R v Wilkinson - [2008] NSWSC 1237

CITATION: R v Wilkinson [2008] NSWSC 1237

HEARING DATE(S): 13 October 2008

JUDGMENT DATE :
13 October 2008

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 13 October 2008

DECISION: Accused is fit to be tried on the charges of murder and arson.

CATCHWORDS: CRIMINAL LAW - accused charged with murder and arson - inquiry into fitness to be tried - accused fit to be tried

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990

CATEGORY: Principal judgment

CASES CITED: R v Presser (1958) VR 45
R v Rivkin (2004) 59 NSWLR 284
Subramanian v The Queen (2004) 211 ALR 1; [2004] HCA 51

PARTIES: Regina (Crown)
Paul James Wilkinson (Accused)

FILE NUMBER(S): SC 2008/2802

COUNSEL: Mr JP Kiely SC (Crown)
Mr TM Healey (Accused)

SOLICITORS: Director of Public Prosecutions (Crown)
McGowan Lawyers (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

13 October 2008

2008/2802 R v Paul James Wilkinson
JUDGMENT (on fitness of Accused to be tried)

1 JOHNSON J: This is an inquiry conducted for the purpose of s.10 Mental Health (Criminal Procedure) Act 1990 to determine whether the Accused, Paul James Wilkinson, is fit to be tried for the offences of murder and arson.

2 The Accused has been charged that on or about 28 April 2004 at Sydney, in the State of New South Wales, he did murder Kylie Labouchardiere, and that on 16 May 2004, at Picnic Point, in the State of New South Wales, he did intentionally damage the property at 38 Kelvin Parade, Picnic Point, the property of Garry Phillips, by means of fire.

Relevant Legal Principles

3 Section 12(3) Mental Health (Criminal Procedure) Act 1990 provides that the onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The proceedings are by way of inquiry which is not to be conducted in an adversary manner: s.12(2).

4 The sole question to be determined is whether I am satisfied on the balance of probabilities that the Accused is fit to be tried for the alleged offences of murder and arson.

5 This issue falls to be determined by application of what is commonly described as the Presser test. That test emerges from the decision of Smith J of the Supreme Court of Victoria in R v Presser (1958) VR 45 at 48. This is the test concerning fitness to be tried to be applied in an inquiry of this type: R v Rivkin (2004) 59 NSWLR 284 at 294-295 [279]-[286].

6 In Subramanian v The Queen (2004) 211 ALR 1; [2004] HCA 51, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ, in a joint judgment, summarised the Presser test in the following way at 5 [9] footnote 2:

“In his reasons, Smith J suggested that before a trial can proceed without unfairness or injustice, an accused should meet certain…

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 Wilkinson

Details

AGLC: R v Wilkinson [2008] NSWSC 1237
Case: [2008] NSWSC 1237
Decision Date: 13 October 2008

CaseChat Overview and Summary

The case of R v Wilkinson was heard before the Supreme Court of Victoria, where the accused, Wilkinson, faced charges of murder and arson. The prosecution alleged that Wilkinson had committed the murder of an individual and subsequently set fire to the premises where the crime took place. The court was tasked with determining Wilkinson's fitness to stand trial, as concerns had been raised regarding his mental state. The court was required to decide whether Wilkinson was fit to be tried according to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

The legal issues before the court involved assessing the accused's fitness to be tried, considering his mental state and whether he understood the nature and object of the proceedings against him. The court had to consider the evidence provided by medical experts, including psychiatrists and psychologists, who had evaluated Wilkinson's mental health. The court also needed to determine whether Wilkinson had the capacity to follow the proceedings, comprehend the evidence, and instruct his legal counsel effectively.

The court found that Wilkinson was fit to be tried, based on the evidence presented by the medical experts. The court determined that Wilkinson's mental condition did not impede his understanding of the proceedings or his ability to participate in his defence. The court concluded that Wilkinson was capable of comprehending the nature and object of the proceedings and had the capacity to follow the evidence and instruct his legal representatives. Consequently, the court ruled that Wilkinson was fit to stand trial, and the case proceeded accordingly.

The Supreme Court of Victoria confirmed that Wilkinson was fit to be tried on the charges of murder and arson. The court's decision was based on the medical evidence presented, which indicated that Wilkinson was capable of understanding the proceedings and participating in his defence. The court's ruling allowed the case to progress, and Wilkinson faced trial on the charges against him.

Orders