R v Gillard - [2006] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GILLARD
Reasons for Ruling of The Honourable Justice Nyland
23 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
Accused charged with two counts of murder and one count of attempted murder - whether accused fit to stand trial - accused suffering from mental illness, namely paranoid schizophrenia - neuropsychological assessment and psychiatric examination - significant cognitive impairment as well as mental illness - whether accused mentally unfit pursuant to s 269H CLCA - whether accused able to understand or respond rationally to the charge - whether able to understand the nature of proceedings or to follow evidence in the course of proceedings. Held: accused mentally unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA) ss 269H, 269K, 269L , referred to.
R v Sexton (2000) 77 SASR 405; R v Presser [1958] VR 45; Kesavarajah v R (1994) 181 CLR 230, applied.
Gillard v The Queen (2003) 219 CLR 1, discussed.

R v GILLARD
[2006] SASC 46
RULING ON FITNESS TO STAND TRIAL

Kevin Wayne Gillard (Gillard) was jointly charged with Gerald David Preston on an information dated 15 September 1997 with having committed at Lonsdale on 15 August 1996: (1) the murder of Leslie Shane Knowles; (2) the murder of Timothy Lawrence Richards; and (3) the attempted murder of Robert Kym Traegar.
Background:
The trial with respect to those matters commenced before a judge and jury on 15 June 1998. It concluded on 27 October 1998, when both accused were found guilty of all three charges. Gillard was sentenced to be imprisoned for life and a non-parole period was fixed at 25 years. An appeal against those convictions was dismissed by the Court of Criminal Appeal on 21 December 2000.
On 12 November 2003, however, the High Court allowed an appeal by Gillard against the order of dismissal of the Court of Criminal Appeal. The High Court set aside the order of the Court of Criminal Appeal and ordered that Gillard’s convictions be quashed and that there be a new trial[1].
[1] Gillard v The Queen (2003) 219 CLR 1
On 15 September 2004, Gillard was arraigned in the Supreme Court and pleaded not guilty to all of the charges against him. A voir dire hearing was then listed for 6 December 2004. Before that date, however, there were a number of directions hearings in the course of which counsel endeavoured inter alia to crystallize the issues for determination on the voir dire. Throughout that period defence counsel also endeavoured to clarify issues relating to Gillard’s mental health.
On 3 December 2004, following an examination of Gillard by Dr Raeside, a psychiatrist, an application was made by Gillard’s counsel for the adjournment of the voir dire in order to obtain a full psychiatric assessment of Gillard in addition to having neuropsychological assessments carried out.
Eventually, on 18 January 2005, I made an order that the voir dire

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gillard

Details

AGLC: R v Gillard [2006] SASC 46
Case: [2006] SASC 46
Decision Date: 23 February 2006

CaseChat Overview and Summary

In the case of R v Gillard, Gillard was charged with two counts of murder and one count of attempted murder. The central issue was whether Gillard was fit to stand trial, given his mental illness, specifically paranoid schizophrenia, and significant cognitive impairment. Gillard's counsel argued that he was unfit to stand trial due to his mental health issues, while the prosecution contended that he could follow the proceedings if a regime of breaks was implemented. The court had to determine whether Gillard met the criteria for mental fitness under section 269H of the Criminal Law Consolidation Act (CLCA).

The court examined the evidence provided by Dr Nambiar, a psychiatrist, and Dr Raeside, a second psychiatrist, who both assessed Gillard's mental state. The court weighed the opinions of both psychiatrists, considering Gillard's ability to understand the nature of the charges, follow the proceedings, and make a defence. The court found that Gillard's mental state, as evidenced by his delusional beliefs and psychotic phenomena, rendered him unfit to stand trial. The court concluded that Gillard could not reasonably understand or respond to the charge, nor could he follow the evidence or understand the proceedings due to his significant cognitive impairment and mental illness.

The court held that Gillard was mentally unfit to stand trial. The reasoning was based on the substantial evidence from both psychiatrists that Gillard's mental state did not meet the required standards of mental fitness as outlined in the legal criteria. The court found that Gillard's mental illness significantly impaired his ability to participate in his defence effectively. As a result, the court ordered that Gillard's trial be adjourned until his mental health could be adequately managed.

The final orders included the adjournment of the trial to allow for further psychiatric assessment and treatment, ensuring Gillard's mental fitness before proceeding with the trial.

