R v Ohlsen

[2018] NSWSC 1193

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ohlsen [2018] NSWSC 1193
Hearing dates:	2 August 2018
Date of orders:	02 August 2018
Decision date:	02 August 2018
Before:	Wilson J
Decision:	(1)   I find on the balance of probabilities that the accused is not fit to be tried for the offence of murder charged against her, and is unlikely to become fit in a twelve month period. (2) Pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) the accused is referred to the Mental Health Review Tribunal. (3)   Bail is refused until such time as the determination of the Mental Health Review Tribunal has been given effect to.
Catchwords:	CRIME – MURDER- question of accused’s fitness to be tried raised in good faith – inquiry held – evidence of long enduring and treatment resistant schizophrenia – unfitness to be assessed contemporaneously – accused currently displaying signs of severe mental illness – Presser criteria applied – accused found unfit and unlikely to become fit in a 12 month period – referral to the Mental Health Review Tribunal
Legislation Cited:	Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1999 (NSW)
Cases Cited:	Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Regina (Crown) Lauren Jessie Ohlsen (Accused)
Representation:	Counsel: Mr M Hobart SC (Crown) Mr M Ramage QC (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Timothy Hemsley & Associates (Accused)
File Number(s):	2016/263573
Publication restriction:	Nil

Judgment

1. WILSON J: Lauren Jesse Ohlsen stands indicted with the murder of Scott Anthony Dickinson, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The murder is alleged to have occurred on 1 September 2016 at Albury in this State.

2. The accused first appeared before this Court on 4 August 2017. The matter did not proceed to arraignment, but was adjourned then and on a number of subsequent occasions, before, on 4 May 2018, the question of her fitness to be tried was raised.

3. That question having been raised in good faith, an inquiry in order to determine whether the accused is unfit to be tried for the offence was fixed for 2 and 3 August 2018, (the earliest occasion that was practicable), as contemplated by s 10(1)(b) of the Mental Health (Forensic Provisions) Act 1999 (NSW).

4. The Court heard evidence and received submissions during the course of this morning as to the question of fitness.

5. Before turning to the evidence, it is useful to set out the relevant law.

The Law

6. The conduct of a fitness inquiry is governed by Part 2 of the Mental Health (Forensic Provisions) Act 1999 (NSW) (“the Act”).

7. Section 6 of the Act requires that the question of a person’s unfitness to be tried for an offence is to be determined on the balance of probabilities. Pursuant to s 11(1), the question of a person’s unfitness to be tried for an offence is to be determined by a Judge alone. In determining that question, the judge must have regard to the principles of law and state the findings of fact relied upon.

8. A fitness inquiry is not to be conducted in an adversary manner (s 12(2)), and neither the Crown nor the accused bears any onus of proof of the question of the accused’s unfitness to be tried (s 12(3)). Pursuant to s 12(1) of the Act, the accused has been represented at the inquiry by senior counsel and her solicitor.

9. The question of fitness to be tried is determined by reference to what are commonly known as the “Presser criteria”, nomenclature derived from R v Presser [1958] VR 45 per Smith J. That decision sets out (at 48) the minimum standard of comprehension required of an accused before that person can be tried without unfairness or injustice. The formulation of those requirements was approved by the High Court in Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 at 8 and in Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 at 244.

10. Using the gender specific language of sixty years ago, Smith J said in R v Presser:

“[The 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.”

11. Section 13 of the Act provides for the procedure to be followed where, at the conclusion of an inquiry, a person is found fit to be tried. Section 14 sets out the procedure where the person is found unfit to be tried.

The Evidence

12. The evidence before the Court in the Crown case consists of:

1. The Crown Case Statement;

2. The criminal record of the accused;

3. A transcript of an electronically recorded interview between the accused and police on 1 September 2016;

4. A report of Dr Jonathan Adams dated 25 June 2018;

5. A report of Dr Richard Furst dated 27 February 2018;

6. Transcript of calls to Triple Zero on 1 September 2016;

7. A statement of Terry Martin dated 9 September 2016 (including Ambulance records);

8. A statement of Terry Martin dated 13 September 2016;

9. A report of Dr Brian Beer dated 9 November 2016.

13. That material is Exhibit A.1 to A.9 on the inquiry. Apart from the reports of Drs Adams and Furst, Exhibits A.4 and A.5 respectively, the material relates to the events of September 2016 and earlier.

