R v Wilson - [2015] NSWSC 1538

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wilson [2015] NSWSC 1538
Hearing dates: 16 October 2015
Date of orders: 16 October 2015
Decision date: 16 October 2015
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
1.   The accused Pearl Marie Wilson is currently unfit to be tried for the offence of murdering Jason Gordon Shepstone at Dapto on or about 11 February 2013.
2. In accordance with Section 14 of the Mental Health (Forensic Provisions) Act 1990, refer the accused to the Mental Health Review Tribunal (the Tribunal);
3.   Vary the conditions of bail previously granted by this court by deleting them all and substituting these:
The accused is –
(a)   To attend the Emergency Department at Shellharbour Hospital by 5pm Monday 19 October 2015 to be psychiatrically assessed, taking into consideration the two emails of Dr Furst dated 16 October 2015;
(b)   To accept all reasonable directions and treatment by the medical staff at Shellharbour Hospital or any other delegated treatment course;
(c)   To attend the Tribunal at such time and place as the Tribunal shall direct;
(d)   To comply with all directions of the Tribunal;
(e)   To reside at XX XXXXX XXXXX Road, XXXXX unless hospitalised
4.   Direct the Registrar to provide the following documents to the Emergency Department, Shellharbour Hospital:
(i)   A copy of these orders
(ii)   A transcript of the evidence taken from Dr Stephen Allnutt and Dr Richard Furst in this inquiry
(iii)   A copy of the emails sent by Dr Richard Furst to Mr Peter Pearsall on 16 October 2014
5.   Direct the Registrar to provide the following documents to the Tribunal:
(i)   A copy of this judgment
(ii)   A copy of these orders
(iii)    A transcript of the evidence taken from Dr Stephen Allnutt and Dr Richard Furst in this inquiry
(iv)   Copies of all exhibits tendered in this inquiry

Catchwords: CRIMINAL LAW - procedure – murder – fitness to be tried – “Presser” principles – accused unfit to be tried
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina
Pearl Marie Wilson
Representation:
Counsel:
Ms K Ratcliffe (Crown)
Mr P Pearsall (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Accused)

File Number(s): 2013/885092013/44091
Publication restriction: None

Judgment

The accused, Pearl Marie Wilson, has been charged with murdering Jason Gordon Shepstone in February 2013. She was then in a relationship with him. She has pleaded not guilty to that charge. A question has arisen as to her fitness to be tried.

Orders

At the hearing today I indicated that I would make orders in terms agreed by the parties. Those agreed were:

1.   The accused Pearl Marie Wilson is currently unfit to be tried for the offence of murdering Jason Gordon Shepstone at Dapto on or about 11 February 2013
2. In accordance with Section 14 of the Mental Health (Forensic Provisions) Act 1990, refer the accused to the Mental Health Review Tribunal (the Tribunal);
3.   Vary the conditions of bail previously granted by this court by deleting them all and substituting these:
The accused is –
(a)   To attend the Emergency Department at Shellharbour Hospital by 5pm Monday 19 October 2015 to be psychiatrically assessed, taking into consideration the two emails of Dr Furst dated 16 October 2015;
(b)   To accept all reasonable directions and treatment by the medical staff at Shellharbour Hospital or any other delegated treatment course;
(c)   To attend the Tribunal at such time and place as the Tribunal shall direct;
(d)   To comply with all directions of the Tribunal;
(e)   To reside at XX XXXXX XXXXX Road, XXXXX unless hospitalised
4.   Direct the Registrar to provide the following documents to the Emergency Department, Shellharbour Hospital:
(i)   A copy of these orders
(ii)   A transcript of the evidence taken from Dr Stephen Allnutt and Dr Richard Furst in this inquiry
(iii)   A copy of the emails sent by Dr Richard Furst to Mr Peter Pearsall on 16 October 2014
5.   Direct the Registrar to provide the following documents to the Tribunal:
(i)   A copy of this judgment
(ii)   A copy of these orders
(iii)    A transcript of the evidence taken from Dr Stephen Allnutt and Dr Richard Furst in this inquiry
(iv)   Copies of all exhibits tendered in this inquiry

The applicable requirements

Under s 9 of the Mental Health (Forensic Provisions) Act1990 (NSW), the Court conducted an inquiry into Ms Wilson’s fitness to be tried. In accordance with s 6 the question of Ms Wilson's fitness had to be determined on the balance of probabilities. Section 12 required that the inquiry not be conducted in an adversarial manner and that the onus of proof as to the question of fitness did not rest on any particular party to the proceedings.
The principles that apply when an accused's fitness is determined are well settled. They are explained in R v Presser [1958] VR 45 at 48, where Smith J said:

"[An 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."

