R v Ian Charles Wells

[2017] NSWDC 105

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ian Charles Wells [2017] NSWDC 105
Hearing dates:	16 May 2017
Decision date:	16 May 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Accused found unfit to stand trial
Catchwords:	Fitness to plead; fitness to stand trial
Legislation Cited:	Bail Act 2013 Crimes Act 1900 Court Suppression and Non-Publication Orders Act 2010 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Kesavarajah v R (1984) 181 CLR 230 R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Ian Charles Wells (Accused)
Representation:	Counsel: P Kerr (Crown) M King (Accused)
File Number(s):	16/17329
Publication restriction:	S 7 Non-Publication Order for name of Complainants

Judgment

Introduction

1. The accused is to stand trial on an Indictment containing eight counts. The charges comprise historical sex offences alleged to have taken place with two child victims in the 1980’s.

2. I make an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, suppressing disclosure of information tending to reveal the identities of the two victims.

3. Counts 1 to 5 on the Indictment concern the victim MD. There are three charges brought pursuant to s 61D(1) of the Crimes Act 1900 (Counts 1, 2 and 4); one count pursuant to s 61E(1) of the Crimes Act 1900 (Count 2); and one count of carnal knowledge pursuant to s 67 of the Crimes Act 1900 (Count 5).

4. Counts 6, 7 and 8 concern the victim BP. They comprise one count pursuant to s 61E(1A) of the Crimes Act 1900 (Count 6); and two counts pursuant to s 66A of the Crimes Act 1900 (Counts 7 and 8).

5. The first five counts concerning the victim MD are alleged to have taken place between 1982 and 1983, and the three counts concerning the victim BP are alleged to have taken place between 1987 and 1988.

6. The legal representatives of the accused have raised a question as to the accused’s fitness to be tried of the counts on the Indictment. For the purpose of this application, there is no need for the court to particularise the alleged criminal conduct involved in each of the counts on the Indictment.

The legislative framework

7. Part 2 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) governs the procedure for such an application. The matter having been raised prior to the accused being arraigned, and pursuant to s 8(1) of the Act, the court must determine whether an inquiry should be conducted prior to the trial of the matter. There is no issue here that an inquiry should be conducted as to the fitness of the accused to be tried, and pursuant to s 10(1) of the Act, the court must conduct an inquiry to determine the question of fitness, on the balance of probabilities (s 6).

8. Any determination of fitness must be determined by judge alone, and must include the principles of law applied and the findings of fact made by the judge (s 11).

The background of the accused

9. The accused was born in 1963 and lived in Ganmain, attending primary school there. He completed his secondary education at Wagga Wagga High School in year 9, and thereafter worked as a labourer carting hay or cutting wood. For many years he has been in receipt of a Disability Support Pension. He is a married man and claims to have six children.

10. In 1999, when he was aged 36, the accused was referred to the New South Wales Department of Community Services for psychological assessment. The accused was assessed as having a verbal IQ ranked at the 0.5 percentile, performance IQ at the second percentile, and a full scale IQ at the first percentile. He had significant non-verbal weaknesses. He was also found to have significant verbal reasoning domain deficits, particularly in the areas of word knowledge, conceptual thinking, general knowledge and social understanding, for example, being uncertain why certain laws and regulations were needed. The assessor was of the opinion that the accused had a mild intellectual disability.

The evidence of fitness or otherwise

11. The accused relies on opinions expressed in the following expert medical reports which deal with the question of his fitness for trial:

1. Dr Katie Seidler dated 6 June 2016;

2. Dr Sharon Reutens dated 24 August 2016; and

3. Dr Jeremy F O’Dea dated 14 December 2016.

12. Dr Seidler is a clinical and forensic psychologist who was qualified with the brief of evidence against the accused. Upon testing, Dr Seidler estimated his intelligence to be in the range of moderate intellectual disability. Since he had been charged, the accused had developed symptoms of an adjustment disorder with depressed mood. Dr Seidler was of the opinion that the accused was fit to plead, but not fit to be tried on the charges on the basis that he had very limited comprehension of court processes and would seriously struggle to participate in his defence.

13. Dr Sharon Reutens, consultant psychiatrist, was also qualified with the brief of evidence. She diagnosed an adjustment disorder with mixed anxiety and depressed mood, and a mild intellectual disability. In the opinion of Dr Reutens, the accused was not capable of adequately following a trial or instructing his legal representatives during the trial.

14. Dr Jeremy O’Dea, forensic psychiatrist, examined the accused on behalf of the Crown. He also was qualified with the brief of evidence, together with the reports of Dr Seidler and Dr Reutens. Dr O’Dea was of the opinion that the accused could be considered unfit to be tried. It was likely that he would have significant difficulties in being able to adequately follow the evidence in the trial, and would also have significant difficulties in being able to instruct his legal representatives.

Determination

15. In Kesavarajah v R (1984) 181 CLR 230, the High Court discussed the issue of whether a person is unfit to plead or to stand trial, and applied R v Presser [1958] VR 45. The question is to be determined by reference to expert medical opinion, and the standard to be applied is on the balance of probabilities. Having regard to the unanimous opinion of the two psychiatrists and the forensic psychologist outlined above, it is clear that the accused does not have the intellectual capacity to follow the course of the proceedings at trial, or to understand the effect of any evidence given against him. Nor does he have the wherewithall to instruct his legal representatives to meet such evidence or to make out his defence. Thus, on the balance of probabilities, I find that the accused is fit to plead to the offences with which he is charged, but is not fit to stand trial on the Indictment.

16. Having found the accused not fit to be tried, I therefore intend to refer him to the Mental Health Review Tribunal, pursuant to s 14(a) of the Act.

17. I note the accused has been on conditional bail, and has met his bail. I therefore intend to grant a continuation of the bail in accordance with the Bail Act 2013.

Orders

18. I make the following orders:

1. I find the accused, Ian Charles Wells, presently unfit to be tried.

2. I refer the accused to the Mental Health Review Tribunal.

3. Pending determination of the Tribunal, I grant the accused bail in accordance with the Bail Act 2013, on the same conditions of his previous bail.

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Amendments

16 May 2017 - Hearing date changed from 15 May 2017 to 16 May 2017

Decision last updated: 16 May 2017