14. Filed for the accused in accordance with the orders of Justice Johnson is:

1. A statement of the “committal facts” which provides a summary of what is alleged against the accused with respect to Mr Dickinson’s murder;

2. A statement of reasons for an adjournment of proceedings from the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) dated 24 June 2016 relevant to guardianship proceedings before it;

3. A copy of a Guardianship Order made by the Tribunal on 18 November 2016 with respect to the accused;

4. A report from Dr Richard Furst dated 27 February 2018 which annexes his abridged curriculum vitae (being the same report exhibited at Ex. A.5); and

5. A report from Dr Jonathon Adams dated 25 June 2018 (being the same report exhibited at Ex. A.4).

15. Since the question for this Court is the accused’s capacity to participate in her trial as at the present time, it is not necessary to consider the events connected with the alleged murder of Mr Dickinson in any detail, and I do not propose to canvas the evidence as to those events. Suffice to say that, in the early morning of 1 September 2016, it is alleged that the accused stabbed Mr Dickinson to death using a knife that she had obtained from the kitchen of his home. The accused and Mr Dickinson had been in a sporadic domestic relationship, and the accused was at Mr Dickinson’s home at the time. The couple had used methylamphetamine in the hours before the stabbing, and the accused had become upset with Mr Dickinson for some reason. It was in that context that she is alleged to have stabbed him.

16. The accused initially told the police that unknown men had entered the house and stabbed Mr Dickinson, but she soon after participated in an electronically recorded interview (Ex. A.3) in which she confessed to having lied, and stated that no-one other than she and Mr Dickinson had been at the premises. She was charged on 1 September 2016 with his murder. Much of the information of the events of 1 September 2016 goes to suggest that the accused was floridly mentally ill at that time.

17. It is clear from the material from NCAT that the accused has had longstanding issues with mental illness. The matter before the Tribunal in June 2016 was a requested review of an existing guardianship order. The review was sought by the Public Guardian who had earlier, on 21 January 2015, been appointed as guardian for the accused, with power to make decisions as to her access to others, accommodation, health care and the provision of medical and dental consent, and legal services. A guardianship order had been in force relevant to the accused since July 2011.

18. The Public Guardian had sought additional powers to permit the accused to be required to accept direction as to accommodation. That request came about against a background where the accused had wrongly believed that she had been evicted from public housing of which she was the tenant, and electricity turned off to the premises. On the basis of that belief she had moved to Mr Dickinson’s house, a situation that the guardian was concerned could be dangerous for the accused. The guardian had met with the accused on 17 June 2016, but found her in a disordered state and “hearing voices”. The guardian was concerned that the accused was engaged in “risky behaviour”, and a “contained” accommodation model was necessary. Further, the accused was reported to be using methylamphetamine, or “ice”, and not compliant with voluntary rehabilitative programmes.

19. Mr Dickinson was a participant at the hearing, telling the Tribunal that, although he did not think the accused required hospitalisation, she did need assistance from mental health workers.

20. Noting the accused’s objection to any change to the existing guardianship order, the Tribunal adjourned the review for a period of 3 months to allow the Public Guardian to devise a suitable treatment and rehabilitation programme for the accused, and offer the programme to her.

21. During the period of the adjournment, the accused is alleged to have murdered Mr Dickinson.

22. On 18 November 2016, the Tribunal made a limited guardianship order, giving the Public Guardian custody of the accused to the extent necessary to carry out functions relevant to accommodation, access to legal services and the provision of legal instructions, medical and dental consent, and the provisions of services generally. By that stage, the accused was in custody having been charged with Mr Dickinson’s murder.

23. On 11 January 2018, Dr Richard Furst, forensic psychiatrist, saw the accused at Silverwater Women’s Correctional Centre at the request of her lawyers, assessing her for about an hour. Dr Furst was briefed with material as to the allegation against the accused, including what appears to be relatively comprehensive documentation concerned with the accused’s medical history. He reviewed Medical Records from Nolan House, Albury Community Mental Health Drug and Alcohol Service, and the Emergency Department at Albury Base Hospital, together with discharge summaries from Benambra Rehabilitation Service. The Justice Health Mental Assessment was also available to Dr Furst.

