Director of Public Prosecutions v Woodruff (Fitness ruling)
[2016] VSC 157
•15 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0001
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN WOODRUFF |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 and 16 March 2016 |
DATE OF RULING: | 15 April 2016 |
CASE MAY BE CITED AS: | DPP v Woodruff (Fitness ruling) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 157 |
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CRIMINAL LAW – Fitness to stand trial – Accused found by jury to be unfit to stand trial – Accused unlikely to become fit within the next 12 months – Special hearing to be held – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 6(1), 11(4)(a), 12(5)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hevey | Solicitor for Public Prosecutions |
| For the Accused | Mr G Georgiou SC Mr A Waters | Galbally & O’Bryan Lawyers |
HER HONOUR:
The accused man, John Woodruff, is charged with the murder of Barry Gray, aggravated burglary, and three counts of theft.
The prosecution alleges that Mr Woodruff broke into Mr Gray’s home in Rye on 17 May 2013, fatally stabbed him, and then stole his car. It is further alleged that, two days later, Mr Woodruff stole another car and some petrol from a service station. Mr Woodruff was arrested in Albury, New South Wales, on 20 May 2013. He was sleeping in a car parked at his grandmother’s home at the time.
Mr Woodruff, who was 22 years old at the time of the alleged offending, suffers from schizophrenia. Although he was first diagnosed with that condition in early 2013, prior to the offending, he had been receiving psychiatric treatment since at least 2009. His psychotic symptoms include hallucinations and delusional thinking. His bizarre beliefs include: that he is being controlled by a force that comes from aliens via satellite technology; that people are talking about him and he is in danger; that he has been given special powers; that the Greek god, Zeus, is inside him; and that he hears the voice of God. He also experiences some olfactory hallucinations, in which he believes he is being forced to smell foul things.
He reported experiencing some of these symptoms at the time of the alleged offending. What contribution his schizophrenia may have made to the alleged offending will be for a jury to determine in the future.
Following his arrest, Mr Woodruff was initially remanded in custody in New South Wales. He was transferred to Victorian custody in September 2014. He was later transferred from the Melbourne Assessment Prison to the St Paul’s Psychiatric Unit at Port Phillip Prison.
At the first directions hearing in this court, on 19 January 2015, defence counsel said that Mr Woodruff would plead not guilty on the grounds of mental impairment. Thereafter, both the prosecution and the defence took some months to obtain their own psychiatric assessments concerning the possible mental impairment defence.
In the course of undertaking those assessments, concerns arose as to Mr Woodruff’s current capacity to stand trial. In a report dated 30 June 2015, the defence psychiatrist, Dr Lester Walton, expressed the opinion that Mr Woodruff was unfit to be tried.
The matter came on for further directions on 13 July 2015. The prosecution asked for time to have their own psychiatrist assess Mr Woodruff’s fitness to be tried.
A report dated 13 August 2015 was prepared by Dr Carolyn Simms of the Victorian Institute of Forensic Mental Health (“Forensicare”). In her report, Dr Simms also concluded that Mr Woodruff was not currently fit. However, she did not consider that to be a permanent finding, given Mr Woodruff’s poor compliance with treatment.
Under the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (“the Act”), where there is a real and substantial question as to the fitness of an accused person to stand trial, the question of fitness must be decided by a jury by a special procedure, called a fitness investigation. Even if (as here) both sides’ experts agree that the person is unfit, the Act requires that the question of fitness be determined by a jury, not a judge.
Given the psychiatrists’ opinions, on 14 August 2015 Lasry J set the matter down for a fitness investigation on 19 October 2015.
In preparation for the fitness investigation, Dr Walton attempted to examine Mr Woodruff on two occasions. He was unable to do so, because Mr Woodruff was psychiatrically unwell; he had been presenting with behavioural issues, including violence towards prison staff.
On Thursday, 15 October 2015, the court received a facsimile from Mr Woodruff’s treating team at Forensicare, which stated that Mr Woodruff was too unwell to attend court the following Monday, due to his psychotic state, and was currently awaiting transfer to Thomas Embling Hospital (“TEH”).
I brought the matter on for urgent mention the next morning. Both sides agreed that the fitness investigation could not proceed on the following Monday, given Mr Woodruff’s current mental state. I was informed that if Mr Woodruff was properly medicated at TEH, there was some possibility that his mental state could stabilise, such that he would become well enough to face a criminal trial; however, it would take at least six weeks to see how the medication was working.
