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 ‘minimum standards’. Such minimum standards includes the ability to understand the offence with which the accused has been charged, the nature of the proceedings, and the effect of any evidence given against the accused. Additionally, his Honour said that an accused should possess sufficient capacity to be able to decide whether he or she will rely upon a defence, and, if so, be in a position to communicate either to the Court or counsel, the facts necessary for the defence".

It is the Presser test summarised in that way which I apply in this case.

Evidence in the Inquiry

7 The evidence adduced in the inquiry has been entirely documentary in nature. The Crown has tendered a folder of documents (Exhibit A), including reports of psychiatrists, statements of witnesses, and copies of various interviews involving the Accused. In particular, for present purposes, within those documents are reports of Dr Olav Nielssen, dated 31 July 2008 and 24 September 2008 (for the Accused), and a report of Dr Stephen Allnutt, dated 27 August 2008 (for the Crown). Both Dr Nielssen and Dr Allnutt are well known to the Court as most experienced forensic psychiatrists.

8 It is the first report of Dr Nielssen dated 31 July 2008 which raised a question concerning the fitness to be tried of the Accused. I will return to that report shortly.

9 Tendered in the Accused’s case on the inquiry is a further report of Dr Nielssen dated 13 October 2008 (Exhibit 1). Also read in the Accused's case on the inquiry is an affidavit of his solicitor, Frances McGowan, sworn 26 September 2008.

10 No oral evidence was adduced and no witness was cross-examined in the inquiry.

11 It is not necessary, in the light of the evidence which is now before the Court and the submissions made, to elaborate in any detail upon the evidence before the Court. It is sufficient to note that Dr Nielssen's first report of 31 July 2008 raised a question concerning the Accused's fitness to be tried in one respect. It was not said in that report that the Accused did not understand the proceedings or was not capable of entering a plea, nor that he was incapable of following proceedings. The issue which arose, as to which a question was raised as to fitness, focused upon his ability to give instructions to his legal advisors with respect to an aspect of his defence.

12 Dr Allnutt examined the Accused and reached the firm conclusion that he was fit to be tried. Dr Allnutt had the benefit of Dr Nielssen's first report in expressing that conclusion. Dr Nielssen's second report of 24 September 2008 involved a documentary review and consideration by Dr Nielssen of Dr Allnutt's report. Dr Nielssen, at that time, maintained his opinion concerning the Accused's fitness to be tried, expressing the conclusion that he was not fit to be tried on what may be described as the narrow basis which I have mentioned.

13 Dr Nielssen examined the Accused today and there was an opportunity for a further conference with him. Dr Nielssen has produced his latest report today, in which he states "I am now of the opinion that he is on balance fit for trial". Dr Nielssen explains the reason for this conclusion and, in particular, states:

“Mr Wilkinson was able to provide a version of the events that was consistent with the account he gave you this morning and could form the basis of instructions in his defence. His account was assessed to be a plausible summary of what took place, in contrast to his previous version".

14 Accordingly, the psychiatric evidence before the Court on the inquiry is now all one way. It points to the fitness of the Accused to be tried.

15 The psychiatric evidence before the Court, and in particular that of Dr Nielssen, explains how the question of fitness has come to be raised. The question for me, however, is what the evidence demonstrates as at today, concerning that question. The two doctors whose opinions are before the Court (who, as I have said, are most experienced forensic psychiatrists), are of the same view that the Accused is fit to be tried. Each of the medical practitioners, in reaching that conclusion, has had specific regard to the principles contained in the Presser test.

Finding on Inquiry

16 I have had regard to the totality of the evidence called at the inquiry. The evidence is clear, in my view, as to the Accused's present fitness to be tried. I am satisfied, on the balance of probabilities, that the Accused is fit to be tried on the charges of murder and arson. I make that finding for the purposes of ss.10(1), 13 and s.15(b) Mental Health (Criminal Procedure) Act 1990.

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