24. Dr Furst referred to the accused’s lengthy history of psychiatric treatment, with multiple psychiatric admissions in the past, including around ten admissions to Nolan House at Albury, two admissions to psychiatric units in Wangaratta, an admission to Gissing House in Wagga Wagga, and a one year admission to Bloomfield Hospital and associated rehabilitation cottages in Orange.

25. At the time of the alleged commission of this offence the accused was under the care of the Albury Mental Health Team and subject to a Community Treatment Order (“CTO”). Because of her poor insight into her condition, she was medicated by way of injections of a depot antipsychotic medication.

26. Dr Furst noted that the accused was diagnosed with bi-polar disorder in 2003 and schizophrenia in 2006. Over her various admissions to psychiatric facilities, she has been observed to suffer principally from schizophrenia and poly-substance abuse. She has had paranoid delusions, mood disturbances, hallucinations, somatic delusions and sexual preoccupation.

27. In 2011, the accused was reported to have ‘trashed’ her home, disrobed in the bank and been verbally abusive, suggestive of mania. There was also an incident where she stabbed a man, only a day after being discharged from hospital, apparently believing that the man was going to rape her.

28. In 2012, she was hospitalised after evidence of auditory hallucinations was noted. Reference was made to her schizophrenic condition being treatment resistant, and the accused observed to have a potential for “regression”.

29. On 10 June 2016, the accused presented at the Albury Base Hospital with pressured speech, bizarre behaviour and paranoid thoughts. Persecutory and grandiose delusions were noted. Despite that, the accused was discharged - a discharge that Dr Furst considers to have been one of “convenience”, rather than medically indicated.

30. On entry into the custody of the Department of Corrective Services on 5 September 2016, the accused was assessed. The symptoms noted by assessing medical staff included ‘hearing derogatory voices’. She gave a history surrounding the circumstances of the commission of the alleged offence which was bizarre. The accused was responding to apparent internal stimuli, indicative of hallucinations.

31. On examination by Dr Furst in January this year, the accused gave a disjointed account of events, with some distinctly bizarre content. She said, amongst other things, that:

1. she had ten other children as an egg donor;

2. she believed she had a twin brother and a twin sister who were “swept under the rug and put up for adoption”;

3. there were rumours that the deceased had injected turpentine into her daughter;

4. she heard people saying he was paying people money to put “fits” (or syringes) into her daughter to make it appear as if she were abusing the child; and that

5. Telstra was spying on her.

32. The accused’s claims became increasingly bizarre during the hour that Dr Furst spent with her, with references to voices speaking to her from the television, a “Federal Bureau of Emergency” that told her to eat rabbit food or suffer leukaemia, and the like. The accused said that she had heard voices since she was 17 years old.

33. Dr Furst opined that the accused was bizarre in her manner, thought form and thought content, with ongoing evidence of paranoid and somatic delusions. She complained of having heard voices on the morning of the assessment that told her to hurt herself. The doctor thought that the accused’s level of insight into her apparent schizophrenic illness was limited and her judgement was impaired by ongoing psychosis.

34. As to the question of the accused’s fitness to be tried, the accused displayed limited understanding of the trial process. She understood that she had been charged with Mr Dickinson’s murder, and knew that she could enter a plea of guilty, not guilty, or not guilty by reason of mental illness. She had some understanding of the role of evidence.

35. She did not, however, appear to understand the role of her own lawyer, or of counsel for the Crown. She thought the prosecutor’s role was to decide the outcome of the case. In his report, Dr Furst continued,

Her main difficulties in terms of her fitness to plead and endurance would likely relate to her difficulty in following proceedings and in her impaired capacity to provide logical instructions to her legal counsel. She remained delusional, paranoid and had odd persecutory and somatic preoccupations at the time of assessment on 11/01/18. She also had persistent auditory hallucinations. Her judgement and insight were impaired. Those factors would likely have an adverse effect on her capacity to participate in court proceedings, and make out her defence, if any.