Accordingly, I listed the matter for further directions on 8 December 2015, to see whether there was any improvement in Mr Woodruff’s mental state. I also fixed the matter for a fitness investigation on 16 March 2016 (which was later brought forward to 15 March 2016).
Mr Woodruff was transferred to TEH on 4 November 2015. Unfortunately, no bed was available at TEH prior to that time, notwithstanding his psychotic state.
At the directions hearing on 8 December, I was informed that Mr Woodruff had been commenced on depot medication two or three weeks earlier. Although there was some suggestion of improvement, Mr Woodruff’s condition had fluctuated.
Dr Walton assessed Mr Woodruff again on 29 January 2016. In his 1 February 2016 report, he described Mr Woodruff as suffering from treatment-resistant schizophrenia. He noted (as had earlier reports by both psychiatrists) that Mr Woodruff does not regard himself as mentally unwell, and would cease his current medication if given the opportunity. Mr Woodruff was not enjoying his placement at TEH, and was expressing a strong preference not to run a mental impairment defence, so that he could receive a finite prison sentence rather than an indefinite custodial supervision order at TEH. Dr Walton said that there had been some improvement in response to the current medication regime, and expressed the following opinion:
While it is the case that Mr Woodruff’s persisting delusions and lack of insight are likely to colour his instructions and his choice to plead to the charge, all things considered I do regard him as fit to be tried.
On 25 January 2016, Dr Simms assessed Mr Woodruff again. In her report, dated 1 March 2016, she discussed the information provided to her by Mr Woodruff’s current treating psychiatrist at TEH; that included the recent expression of bizarre delusional ideas and auditory hallucinations. She noted that Mr Woodruff was only in the early phases of recovery from an acute psychotic episode, and his relative treatment resistance to date would complicate his recovery. Her opinion was that Mr Woodruff currently lacked the capacity to reason meaningfully, and to provide instructions to his lawyers.
Dr Walton assessed Mr Woodruff again on 7 March 2016. He noted Mr Woodruff’s continued reluctance to acknowledge his mental illness, and his desire to return to prison rather than remain at TEH. After referring to Dr Simms’ most recent report, he conceded that “the question of fitness is far from unquestionably unequivocal.” He then made the following observation:
Perhaps reading between the lines to some extent, Dr Simms does seem to suggest that Mr Woodruff’s mental state may continue to improve and I agree that that may be the case, albeit at the glacial rate of progress to date and I doubt that there will be a very significant improvement in his condition, say, within the next 12 months.
On 8 March 2016, Mr Woodruff suffered another psychotic episode, and was placed in seclusion at TEH. He became aggressive towards another patient, who he believed was emitting a foul smell.
It was unclear for some days whether Mr Woodruff would be well enough to attend court for the fitness investigation on 15 March. In the end, he did attend the hearing; however, he chose to spend most of the hearing waiting in the cells, rather than in the court room.
The question of fitness was first raised by the defence. However, given Mr Woodruff’s change of instructions, I determined (after discussion with the parties) that it would be fairest to treat it as a matter raised by the court under s 7(5) of the Act, meaning that no party would bear the onus of proof, but the prosecution would have carriage of the matter.
A jury was empanelled to determine the question of fitness. Dr Simms was called by the prosecution, and Dr Walton by the defence. Both psychiatrists had had an opportunity to assess Mr Woodruff in the cells that morning. Both experts expressed the opinion that, on the balance of probabilities, Mr Woodruff was not fit to stand trial.
Both psychiatrists believed that Mr Woodruff lacked the ability to give instructions to his lawyers.[1] Dr Simms was concerned that Mr Woodruff’s residual delusional beliefs were impacting on his capacity to instruct his lawyers, and Dr Walton was concerned about Mr Woodruff’s inability to make sound decisions.
[1]Section 6(1)(f) of the Act.
Both agreed that Mr Woodruff would be unable to enter a plea, that is to say, to be able to make a rational decision about whether to plead guilty or not guilty to the charges.[2] Dr Simms said he could not give a clear indication of what he wanted to do. Dr Walton said that although Mr Woodruff understood what the words “guilty” and “not guilty” meant, he could not actually apply the words.
[2]Section 6(1)(b) of the Act.
Dr Simms also expressed the opinion that Mr Woodruff would be unable to follow the course of the trial.[3] Dr Walton said that while there was a slight question mark in relation to how Mr Woodruff could follow the trial, he did not have any great concern in relation to that factor.
[3]Section 6(1)(d) of the Act.
