R v Blackman

[2016] NSWSC 1579

Supreme Court

New South Wales

Medium Neutral Citation:	R v Blackman [2016] NSWSC 1579
Hearing dates:	4 November 2016
Date of orders:	09 November 2016
Decision date:	09 November 2016
Before:	Schmidt J
Decision:	Order made under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) that: 1. The accused Gary Clifford Blackman is currently unfit to be tried for the offences he has been charged with, of murdering Nicole Weate at Tomewin between 2 and 6 April 2014, the offence under s 18(1)(b) of the Crimes Act 1900 (NSW) of unlawfully killing Ms Weate and under s 33(1)(b) of the Crimes Act of causing her grievous bodily harm with intent. 2.    The accused be referred to the Mental Health Review Tribunal. 3.   The accused be remanded in custody, pending further orders of the Court. 4.    Direct the Registrar to provide the following documents to the Tribunal: (i)   A copy of this judgment. (ii)    A copy of these orders. (iii)    Copies of all exhibits tendered in this inquiry.
Catchwords:	CRIMINAL LAW – murder – fitness inquiry – fitness to be tried – Presser and Kesavarajah principles – accused unfit to be tried – orders made under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
Legislation Cited:	Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Kesavarajah v the Queen (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Regina Gary Clifford Blackman
Representation:	Counsel: Mr T Bailey (Crown) Mr J Watts (Accused)   Solicitors: Office of the Director of Public Prosecutions (NSW) Universal Law (Accused)
File Number(s):	2014/104664
Publication restriction:	None

Judgment

1. The accused, Gary Clifford Blackman, has been charged with murdering his partner, Nicole Weate, at the property where they lived together at Tomewin, between 2 and 6 April 2014. He has also been charged with an offence under s 18(1)(b) of the Crimes Act 1900 (NSW) of unlawfully killing Ms Weate and under s 33(1)(b) of the Crimes Act of causing her grievous bodily harm with intent. He has pleaded not guilty to those charges.

2. Shortly prior to the commencement of the hearing in May 2016, a question arose as to Mr Blackman’s fitness to be tried, with the result that the hearing was vacated.

The fitness inquiry

3. An inquiry into Mr Blackman’s fitness to be tried was, accordingly, conducted under s 9 of the Mental Health (Forensic Provisions) Act1990 (NSW). In accordance with s 6, the question of Mr Blackman’s fitness must be determined on the balance of probabilities. Section 12 requires that the inquiry not be conducted in an adversarial manner and that the onus of proof as to the question of Mr Blackman’s fitness does not rest on any particular party to the proceedings.

4. An accused's fitness must be determined in the way discussed in R v Presser [1958] VR 45 at 48, where Smith J said:

"[An accused] 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."

5. In Kesavarajah v the Queen (1994) 181 CLR 230; [1994] HCA 41, an accused with a seemingly unstable psychotic condition was initially found to be fit, but later in the trial there was what might have been a “flare-up” or “florid outbreak”. The question of fitness thus arose again for consideration, but was not further considered by the trial judge, in circumstances where the trial was close to its end. It was observed by the plurality at [35]:

“… In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried. Of course, that is not to exclude from the jury's consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise.”

The evidence of Mr Blackman’s lack of capacity

6. Ms Weate’s body was found in Mr Blackman’s shed, after a friend who also resided at the property approached police. Mr Blackman was then in hospital, where he had been taken by ambulance, after a neighbour found him lying on the floor of the shed, naked, dirty and emaciated, in pain and with swelling to one of his legs, which he thought was the result of a spider bite, as well as cuts to his hands and knees.

7. In hospital Mr Blackman made a number of admissions about Ms Weate’s killing to police, family members and hospital staff, which resulted in him being charged with her murder. Later, however, he denied responsibility for her death, identifying her killer to be the friend who had gone to police, after his admission to hospital. Mr Blackman’s condition eventually raised the question of his fitness to be tried and the reliability of the various incriminating statements which he had earlier made.