Ms Ohlsen’s psychotic symptoms were persistent at the time of recent assessment and are chronic in nature. She would struggle to follow proceedings. She is likely to give illogical and/or incoherent instructions to her legal counsel as a product of her thought disorder, delusional thinking and lack of insight into her illness. Auditory hallucinations and the stress of being in court would also impair her capacity to participate in a criminal trial in a meaningful way. She lacks endurance.

36. The doctor concluded,

Having regards to the standards of Presser [1958] V R 45 and Kesavarajah (1994) 74 A Crim R 100, I am of the opinion that Ms Ohlsen is not fit to be tried. Having regard to the chronicity of her schizophrenic illness, I am of the opinion she is unlikely to become fit to be tried over the next 12-months.

37. Dr Jonathon Adams saw the accused at the request of the Crown on 14 March 2018. He had access to a number of evidentiary documents relevant to the alleged offence, the accused’s medical records from Albury (all of which he reviewed), and a copy of Dr Furst’s report.

38. Dr Adams immediately observed symptoms of mental illness on speaking with the accused. He said,

It was evident from the outset of the assessment that Ms Ohlsen was experiencing severe symptoms of schizophrenia. Her account was disjointed and difficult to follow, and she manifested a variety of delusional beliefs and hallucinations.

39. She gave the doctor a history of being “schizoaffective” and said that she had been admitted to psychiatric hospitals frequently. She said that she had heard voices and, for the last four or five years, the voices had turned on her. Dr Adams noted that the accused’s narrative was very difficult to follow.

40. She gave him an account of a number of features consistent with schizophrenia, including:

1. hearing "voices" that harassed her continuously and were “dictators". The voices were derogatory in nature and persistent, originating from various places, including the space around her, and from within her own mind. The voices commanded her to hurt herself and others;

2. a belief that the “FBE” or Federal Bureau of Emergency had inserted a two-way radio in her head to control the voices. This radio interfered with her thoughts;

3. she had “enemies” who were trying to “get” her;

4. the enemies had sexually assaulted children in the community;

5. she had "about 18 children" but had only given birth to one of them; and that

6. there were “women committing mutiny against me have been getting men off their heads on ox blood".

41. The accused appeared to have some understanding of the confusion of her thoughts, and referred to having been shot in the head with a cross-bow.

42. On assessment of the accused’s mental state, Dr Adams observed,

Her mood was extremely labile, progressing quickly from fatuous and laughing, through to distressed and tearful. In between times, her emotional expressions were unreactive. She appeared perplexed and distracted, consistent with ongoing hallucinations. She denied experiencing any current ideas of self-harm or suicide, or violence towards others. She endured severe thought disorder, hence her response style was disjointed and difficult to follow. She manifested an array of delusional beliefs and experienced auditory hallucinations, the nature of which is illustrated above. She was orientated in time, place and person, and there was no evidence of delirium. Her concentration was impaired. Although she acknowledged her diagnosis of mental illness and the need for psychiatric treatment, Ms Ohlsen did not manifest a complete understanding of her psychiatric history, the severity of her condition, or the need for long-term treatment.

43. Dr Adams assessed the accused with respect to the Presser criteria. He found that she had some understanding of the charge that she faced, and of the availability of a plea of not guilty by reason of mental illness. However, having told the doctor that she wanted to enter a plea of not guilty by reason of mental illness, moments later she said she wanted to plead guilty, before asking Dr Adams whether he thought she should.

44. She had a general awareness that a criminal trial was held to determine whether “you’re guilty or not”; and that a jury of twelve would make that decision, whilst the judge would “hand down the verdict” and deal with sentence. She could not give any account of the role of the prosecutor, but did understand that her lawyer would help her and “argue [her] position”. Dr Adams thought her comprehension of the right of challenge was questionable.

45. The accused told the doctor that she didn’t think she would get a fair trial, referring again to the women persecuting others with ox blood.

46. Having reviewed the evidentiary material, and the medical records relating to the accused (which it is not necessary for present purposes to consider here), together with the content of the report of Dr Furst, Dr Adams concluded that the accused was suffering from severe symptoms of schizophrenia. He observed that,

Her mood was labile. She endured severe thought disorder, which made it

difficult to follow her narrative. She manifested an array of delusional beliefs, including bizarre delusions, persecutory delusions, and likely thought interference delusions. She referred to experiencing persistent and distressing auditory hallucinations. Although she accepted that she suffered with a mental illness, she did not have a complete understanding of the severity of her condition.

