]: The Crown concedes that, based upon all the material available, the appellant was unfit at the time of the trials before Twigg DCJ. It is unnecessary for this Court to determine whether the appellant was unfit at that time. In order to enliven this Court's jurisdiction, it is sufficient if there is material before the Court raising a question as to the appellant's fitness to stand trial before Twigg DCJ. If such material exists, the Court has to determine whether there was the possibility of a miscarriage of justice arising. If the appellant was unfit at the time of the two trials before Twigg DCJ, each of those trials was a nullity and the convictions would have to be quashed." 71 At [31], Howie J said: "… If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the court can come to that finding that there will be no possibility of a miscarriage of justice." 72 In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 the Court (Mason P, Wood CJ at CL and Sully J) adopted the statement of Howie J as being a correct statement of the law. 73 In Rivkin, the question of unfitness arose in circumstances where Mr Rivkin was suffering a temporary condition which was amenable to treatment and which had been reversed by the time the matter was heard in the Court of Criminal Appeal. The Court observed at [296] that, as at the time it was hearing the appeal, no current question of fitness arose. That, however, was not the matter in issue. The central question in issue was whether, in circumstances where an accused person had a reduced capacity to understand and follow the proceedings in each of the aspects identified in Presser, but had some capacity to do so, that person was unfit to be tried. 74 The Court determined that question against Mr Rivkin. Their Honours pointed out that the test in Presser was directed to the "minimum requirements for a fair trial". They said that, provided that an accused person could understand and follow the proceedings in each of its facets, give appropriate instructions and present a proper defence to the charge, then that person was to be regarded as fit to be tried. The Court said it was irrelevant to the question of fitness that the accused might have done so in a better way if suitable medical treatment or medication had been provided, or, for example, had the accused possessed greater intelligence or acuity of mind. Their Honours pointed out at [301] that the Presser test does not contemplate or assume that an accused person is able to perform at trial according to his or her maximum potential. 75 Their Honours observed in their judgment that the appellant had been able to give evidence and it was apparent from the transcript that he had a clear understanding of what was involved with the offence and was able to make the answer which he wished to make to it. The Court concluded that it should not intervene so as to quash the conviction, given the circumstance to which I have just referred and the absence of evidence from his legal advisors to suggest they had problems in relation to the taking of instructions or explaining the proceedings to him and in the absence of any evidence from the appellant to that effect. 76 Their Honours considered that this approach had support in the judgment of Gleeson CJ in Eastman v The Queen. In Eastman, Gleeson CJ, at [26], referred to the Canadian decision of R v Taylor (1992) 77 CCC (3d) 551 at 564-565 and set out four propositions relating to the question of unfitness to be tried, which were accepted as representing the state of the authorities in that province. Those propositions were: "(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial. (b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial. (c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial. (d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial." 77 Gleeson CJ, at [27], observed that, in Australia, the ultimate test to be applied was the statutory test, but said that each of the propositions stated in R v Taylor was sound and consistent with the statutory test. 78 In this case, neither the appellant, nor his legal advisors at trial gave evidence to the Court on the question of the appellant's unfitness. 79 It was not suggested that the appellant had not been able to give appropriate instructions during the course of the trial. The transcript revealed cogent cross-examination of witnesses by the appellant's counsel. It also appears that attention was given to the conduct of his defence, particularly in the calling of Professor Hilton. However, there has been psychiatric evidence both before the Court at first instance since the sentence hearing and before this Court, that there was a question as to the appellant's unfitness to be tried due to his lack of insight into his mental illness. 80 In my opinion, the medical evidence at sentence and the evidence before this Court raises a question of the appellant's unfitness to be tried, in particular, in respect of his ability to make a proper defence to the charge. Dr Nielssen's evidence was that the appellant's lack of insight into his medical condition meant that he was not able to give instructions to his lawyers at the time of his trial. Dr Wilcox's evidence did not contradict that evidence. Dr Nielssen's evidence was, in my opinion, persuasive. This Court does not have to determine that the appellant was unfit to be tried, although it will not intervene if it is satisfied that had the question been raised before or during the trial, the appellant would have been found fit: see Kirkwood at [13]. I am not satisfied on the evidence as it now stands that the appellant would have been found fit for trial had the matter been raised at his trial. 81 Therefore, in accordance with the principles stated in RTI and adopted by this Court in Rivkin, the conviction must be quashed. It is irrelevant that the appellant may, on a retrial, be found to be fit, or even that a question of unfitness might, at that stage, not arise. That is a possibility in this case, in circumstances where the medical evidence is that the appellant's unfitness, if that is established, may have been due to a failure to take his medication. If the appellant remains on appropriate medication, the question of unfitness may not arise at a new trial. However, that is not a question for this Court. It follows that, in my opinion, the appeal should be allowed and the conviction quashed and a new trial ordered.

Sentence 82 Having regard to the conclusion to which I have just come, it is not necessary to deal with the application for leave to appeal against sentence. 83 The Orders I propose are as follows:

4. Dismiss the application for leave to appeal against sentence. 84 JAMES J: I agree with Beazley JA. 85 HIDDEN J: I agree with Beazley JA. **********

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