Both psychiatrists expressed the opinion that Mr Woodruff would be unable to meet those particular standards for any trial held at the time, no matter what its likely duration.
In returning a verdict of unfitness to stand trial, the jury must have been satisfied, on the balance of probabilities, that Mr Woodruff would not be able to meet one or more of those standards.
Given the jury’s verdict, s 11(4) of the Act requires me to determine whether Mr Woodruff is likely to become fit to stand trial within the next 12 months.
On 16 March 2016, I heard further evidence from Dr Simms, who had spoken overnight to Mr Woodruff’s treating psychiatrist about further treatment options. The defence chose not to call further evidence from Dr Walton.
Any improvement to Mr Woodruff on his current medication regime has been slow and modest.[4] He still experiences bizarre hallucinations and delusional symptoms on a regular basis. In the days leading up to the substantial court hearings in October and March, he experienced serious relapses, which may well have been contributed to by the stress of the impending court appearances.
[4]Mr Woodruff is currently on olanzapine (an antipsychotic, which is taken orally), Diazepam (an oral tranquiliser), and risperidone or Risperdal Consta (an antipsychotic, which is injected fortnightly).
The further evidence from Dr Simms was particularly concerned with the possibility of improvement if Mr Woodruff were to be prescribed a different drug, clozapine. Clozapine is a well-respected drug for treatment-resistant schizophrenia (which Mr Woodruff’s condition has proven to be). Dr Walton described the drug as a treatment of last resort, given its serious potential side effects. Clozapine can be very effective in some cases of treatment-resistant schizophrenia, although its efficacy depends to some extent on the patient complying with the treatment regime.
Even if Mr Woodruff’s treating team decided to prescribe clozapine, it would take some months to establish what an appropriate dosage for Mr Woodruff would be. Although one might know within a few months whether he was responding to the medication at all, it is likely that a minimum of 6 to 12 months would be required to see whether the treatment was leading to any substantial improvement.
Dr Simms expressed the opinion that Mr Woodruff’s condition would be likely to improve over the next 12 months, particularly if he was prescribed clozapine. However, she could not say on the balance of probabilities that his condition was likely to improve to the extent necessary to make him fit to stand trial. Moreover, her opinion is subject to Mr Woodruff taking his medication as prescribed, something he has thus far been reluctant to do (partly because he does not accept he has a mental illness).
Dr Walton’s opinion was that while it is likely that there would be further improvement, it is not certain whether any improvement would be to the extent necessary to be fit to stand trial. Dr Walton did not express an opinion as to the likelihood of Mr Woodruff becoming well enough to stand trial within the next 12 months.
The prosecution urged me to find on the evidence that it was unlikely that Mr Woodruff would become well enough to stand trial within the next 12 months. Defence counsel did not seek to put any position, one way or the other, as to that matter.
It is, of course, to be hoped that Mr Woodruff will comply with his treating team’s recommendations as to treatment, and that there will be a substantial improvement in his condition. However, the question for me to consider is whether it is more probable than not that he will improve in the next 12 months to such an extent that he will be able to stand trial.
Apart from the opinion expressed in the Walton report of 1 February 2016, at no stage in the past 9 months since June 2015 has either psychiatrist expressed an opinion that Mr Woodruff was fit to stand trial. On the one hand, his schizophrenia does not prevent him from meeting all of the minimum standards in s 6(1) of the Act, and the number of standards that he has been unable to meet has varied over time. On the other hand, the standards that he has consistently failed to meet – the ability to give rational instructions to his lawyers, and to decide how to plead – are fundamental to his ability to stand trial. Those particular deficits are particularly problematic, given his long-standing failure to accept that he suffers from any mental illness, and requires medication and treatment in a hospital environment.
If a decision is made to prescribe clozapine, there is some prospect of improvement, although it may take at least 6 to 12 months to see any substantial improvement. However, there remains considerable uncertainty as to what his treatment regime will be, what effect it may have, whether he will abide by it, and whether he will have another relapse.
As already mentioned, the two significant relapses which he has suffered in the past 6 months both occurred within a few days of a significant court hearing. The stress of an impending trial may well cause another relapse in the future, even if he was otherwise improving.
In all the circumstances, I am not satisfied on the balance of probabilities that Mr Woodruff is likely to become fit to stand trial within the next 12 months.
Pursuant to s 12(5) of the Act, I order that these charges be listed for a special hearing under Part 3 of the Act, commencing at 10.30am on 11 July 2016.
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