47. Dr Adams noted that the accused’s presentation was entirely consistent with the history set out in the medical information he had access to, and with a diagnosis of schizophrenia. Like doctors in the past, Dr Adams thought the condition was treatment resistant.

48. As to her fitness to be tried, Dr Adams said,

Although Ms Ohlsen manifested a reasonable understanding of some of the knowledge based Presser minimum standards, namely the charges against her, the pleas available to her, and the purpose of a criminal trial and those involved, I have concerns regarding her capacity to satisfy additional areas of the Presser minimum standards and the matters set out in R v Kesavarajah given the severity of her symptoms of schizophrenia.

The severity of Ms Ohlsen's thought disorder, intrusive delusional beliefs, and distressing auditory hallucinations would impact upon her capacity to provide her version of events to her legal representative. In my view, her version of events would likely be disjointed and difficult to follow (and at times impossible) as a result of her thought disorder, and would contain an array of delusional beliefs. Her symptoms of schizophrenia would impair her capacity to follow legal proceedings in a general sense, and understand to a reasonable degree what was happening and how it might influence her. In my view her symptoms of schizophrenia would also significantly impact upon her capacity to understand the substantial effect of evidence given against her.

It is my opinion that Ms Ohlsen's enduring symptoms of schizophrenia would significantly impair her capacity to follow a potentially lengthy criminal trial, which goes to matters set out in R v Kesavarajah.

49. Having regard to the long standing nature of the condition, its likely resistance to treatment, and the fact that it seems to have endured despite treatment since arrest, Dr Adams thought it was unlikely that the accused would become fit to be tried within a 12 month period.

Determination

50. The question for the Court is whether, applying the law to the evidence, it can be concluded on the balance of probabilities that the accused is presently fit to be tried. Her mental state as at 1 September 2016 is of limited relevance, beyond supporting a conclusion that her illness is of long duration. It is not necessary to draw any factual conclusion as to what occurred on that day.

51. The entirety of the evidence is to the effect that the accused is not fit, and neither party submits otherwise. It is clear that the accused suffers from a severe mental illness, and that her illness significantly impairs her capacity to participate in her criminal trial, and adequately comprehend it. Although the most recent psychiatric evidence is from a consultation between Dr Adams and the accused in March, there is no reason to think that her situation has materially improved in the intervening months. The accused’s condition is one which has been observed since at least 2006. It is enduring, and resistant to treatment. Despite having been in custody and subject to treatment through Justice Health for almost two years and, presumably, abstinent from illicit drugs, the accused continues to manifest severe symptoms of schizophrenia. There is no reason to conclude that she could be fit to be tried at the present time.

52. In terms of the Presser criteria, whilst the accused appears to have at least some understanding of the pleas available to her, the role of her lawyer and perhaps of any jury at her trial and, in a general way, that a trial is an inquiry as to whether she did what she is charged with, in other respects she would be unable to meaningfully participate in the proceedings. I am satisfied on the balance of probabilities that Ms Ohlsen could not:

1. exercise her right of challenge;

2. follow the course of the trial proceedings so as to understand what is going on in court in a general sense;

3. understand the substantial effect of any evidence that may be given against her; or

4. make her defence or answer to the charge, in that she could not give a coherent or rational account of events to either her legal representatives, or, should she wish to do so, to the court.

53. Having regard to the evidence of Dr Furst and Dr Adams, which I accept, I find that the accused is not fit to be tried, and is unlikely to become fit in a twelve month period.

54. Pursuant to s 14(a) of the Act the accused must be referred to the Mental Health Review Tribunal and, pursuant to s 14(b)(iii) I propose to remand the accused in custody until the determination of the Tribunal has been given effect to.

orders

1. I find on the balance of probabilities that the accused is not fit to be tried for the offence of murder charged against her, and is unlikely to become fit in a twelve month period.

2. Pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) the accused is referred to the Mental Health Review Tribunal.

3. Bail is refused until such time as the determination of the Mental Health Review Tribunal has been given effect to.

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Decision last updated: 02 August 2018