8. A number of experts have examined Mr Blackman and his brain has also been examined. In evidence was the indictment; Crown case statement; an outline of the Crown evidence; May and September 2016 reports of the forensic psychiatrist Professor Greenberg; a September 2016 report of the psychiatrist Dr Nielssen; an August 2016 report of the forensic psychologist Dr Pulman; an April 2016 report of the forensic psychologist Mr Sheehan; and as well as the results of MRI imaging of Mr Blackman’s brain undertaken in June 2016.

9. The experts each received a similar history from Mr Blackman, who presented on examination in a state described in various ways such as being unkempt; rather odd in presentation; polite but with limited engagement; not speaking spontaneously, but oriented in time and place; displaying a lack of insight; but denying psychotic phenomena and not expressing delusional beliefs.

10. The history Mr Blackman, now aged 64, gave the experts was also similar. It included a stable upbringing in a family on the lower north shore of Sydney; completion of a motor mechanic’s apprenticeship; work in that trade for some years, before it was abandoned for more lucrative employment, which was also abandoned when Mr Blackman adopted a somewhat itinerant lifestyle, travelling around the country over the course of many years, interspersed with periods of employment; a criminal record, which included brief custodial sentences in Queensland and the Northern Territory for driving while intoxicated and for stealing a vehicle in Western Australia; the onset of heavy alcohol use in his early twenties; no long term relationships or children, apart from the relationship commenced with Ms Weate 12 months before her death; a history of alcohol and cannabis abuse, as well as use of methamphetamine in the weeks before Ms Weate’s death; and purchase of a three acre property at Tomewin in 2006 with an inheritance, where he lived in a shed when Ms Weate was killed.

11. The experts referred to medical and Justice Health records which revealed that Mr Blackman was conscious on admission to hospital on 4 April 2014. On 5 April, he was vague and confused and assessed to be undergoing alcohol withdrawal of mild severity. He was given morphine and a drug to help him sleep and he required assistance showering. On 6 April he was transferred to Tweed Hospital, where he was stable, treated for septic arthritis and later discharged.

12. In custody on 10 April, however, he was so aggressive, abusive and confused that he was readmitted to Grafton Hospital, where questions as to his mental health led to a review by a psychiatrist, to whom he also made some incriminating statements. On 16 April the question of delirium arose. He was transferred to Port Macquarie Base Hospital for surgery to his knee, where on 17 April his agitated, aggressive state raised the question of whether he was undergoing ice withdrawal. He was medically stable by 24 April, although his mental state was still problematic.

13. On 25 April Mr Blackman was again reviewed by a psychiatrist and on 29 April he was discharged to Long Bay Hospital, where he was again psychiatrically reviewed. The severe psychotic symptoms he was then suffering, rambling, claiming to be fighting the devil as a dragon, presenting with bizarre facial gestures, laughing constantly and with spluttering speech, raised the question of whether he was suffering cognitive impairment, secondary to alcohol abuse. He was then aware, however of having been charged with murder, but reported that he had not killed “that girl”.

14. There was little change in Mr Blackman’s state for some time, with possible alcohol dementia with delusions, then being raised. Improvement in his condition commenced at the end of May 2014. In August he commenced treatment for delusions and psychosis, which continued, with the result that he suffered no new episodes of delusions in 2015, but the effects of his treatment also included overall slow movement and speech, as well as a passive, blunted effect, slow mentation and no spontaneous speech.

15. Mr Blackman’s trial was listed for a six week hearing commencing in May 2016. There was a legal question initially to be decided as to the admissibility of his admissions.