The application of those principles was considered in Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, where an accused with a seemingly unstable psychotic condition was initially found to be fit. Later in the trial there was what might have been a “flare-up” or “florid outbreak”. The question of his fitness thus arose again for consideration, but was not further considered by the trial judge, in circumstances where the trial was close to its end. It was observed by the plurality at [35]:

“… In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried. Of course, that is not to exclude from the jury's consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise.

It was concluded that the trial judge had erred in not dealing again with the question as to the accused’s fitness in accordance with the applicable statutory scheme, when it arose again.

Ms Wilson’s health

There was finally no issue between the parties as to Ms Wilson’s health, or its impact on her ability to interact with her legal representatives, to give them instructions, and to understand or participate in what would be involved in a 3 to 4 week trial of the murder charge which she faces.
Ms Wilson has been examined by a number of experts. The reports of four experts were tendered and Dr Allnutt and Dr Furst were called to give concurrent evidence, they having examined her again earlier this week, Dr Allnutt again this morning.
Initially there was a common view amongst the experts as to the first elements of the Presser test, namely that Ms Wilson had an ability to understand the nature of the charge; she had the ability to plead to the charge and also to exercise her right of challenge; and she also had an ability to understand the nature of the proceedings. Opinions were, however, divided over whether she had the ability to follow the course of the proceedings; to understand the substantial effect of the evidence led; and to make a defence to answer to the charge.
Ms Wilson’s lawyers identified an ongoing deterioration in her health. She was, as a result, further examined, as I have explained.
The result was that a consensus emerged between the experts that Ms Wilson was no longer fit to be tried. Having considered the evidence and the parties’ submissions, I also came to the view that Ms Wilson was not fit to be tried. I also concluded that the opinions and concerns which Dr Allnutt and Dr Furst explained, when giving their concurrent evidence, as to her need for further treatment, had to be reflected in the orders made, in accordance with s 14 of the Act, as well as in Ms Wilson’s ongoing conditions of bail. The terms of those orders were also agreed by the parties.

The circumstances of Mr Shepstone’s death

On the morning of 12 February 2013 Ms Wilson sought help from a neighbour, when she could not wake Mr Shepstone. An attempt at resuscitation was made, but when an ambulance attended, it was soon established that Mr Shepstone had died. He was also found to be covered in blisters.
The account which Ms Wilson then gave included that he had become violent and aggressive while she was making a hot drink, which she had thrown at him. Later she told police that during their argument she had hit him with a metal bar, which she produced and had poured hot water over him. He had laid down on a mattress and had vomited up blood and other stuff, which she had wiped up. He had then gone to sleep and she had laid down with him. In the morning she was unable to wake him and had then gone to her neighbour, who called 000. Ms Wilson later made another statement to police.
On later examination Ms Wilson was found to be suffering bruising and abrasions, as well as injuries to her neck, hand, breast, shoulder and arm, which on her account Mr Shepstone had inflicted.
The cause of Mr Shepstone’s death was established to have been multiple blunt force and heat related injuries over the whole of his body. Ms Wilson was first charged with recklessly causing grievous bodily harm and after post mortem results were received, with murder.

