R v Whittall

[2017] NSWSC 339

Supreme Court

New South Wales

Medium Neutral Citation:	R v Whittall [2017] NSWSC 339
Hearing dates:	31 March 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Ms Whittall is fit to stand trial. (2)   Adjourn proceedings to Arraignments List on Friday 7/4/2017 in order that a date for trial can be fixed. Accused to attend via AVL (3)   Bail refused. (4)   Direct that Ms Whittall be returned to and accommodated at her current place of hospital treatment.
Catchwords:	CRIMINAL LAW – procedure – fitness to plead or be tried – murder – fit to be tried
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW), s 29
Cases Cited:	Kesavarajah v R [1994] 181 CLR 230 R v Presser [1958] VR 45
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	The Crown Laine Elizabeth Whittall (Applicant)
Representation:	Counsel: K McKay SC (Crown) I Todd (Applicant)   Solicitors: The Commonwealth DPP
File Number(s):	2014/201499
Publication restriction:	Not Applicable

EX TEMPORE Judgment

1. It is alleged that on 7 July 2014, Ms Laine Elizabeth Whittall murdered Kevin James Fawcett (“the deceased”) at Gosford: The Crown case is fully described in a statement of facts dated 17 May 2016. It is unnecessary to record the entirety of those facts in these brief reasons for judgment.

2. It appears that the deceased and Ms Whittall had been in a relationship for about eight months or so prior to July 2014. Late on the evening of 6 July 2014, or perhaps early on the morning of 7 July 2014, Ms Whittall visited the home of the deceased’s parents, where the deceased stayed from time to time. It was a cold evening and the deceased's mother invited Ms Whittall into the house.

3. The deceased unlocked the flyscreen to allow Ms Whittall to come inside. On the Crown case, Ms Whittall pulled the door open and lunged towards the deceased with a knife in an action which appeared to be one of punching the deceased in the stomach. Having done so, Ms Whittall then turned and ran from the house. As a consequence of the stab wound, the deceased died on 7 July.

4. At the time, Ms Whittall had been diagnosed with a long-standing chronic mental illness for which she was being medicated. On the Crown case, there is at least a reasonable view that she may not have taken all of her medication immediately prior to these events.

5. As things presently stand, counsel for Ms Whittall informs the Court that he anticipated that the issue for trial will be primarily whether Ms Whittall is not guilty of the offence of murder on the grounds of mental illness.

6. On 30 May 2016, this Court found that Ms Whittall was unfit to be tried on the charge of murder and ordered her to be detained, and for her detention to be supervised by the Mental Health Review Tribunal. In accordance with its statutory obligations, that Tribunal has overseen the mental health of Ms Whittall, and has overseen the question of whether she is fit for trial.

7. At a hearing on 9 February 2017, the Mental Health Review Tribunal determined, on the basis of all of the expert material before it and having regard to the recommendations of the mental health treatment team, that Ms Whittall was currently fit to stand trial.

8. The Mental Health Review Tribunal had the benefit of reports from the treating team about the treatment of Ms Whittall over time, and what the experts had observed by way of improvement in her mental health. As well, the Mental Health Review Tribunal was assured by Ms Whittall's solicitor that, from his perspective, she was fit for trial.

9. Accordingly, it became a matter for this Court pursuant to s 29 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to decide if she is fit to stand trial.

10. The Court has received two further expert reports. The first by Dr Daniel Riordan, a consultant forensic psychiatrist with Justice Health. Dr Riordan has been Ms Whittall’s treating psychiatrist for some considerable time and is well familiar with her condition.

11. Dr Riordan concluded that Ms Whittall was fit for trial having regard to the well-known criteria set out in the decision of R v Presser [1958] VR 45, and that although she had ongoing anxiety symptoms, these would not preclude her being fit for trial having regard to the remarks of the High Court of Australia in Kesavarajah v R [1994] 181 CLR 230, provided that she could have support people, being psychiatric nursing staff in Court, and regular breaks as necessary.

12. The second opinion which the Court has is that of Dr Jeremy O'Dea of 29 March 2017. Dr Jeremy O'Dea also gave evidence at this hearing. He is of the opinion that Ms Whittall is currently fit, from a psychiatric perspective, to be tried. It is unnecessary for me to set out in detail the opinions he expresses in writing, nor the opinions which he gave in oral evidence. These documents are available.

13. It is sufficient for me to say that I accept Dr O'Dea's opinion about which he is comfortably satisfied that Ms Whittall is fit to stand trial.

14. Senior counsel for the Crown and counsel for Ms Whittall both submit that the Court, based on the evidence to which I have shortly referred, ought find that Ms Whittall is fit for trial. In all of the circumstances, I am well satisfied that Ms Whittall is fit for trial and find accordingly.

15. I adjourn these proceedings to the arraignments' list on Friday 7 April 2017 in order that a date for trial can be fixed.

16. I note no application for bail has been made. I refuse bail.

17. I direct that Ms Whittall be returned to and accommodated in her current place of hospital treatment.

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Decision last updated: 31 March 2017