16. In April 2016, Mr Sheehan came to consider that Mr Blackman was suffering some form of alcohol induced neurocognitive disorder, which was contributing to his symptoms and that there was also the possibility that he was suffering some alcohol-related dementia, major depressive disorder, or adjustment disorder. Psychometric testing did not give a result which met the threshold for cognitive impairment, but it was consistent with a cognitive decline, most likely attributable to Mr Blackman’s alcohol abuse. Mr Sheehan considered that there was ample evidence which raised doubts as to the reliability of the admissions which Mr Blackman had made in 2014 in hospital, at a time when his self reporting was unreliable.

17. Mr Sheehan considered the Presser and Kesavarajah criteria and concluded that Mr Blackman had a basic understanding of the charges and behaviour underpinning it; that he was able to distinguish truth from falsehood in general terms; that he was also clear in his declaration of innocence; that he could articulate basic points relevant to his defence, such as his physical incapacity at the time of hospitalisation to have caused Ms Weate’s death; he could understand some aspects of the court process and the roles of those involved; and that with coaching he might be able to sufficiently form a view to provide some coherent instructions at trial.

18. Mr Sheehan doubted, however, Mr Blackman’s ability to understand and contribute meaningfully to his defence at a trial, because that would impose a high cognitive demand, which he may be unable to meet. More extensive investigation into his neuropsychological functioning was recommended.

19. In his May 2016 examination of Mr Blackman, Professor Greenberg considered that he was coherent and without thought disorder, but having word fluency difficulties, was not spontaneous in his accounts and needed prompting to answer questions. Professor Greenberg administered cognitive testing, in which Mr Blackman’s score on verbal fluency was found to be low. The Professor’s provisional diagnosis was that Mr Blackman was suffering alcohol use disorder, with mild cognitive impairment. He considered Mr Blackman’s history of alcohol abuse and being a boxer in his younger years, to account for possible mild brain damage. Alternatively, given his deteriorating functioning, with a documented history of psychotic illness. Professor Greenberg considered that he might have an undiagnosed underlying illness such as schizophrenia and that his chronic history of drug and alcohol abuse could also account for this decline.

20. Professor Greenberg’s consideration of the Presser and Kesavarajah criteria led him to the view that in simple terms, Mr Blackman had an understanding of relevant matters and the capacity to decide on his defence and to instruct counsel. He would have minor problems in giving evidence, because of his difficulties in finding words and marked lack of spontaneity in speech, and he would have difficulty in fully appreciating the substantial effect of giving evidence and understanding the course of the proceedings, given his slow processing speed of thought. Professor Greenberg also considered that Mr Blackman would, as a result, be at considerable disadvantage at trial, with the result that while he was fit to plead, he was unfit to stand trial.

21. In her August 2016 report Dr Pulman described Mr Blackman’s account of his alcohol use as inconsistent with other available information. On first interview in May 2016 he said that he was not a big drinker, consumed alcohol on average only once a week and would get drunk maybe every three months. When pressed he admitted consuming 6 beers a day and that he used to be a big drinker. He denied being an alcoholic, however. Dr Pulman considered these accounts to be unreliable. On second interview he admitted being an alcoholic, consuming a fair bit of alcohol prior to Ms Weate’s death, smoking six joints of marihuana daily for the past nine years and methamphetamine use in the week before his arrest.

22. Dr Pulman referred to witness statements which referred to Mr Blackman having been on a pension since 1990, because of his alcoholism; that before Ms Weate’s death he was drinking heavily and losing weight; intoxicated to the point of staggering and being unable to remember anything; naked and covered in excrement; and his state on admission to hospital, when he was described to have been looking like “a prisoner of war”. Dr Pulman also referred to the results of CT and MRI scans of Mr Blackman’s brain in August 2015 and June 2016.

23. Dr Pulman, too, administered neuropsychological testing, concluding that at the time of her examinations, that Mr Blackman presented with low average intellectual functioning, but with marked difficulties with initiation, slow processing speeds and executive impairment in conceptual reasoning, mental flexibility and preservation, as well as displaying moderate symptoms of depression. These results were consistent with changes in his brain, explained by vascular changes, chronic alcohol and marijuana use, psychotic illness and/or a neurodegenerative process. Further review and repeat of MRI imaging in 8 to 12 months was recommended.