The expert evidence

No evidence was called from Ms Wilson. She has given inconsistent accounts as to what happened to Mr Shepstone, which raised the question of her fitness. As a result, Ms Wilson was examined by the psychiatrists, Dr Furst and Dr Allnutt, and by Dr Hepner and Dr Pullman, both neuropsychologists. Their reports were in evidence and unchallenged affidavit evidence was also led from Ms Wilson’s solicitor, Mr Rees.
Ms Wilson’s background and present circumstances emerged from the histories which she has given to those who have examined her. These accounts differ in detail, but appear to have been consistent with various police and medical records referred to in the experts’ reports. She has a history of considerable deprivation, abuse and serious ill health.
Ms Wilson is of Aboriginal heritage and is now aged 60 years. She has never learned to read or write and has a long history of treatment for mental illness and abuse. She is presently at liberty on bail, living in the community receiving treatment for her various physical and mental health problems. On the expert evidence her mental health has deteriorated to the point that she requires further treatment in hospital.
Mr Rees explained recent events in his unchallenged affidavit. He had also considered audio recordings and notes of past conferences with Ms Wilson and has also discussed her mental state with the solicitor who previously had carriage of her matter and with Mr Pearsall of counsel. He had also considered the reports tendered. He gave a detailed account of the events which had led him to the view that Ms Wilson’s mental state had deteriorated since the Aboriginal legal Service was first retained to represent her. That was consistent with medical evidence as to her declining health, which on the expert evidence, is likely to continue.
Mr Rees explained what had occurred at a recent conference when the question of fitness was discussed with Ms Wilson. He explained ongoing communication difficulties; what appeared to be efforts by Ms Wilson to participate; and her apparent difficulties in understanding and retaining basic information. He also explained her equating Mr Shepstone’s death with proof that she had murdered him and an inability to grasp issues such as intention, or defences of self-defence or provocation.
Dr Furst’s June 2014 report noted that Ms Wilson had an awareness of the charge she faced and responded to questions asked as to the elements of the Presser test. Dr Furst then concluded that she was fit to be tried, notwithstanding her cognitive impairments and associated comprehension and communication difficulties.
Dr Furst also referred to a range of records and documents provided to him, including the results of a March 2013 MRI, which identified infarcts in both hemispheres of Ms Wilson’s brain, consistent with vascular disease, hypertension and diabetes affecting her brain circulation and suggesting vascular dementia. He recommended neuropsychological testing, to established the level of her impairment, also noting that she appeared to suffer chronic anxiety disorder, PTSD, which appeared to have a significant impact on her functioning. He also considered that she had a defence of substantial impairment by abnormality of mind.
Dr Hepner’s August 2014 report referred to the material she had been briefed with, including Dr Furst’s report and various records and documents. Dr Hepner found Ms Wilson to be a poor historian, but noted her report of having been bashed, strangled and suffocated by others on multiple occasions, more than 20, during most of which she had lost consciousness. Dr Hepner administered various tests and also considered the Presser test.
Dr Hepner found that Ms Wilson’s intellectual functioning fell into the extremely low range, with her verbal comprehension falling into the borderline impaired range. There were similar results for working memory, more complex learning memory, as well as memory for spoken and visual information. Her language performance also fell into the impaired range. There were similar poor results on other testing.
Dr Hepner concluded that Ms Wilson had significant impairment in multiple areas of cognitive functioning and that she satisfied the criteria for diagnosis of vascular dementia. Her IQ also fell into the range for a mild intellectual disability. There was, as a result, significant concern that she could not follow the course of any proceedings and that her ability to give a reliable account of events or to instruct her counsel, or decide on any defence was impaired. In the result, Dr Hepner concluded that she was not fit to be tried.
Dr Pullman’s April 2015 report referred to the reports of Dr Furst and Dr Hepner, as well as various records, reports and statements, including those of Ms Wilson. To her, Ms Wilson gave a history which included having suffered a heart attack, while being strangled. Dr Pullman administered various tests, which showed, despite good effort on Ms Wilson’s part, that she had problems with working memory and processing speeds, with her overall intellectual functioning falling into the extremely low range. She also had impaired results in testing of her recent memory and was assessed as having both auditory and visual memory impairments, as well as impaired executive functioning skills and language skills falling into the impaired range.
Dr Pullman concluded that she did not have the cognitive capacity to instruct counsel, follow and comprehend the court proceedings and that given her dementia, that capacity would not improve.
Dr Allnutt’s 7 May 2015 report recounted Ms Wilson’s account that at the time of Mr Shepstone’s death, she was not working, living on a disability support pension, suffering from heart problems and taking a variety of medications. She had been admitted to hospital in the past as the result of overdosing and had made other suicide attempts in her twenties and thirties, when depressed. When Mr Shepstone died, however, she had not been abusing alcohol, but was still using cannabis daily, having commenced its use when aged 27.
Ms Wilson has given an account of being the victim of repeated sexual and other abuse over the course of her lifetime, commencing when she was a child and including at the hands of Mr Shepstone, who she met when aged 51. She said that on occasions she had been choked to the point of blacking out and described suffering anxiety symptoms in the period before Mr Shepstone died, when he was intoxicated.
These accounts were consistent with various police records provided to Dr Allnutt, as well as with medical records and what examination of Ms Wilson revealed. COPS reports between 2001 and 2009 revealed reported domestic violence on multiple occasions in which Ms Wilson was the victim and on others, when Mr Shepstone was the victim and she the person of interest. Those reports include references to Ms Wilson being choked and smothered with a pillow, involving, for example, Mr Shepstone in breach of an AVO in 2008. There was another such report noted in 2012.
Dr Allnutt had also reviewed the reports of Dr Furst, Dr Hepner and Dr Pullman. He also saw a DVD of Ms Wilson’s police interview.
Ms Wilson’s medical records revealed that she has suffered significant ill health including diabetes, hypercholesterolemia, hypertension, retinal aneurism, cloeithiasis, fractures and abscesses. Her cardiovascular disease resulted in her requiring an operation in 2012. She had also been diagnosed with depression, alcohol abuse and anxiety, as well as vascular and/or alcohol related dementia.
Dr Allnutt noted that after her arrest in 2013, Ms Wilson was admitted to a mental health facility from 21 February to 22 March, where she remained as a voluntary patient, then being at risk of self harm. She was then diagnosed as suffering grief and depressive symptoms, as well as aggression. An MRI was found to be abnormal and she was referred to a neurologist. There had also been a diagnosis of PTSD and cognitive impairment, with her IQ falling in the range for mild intellectual disability.
Dr Allnutt found Ms Wilson to be suffering mild depressive symptoms, arising from her PTSD, demonstrated memory problems, mild intellectual incapacity and vascular dementia, consistent with the findings of the CT scan of her brain. He considered then, however, that with breaks allowed during the hearing to address her cognitive problems, she was fit to stand trial.
That opinion altered after Dr Allnutt’s most recent examination. At the hearing it was revealed that it had been agreed between Dr Allnutt and Dr Furst, not only that Ms Wilson was suffering moderate to severe depression, but that she was also suffering a range of psychotic symptoms, including various auditory phenomena and unusual ideas and beliefs. They included that Mr Shepstone’s spirit is in her house; that she is being followed; that paedophiles are intent on killing her; and that it was not Mr Shepstone, but another person, who had died.

