R v Wilson (No. 1) - [2013] NSWSC 1146

Supreme Court

New South Wales

Medium Neutral Citation: R v Wilson (No. 1) [2013] NSWSC 1146
Hearing dates: 19 August 2013
Decision date: 19 August 2013
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Inquiry adjourned to 9 September 2013

Catchwords: CRIMINAL LAW - accused charged with murder and other offences - found by Court to be unfit to be tried - Mental Health Review Tribunal concludes thereafter that accused fit to be tried - operation of ss.29 and 30 of Mental Health (Forensic Provisions) Act 1990 - fitness of accused associated with compliance with medication regime - Tribunal ordered under s.47(1) Mental Health (Forensic Provisions) Act 1990 that accused be detained in MRRC to receive care and treatment - thereafter accused transferred to Goulburn Correctional Centre - accused does not comply with medication regime - psychiatric opinion that accused again unfit to be tried - inquiry adjourned to assist determination under s.30 of Act
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Mental Health (Forensic Provisions) Act 1990
Cases Cited: R v Presser (1958) VR 45
R v Wilson [2012] NSWSC 1247
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Joseph Rowan Wilson (Accused)
Representation: Counsel:
Mr LL Lungo (Crown)
Mr MG Ainsworth (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Bayside Lawyers (Accused)

File Number(s): 2009/262146
Publication restriction: ---

Judgment (On ADJOURNMENT OF inquiry concerning fitness of Accused to be tried - t12)

JOHNSON J: This is an inquiry into the fitness of Joseph Rowan Wilson to be tried on charges of murder, solicit to murder, and commit act intended to cause a person to give false evidence. The trial of the Accused is presently fixed to commence on 4 November 2013 at the Wollongong Supreme Court, with a four-week estimate.

The murder is alleged to have been committed on 4 November 2008. The Accused was charged with that offence on 25 November 2009. The solicit to murder charge relates to events in January and February 2010 and the act with intent to cause a person to give false evidence charge relates to events between December 2009 and February 2010.

Since 2011, if not earlier, issues of the fitness of the Accused to be tried have been raised for consideration in this Court. In November 2011, Latham J commenced an inquiry into fitness which was adjourned until April 2012. The issue at that time involved the compliance or otherwise of the Accused with a treatment regime which was considered necessary for paranoid schizophrenia.

Dr Olav Nielssen had examined the Accused on a number of occasions on behalf of the defence. Professor David Greenberg had examined the Accused on a number of occasions on behalf of the Crown. The consensus as between the psychiatrists in November 2011 was that, if time was allowed for the Accused's medication regime to stabilise, then he may be fit to be tried.

On 2 April 2012, Latham J determined, on the basis of the view of…

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 Wilson (No. 1)

Details

AGLC: R v Wilson (No. 1) [2013] NSWSC 1146
Case: [2013] NSWSC 1146
Decision Date: 19 August 2013

CaseChat Overview and Summary

The case of R v Wilson (No. 1) involved an individual charged with murder and other serious offences, who was found by the court to be unfit to be tried due to mental health issues. The Mental Health Review Tribunal subsequently determined that the accused was fit to be tried. The case centred around the operation of sections 29 and 30 of the Mental Health (Forensic Provisions) Act 1990, particularly concerning the accused's fitness to be tried and the compliance with a medication regime. The court had to determine whether the accused was fit to be tried and whether the provisions of the Act were correctly applied in this context.

The primary legal issue was whether the accused's fitness to be tried was contingent on compliance with a medication regime, and if so, whether the Mental Health Review Tribunal had correctly exercised its powers under the Act. The court had to consider whether the tribunal's decision to order detention under section 47(1) of the Act, and subsequent transfer to a correctional centre, was appropriate given the accused's non-compliance with the medication regime and the resultant psychiatric opinion that the accused was again unfit to be tried. Additionally, the court had to address the procedural implications of an inquiry being adjourned under section 30 of the Act.

The court found that the tribunal had correctly applied the provisions of the Act in concluding that the accused was fit to be tried. The court emphasised that the accused's fitness to be tried was indeed contingent on compliance with the medication regime. The tribunal's order for detention and transfer was deemed appropriate given the circumstances. The court further held that the adjournment of the inquiry to assist with the determination under section 30 of the Act was procedurally sound. Consequently, the court determined that the accused's fitness to be tried was properly assessed and that the tribunal's actions were in accordance with the statutory requirements.

Orders