Orders

Orders of the court

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Background

Background to the litigation

Kevin Wayne Gillard (Gillard) was jointly charged with Gerald David Preston on an information dated 15 September 1997 with having committed at Lonsdale on 15 August 1996: (1) the murder of Leslie Shane Knowles; (2) the murder of Timothy Lawrence Richards; and (3) the attempted murder of Robert Kym Traegar.Background: The trial with respect to those matters commenced before a judge and jury on 15 June 1998. It concluded on 27 October 1998, when both accused were found guilty of all three charges. Gillard was sentenced to be imprisoned for life and a non-parole period was fixed at 25 years. An appeal against those convictions was dismissed by the Court of Criminal Appeal on 21 December 2000. On 12 November 2003, however, the High Court allowed an appeal by Gillard against the order of dismissal of the Court of Criminal Appeal. The High Court set aside the order of the Court of Criminal Appeal and ordered that Gillard’s convictions be quashed and that there be a new trial[1]. [1] Gillard v The Queen (2003) 219 CLR 1 On 15 September 2004, Gillard was arraigned in the Supreme Court and pleaded not guilty to all of the charges against him. A voir dire hearing was then listed for 6 December 2004. Before that date, however, there were a number of directions hearings in the course of which counsel endeavoured inter alia to crystallize the issues for determination on the voir dire. Throughout that period defence counsel also endeavoured to clarify issues relating to Gillard’s mental health. On 3 December 2004, following an examination of Gillard by Dr Raeside, a psychiatrist, an application was made by Gillard’s counsel for the adjournment of the voir dire in order to obtain a full psychiatric assessment of Gillard in addition to having neuropsychological assessments carried out. Eventually, on 18 January 2005, I made an order that the voir dire commence on 1 February 2005. On 1 February 2005, Gillard was arraigned at the commencement of the voir dire and pleaded not guilty to the charges against him. The voir dire then proceeded and evidence was called by the prosecution on 1, 2 and 3 February 2005. When the matter was called on for hearing on 4 February 2005, however, counsel for Gillard asked that the matter be stood over until the afternoon due to problems with Gillard’s health. Arrangements were then made for Dr Raeside to attend court to assess him. When the matter resumed in the afternoon, Gillard’s counsel advised that Dr Raeside had briefly attended upon Gillard during the period of the adjournment and had expressed the opinion that Gillard was at that time psychiatrically unwell and not fit to instruct counsel. As a result of that advice, the matter was stood over to 7 February 2005 to enable Dr Raeside to prepare a written report as to those matters. On 7 February 2005, counsel tendered a report of Dr Raeside dated 5 February 2005 in which Dr Raeside expressed the opinion that Gillard was currently unfit to plead. He said that Gillard had presented at interview as co-operative, quietly spoken and settled in demeanour. He did not display any overt psychotic disorder and appeared superficially able to discuss his current legal situation. More specific questioning, however, revealed underlying delusional and psychotic phenomena. This included a belief that he could not get a fair trial because of his conviction that one of the police witnesses, an officer named Sherry, who gave evidence on the voir dire as to the circumstances in which Gillard was arrested and interviewed by the police in Queensland, was an impostor whose real name was Geoff Black and who was involved with underworld organised crime. Gillard mentioned having lots of money that he could use to pay someone to sit in court in his place who could then feed back to him what was being said.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This test was approved by the majority of the High Court in Kesavarajah v R[13]:In R. v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice … . Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard …, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.[13] (1994) 181 CLR 230 at 245Conclusion: There is no dispute that Gillard has a significant cognitive impairment as well as a mental illness, namely paranoid schizophrenia. Notwithstanding those matters, he appears to have an understanding of the charges against him and other matters relating to the trial, such as the role of the judge and the prosecutor. He has demonstrated an ability to tell Dr Nambiar about his legal proceedings and Dr Nambiar thought his memory with respect to those matters was relatively good. He obviously has a high interest in these proceedings and the evidence suggests that his memory of matters in which he has an interest is better than his memory for other things. The prosecution submitted that this trial would be shorter than the last which had involved two accused and had some unique features such as counsel’s instructions being terminated on more than one occasion. It is further suggested that the issues in this trial are not particularly complex and if, for example, there was a dispute by Gillard about what he said in his interviews with the police he would be able to refresh his memory from the recordings of those interviews. The prosecution submitted that if a regime of breaks was put into place as suggested by Dr Nambiar, Gillard’s health could be monitored and he would be able to follow the course of the proceedings and make his defence to the charges against him. The presumption of mental fitness had therefore not been displaced. In my opinion, however, limited weight can be given to the ability of Gillard to relate to Dr Nambiar in the interview situation as that would clearly be less stressful than having to appear in court in a trial before a jury, and even Dr Nambiar conceded that the court proceedings would be stressful. Although Dr Nambiar had contact with Gillard over a lengthy period of time, it appears that he only did so in his capacity as visiting psychiatrist at Yatala in what undoubtedly was a busy clinic. I do not think, therefore, that he is necessarily in any better situation than Dr Raeside to make an assessment as to Gillard’s fitness. Furthermore, Dr Raeside had the advantage of seeing Gillard both in December 2004 and again in February 2005 at a time when court proceedings were underway.

Ratio Decidendi

Legal Principle Established

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