Dr Allnutt considered it unlikely that these symptoms were feigned and that it was possible that they would respond to treatment. Dr Furst agreed. Given, however, her underlying cognitive impairment and dementia, which would continue to deteriorate, they both considered it unlikely that she would recover. They also agreed that she needed to be readmitted, for further treatment in hospital, to give her the best possibility of some recovery.
In the circumstances, there was, however, no longer any disagreement that Ms Wilson could not meet the Presser test. Whether there was any prospect of recovery depends on a range of complex matters, including the basis of her psychotic symptoms, including whether or not they are psychotic memories. That cannot presently be determined.
Given her frailty and deteriorating mental health otherwise, both Dr Furst and Dr Allnutt considered it unlikely that Ms Wilson will recover sufficiently to stand trial on a charge which raises complex issues, which she would have to engage in over a period of some 3 to 4 weeks. They agreed however, that further treatment provided the best possibility of such a recovery.
In the face of the common view which the experts had reached, when considered in light of the problems described by Mr Rees in advising Ms Wilson and obtaining instructions from her, the conclusion that she was not fit to be tried, was unavoidable, given the applicable principles. I was satisfied that she did not meet the Presser test and that accordingly, it had to be concluded that at present, she is not fit to be tried.
It was in those circumstances that the orders which the parties agreed must be made.

ORDERS

For the reasons given, I make orders in terms agreed by the parties.

**********

Amendments

16 October 2015 - amendment to paragraph [37] - missing word inserted

Decision last updated: 16 October 2015

Medium Neutral Citation:	R v Wilson [2015] NSWSC 1538
Hearing dates:	16 October 2015
Date of orders:	16 October 2015
Decision date:	16 October 2015
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	1. The accused Pearl Marie Wilson is currently unfit to be tried for the offence of murdering Jason Gordon Shepstone at Dapto on or about 11 February 2013. 2. In accordance with Section 14 of the Mental Health (Forensic Provisions) Act 1990, refer the accused to the Mental Health Review Tribunal (the Tribunal); 3. Vary the conditions of bail previously granted by this court by deleting them all and substituting these: The accused is – (a) To attend the Emergency Department at Shellharbour Hospital by 5pm Monday 19 October 2015 to be psychiatrically assessed, taking into consideration the two emails of Dr Furst dated 16 October 2015; (b) To accept all reasonable directions and treatment by the medical staff at Shellharbour Hospital or any other delegated treatment course; (c) To attend the Tribunal at such time and place as the Tribunal shall direct; (d) To comply with all directions of the Tribunal; (e) To reside at XX XXXXX XXXXX Road, XXXXX unless hospitalised 4. Direct the Registrar to provide the following documents to the Emergency Department, Shellharbour Hospital: (i) A copy of these orders (ii) A transcript of the evidence taken from Dr Stephen Allnutt and Dr Richard Furst in this inquiry (iii) A copy of the emails sent by Dr Richard Furst to Mr Peter Pearsall on 16 October 2014 5. Direct the Registrar to provide the following documents to the Tribunal: (i) A copy of this judgment (ii) A copy of these orders (iii) A transcript of the evidence taken from Dr Stephen Allnutt and Dr Richard Furst in this inquiry (iv) Copies of all exhibits tendered in this inquiry
Catchwords:	CRIMINAL LAW - procedure – murder – fitness to be tried – “Presser” principles – accused unfit to be tried
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Regina Pearl Marie Wilson
Representation:	Counsel: Ms K Ratcliffe (Crown) Mr P Pearsall (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused)
File Number(s):	2013/885092013/44091
Publication restriction:	None