24. Dr Pulman’s consideration of the Presser and Kesavarajah criteria led her also to the conclusion that Mr Blackman was fit to plead, but unfit to be tried, given the consequences of his neurological problems on his ability to understand and participate in the court’s processes.

25. In his 19 September report, Professor Greenberg referred to a neuropsychological report of Dr White of 4 August, which found that Mr Blackman had an average intellectual capacity falling within the low average range, with identified difficulties and an overall cognitive profile consistent with imaging which showed brain changes. She, too, recommended further review. Professor Greenberg’s diagnosis was that Mr Blackman suffered alcohol use disorder, with neurocognitive impairment secondary to micro-vascular lesions, alcoholism and pugilistic insults, with the possibility of underlying degenerative disorder not being excluded. He considered that there was also a possibility of underlying depression.

26. Again, Professor Greenberg concluded that Mr Blackman was fit to plead, but unfit to stand trial, given that despite treatment and appropriate nutrition while in custody for some two and a half years, his mental state remained impaired and that he had suffered what the Professor considered to be permanent changes in his brain.

27. In his 22 September report Dr Nielssen diagnosed Mr Blackman to be suffering alcohol use disorder and alcohol related brain damage, his current cognitive function being typical of front subcortical dementia, with marked slowness of movement, reduced intellectual function, and poverty of speech, which could be partly attributable to his ongoing anti-psychotic medication. Dr Nielssen considered that his long term abuse of alcohol was an obvious factor in Mr Blackman’s mental condition and that his drug use could have triggered a form of psychotic illness, with the result that his state may have affected the reliability of his memory and of any confessional statements he made.

28. Dr Nielssen, too, concluded that Mr Blackman was not fit to stand trial.

Mr Blackman is unfit to be tried

29. I am satisfied, in the face of all of this evidence, that the parties’ common position must be accepted.

30. I find on the evidence I have discussed, that Mr Blackman has suffered damage to his brain and that he is also suffering mental disorders of the kind diagnosed by the experts who have examined him, as the result at least, in part, of his long term alcohol abuse.

31. I am also satisfied, having considered the principles discussed in Presser and Kesavarajah, that the common views of the experts as to Mr Blackman’s diminished capacity must be accepted, as the parties urged. In the result, it must be concluded that Mr Blackman is unfit to be tried.

32. While Mr Blackman had sufficient capacity to have entered his plea of not guilty, as he did, there is no rational basis on which it can now be concluded, given the evidence of his current diminished capacity and what on the evidence appears to be his limited prospects of improvement, that at trial he will be able to follow the course of the proceedings; to sufficiently understand what is going on in court, particularly as to the substantial effect of any evidence that may be given against him, so as to enable him to make his defence; and to answer to the charges, including by giving instructions to his counsel.

33. In the result, it must be concluded that orders under s 14 of the Act must be made, as the parties also agreed.

Orders

34. For these reasons I order under s 14 of the Mental Health (Forensic Provisions) Act that:

1. The accused Gary Clifford Blackman is currently unfit to be tried for the offences he has been charged with, of murdering Nicole Weate at Tomewin between 2 and 6 April 2014, the offence under s 18(1)(b) of the Crimes Act 1900 (NSW) of unlawfully killing Ms Weate and under s 33(1)(b) of the Crimes Act of causing her grievous bodily harm with intent.

2.    The accused be referred to the Mental Health Review Tribunal.

3.   The accused be remanded in custody, pending further orders of the Court.

4.    Direct the Registrar to provide the following documents to the Tribunal:

(i)   A copy of this judgment.

(ii)    A copy of these orders.

(iii)    Copies of all exhibits tendered in this inquiry.

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Decision last updated: 09 November 2016